The New York Times reports that Carl Malamud and his non-profit organization, Public.Resource.Org, have begun an ambitious campaign to make US court decisions available to the public for free online. According to its website, Public.Resource.Org seeks to create an "unencumbered public repository of federal and state case law and codes." To do this, Malamud will be scanning West Publishing's federal and state case reporters,"extracting the public domain content and republishing it on the Internet for use by anyone." Malamud has already started with West's Federal Supplement, Federal Reporter, and Federal Appendix. So far, only cases from the 1880s are up on the website.

Interestingly, Malamud 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 US government making records from the Securities and Exchange Commission (EDGAR) and the Patent and Trademark Office available to the public for free.

Lawyers have long anticipated a move of this kind because court decisions and statutes are not copyrightable. West Publishing and its primary competitor, LexisNexis, do not own the copyrights to the decisions that they publish in print or post to their subscription-based online services. Rather, the publishers own the copyrights only to the content that they add to the published opinions, such as syllabi (which summarize the general holding of each opinion), head notes (which summarize specific points of law discussed in each opinion), and "key numbers" (which categorize points of law into different legal topics and subtopics for research purposes). They also own the copyrights to the particular selection and arrangement of the opinions in their case reporter volumes. This is a relatively thin layer of copyrightable material -- it is fairly clear that a competitor or interested citizen 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), cert. denied, 526 U.S. 1154 (1999).

Nevertheless, West Publishing and LexisNexis have controlled the legal publishing field for years, and with it, access to the lion's share of state and federal court decisions. For non-lawyers (and for some lawyers as well), control by the big publishers has meant that gaining access to a comprehensive source for court decisions requires sneaking into a law library or something akin to that. Federal (and some state) courts have made their decisions available online in recent years, but the coverage is still somewhat spotty, and these sources generally lack search functionality.

This lack of meaningful access has serious consequences for everyone, not just lawyers. As Malamud wrote in a letter to the head of West Publishing last week:

[W]e wish to make this information available to a population that today does not have access to the decisions of our federal and state courts because they are not commercial subscribers to to one of the handful of services such as your award-winning Westlaw tools. Codes and cases are the very operating system of our nation of laws, and this system only works if we can all openly read the primary sources. It is crucial that the public domain data be available for anyone to build upon.

We can only hope that West and Lexis take a cooperative stance on this issue and do not unnecessarily delay the inevitable -- the effective release of these public domain materials into the public domain. Judicial opinions can then take their rightful place in our democratic system of government, serving as a valuable resource for understanding, commenting upon, and critiquing our social, political, and legal system.