1.8 Million Steps Forward in the Direction of a Comprehensive Public Case Law Archive

Public.Resource.Org and Fastcase, Inc. announced this week that they will make 1.8 million pages of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754, available in a free public archive. The entire archive will be in the public domain and usable by anyone for any purpose.

Lawyers have long anticipated -- and hoped for -- such a case archive because court decisions and statutes are not copyrightable. West Publishing and its primary competitor, LexisNexis, do not own the copyrights to the decisions they publish; they own the copyrights only to the content that they add to the published opinions. This is a relatively thin layer of copyrightable material, and a competitor could copy and distribute cases found in West's reporters, so long as the syllabi, head notes, and "key numbers" were redacted, and so long as the reproductions did not duplicate the West reporters' original selection and arrangement of cases. See, e.g., Matthew Bender & Co. v. West Publishing, 158 F.3d 674 (2d Cir. 1998).

According to the announcement:

“The U.S. judiciary has allowed their entire work product to be locked up behind a cash register,” said Carl Malamud, CEO of Public.Resource.Org. “Law is the operating system of our society and today's agreement means anybody can read the source for a substantial amount of case law that was previously unavailable.”

Fastcase, the leading developer of next-generation American legal research, has agreed to provide Public.Resource.Org with 1.8 million pages of federal case law. This is a marked departure for the online legal research industry, which traditionally has charged expensive subscription fees to access this information. . . .

Fastcase has reversed the traditional subscription model for lawyers, contracting directly with 11 state bar associations to make the national law library free for lawyers in their states. “Through this agreement with Public.Resource.Org, we are proud to expand our efforts beyond lawyers, and to make more of the law available to the general public at no cost,” Walters said.

The agreement calls for definitive paperwork approved by both parties within 30 days with Public.Resource.Org making developer snapshots of the archive available in early 2008. Public.Resource.Org is represented by the Electronic Frontier Foundation in this transaction. The cases will be marked with a new Creative Commons mark—CC-Ø—that signals that there are no copyrights or other related rights attached to the content.

We've been following Carl Malamud's work in this area for some time now, and should note that he has a successful history of challenging publishers and getting government information released to the public. In the 1990s, he spearheaded a campaign that led to the U.S. government making records from the Securities and Exchange Commission (EDGAR) and the Patent and Trademark Office available to the public for free.

Apparently this transaction represents a one-time purchase of the data, which will be integrated into several sites, including the Legal Information Institute and AltLaw. Public.Resource.org intends to do more than just dump the data into a new archive, however, by adding open source “star” mapping software, which will allow the insertion of markers that will approximate page breaks based on user-furnished parameters such as page size, margins, and fonts, and by using “wiki” technology to allow the public to move around these “star” markers, as well as add summaries, classifications, keywords, alternate numbering systems for citation purposes, and ratings.

We'll be watching for further announcements from from Public.Resource.org about the availability of other case law, including Federal District and pre-1949 Appellate decisions.


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