Misunderstood? West Publishing as Content Provider

I read with interest this morning, Simon Chester's interesting post on SLAW about Thomson Reuters' Bold Leap to become a software company. It's an interesting piece that gives additional perspective on the announcements TR made at the recent blogger event in St Paul and blogged about by many worthy commentators, such as +Jean O'Grady, +Jason Wilson and +Greg Lambert, to name a few.

The over-arching theme of the reactions to TR's announcement that they now see themselves primarily as a "software solutions" company as opposed to a "content" company is that this is a departure from what West Publishing once was. While I agree the announcement is significant, it's also an interesting glimpse into their own self-image problems.

While it is true that on the surface, West has always been primarily a "content" company, there's a significant misunderstanding about exactly what that means in the context of West Publishing Company. Most observers, lawyers and librarians tend to see West as the producer of the National Reporter System, Digests and Westlaw as their bread and butter. And because each product is so large, it's easy to see them as the primary things they do, produce content. Encyclopedias, treatises, and educational materials pale in volume so seem minor within the West universe of business. It appears that West has always seen themselves in this light, too.

But if you look more closely at their catalog over the years, the most significant product of all is rarely mentioned or given the light of day. While the National Reporter System made West's millions and billions, it would have failed without a method for using the materials. From the start, West's Topic and Key Number System was the thing that actually made the reporters useable and made the company a success. At the turn of the 19th Century Chancellor James Kent complained about the proliferation of case law proclaiming that so many cases were being published that it was driving our legal system into ruin. The rise of the great treatises and encyclopedias of that century were partly a response to that general complaint. West Publishing in its early days was all about publishing more cases, not fewer, so there needed to be tools that facilitated the use of the case law. The Topic & Key Number System and Digests provided the indexing needed to make the case law accessible.  All the secondary materials that West produced over the years were crucial commentary that gave sense to the mass of cases produced by West.

The content produced by West, all the primary case law and statutes was not West's main product at all, it was their indexing, commentary and, later, computer algorithms (squirrelly as the are!) that facilitated lawyers and scholars access to the primary law that they needed. There are twelve million published cases. The fact is, without systems and services that facilitate their use, simply publishing twelve million cases is worthless. Therefore, West's main product over the years, wasn't primary law, or even the secondary materials, it was their indexing structure and systems that made that primary law useful.

Perhaps West was a service company all along and just didn't know it.... All along, West has been fighting with potential competitors who came along and tried to publish the cases. They defended their pagination in attempt to strengthen their hegemony in the field of publication of case law when all along it wasn't really their strong suit: it was their finding tools.

The Future of Primary Law

West's (OK, Thomson Reuters, technically, but it will always be West to me) announcement that they are shifting focus on becoming a legal software/services company rather than a being primarily a content "creator," should send a chill throughout the law community.

 +Jason Wilson's excellent blog post summarizing the goings on the TR blogger's summit got me thinking about the consequences if West's commitment to creating content actually does become a lower priority. While it's true that more and more primary law is becoming available via "free" websites and services, the quality of these materials is actually poor compared to the quality of the materials produced by West (or Lexis, Fastcase, etc.). Careful editing and indexing of judicial opinions that premium vendors provide is incomparable in the "free law" world.

While I applaud the efforts of the Free Law movement, in my opinion, there is too little attention being paid to be sure that the free law is of useful quality. After all, even the Durham Statement-movement fails to provide digital content that's useful beyond simply finding an particular article and then printing it or reading it. Virtually all digital commons and digital sources of primary law function in the same way: if you know the opinion (or article) that you want to read, they work great. But if you try to find a case (or article) on a specific topic, you need to use a resource behind a pay wall, because none of the Free Law resources provide indexing, metadata that facilitate's online searching.

At the present, Westlaw, LexisNexis, +Fastcase, HeinOnline, Bloomberg Law and a few others are the only ones building digital content that is actually useful for online researchers. Other free sources do what they do as well as can be expected, but concepts such as federated searching across free online law reviews, digital commons, state supreme court websites, etc., virtually non existent.

This is the greatest crisis that I see facing the the legal profession, and especially law librarians today: Insuring that digital content produced by amateurs is useful. This is one thing that tech services librarians can work on: creating new levels of description, classification and meta data to online resources that may make disparate digital resources accessible through the use of federated search engines that are yet to be developed.