Leslie Street and David R. Hansen. Who Owns the Law? Why We Must Restore Public Ownership of Legal Publishing, 26 J. Intell. Prop. L. 205 (2019)
“Who owns the law? In the United States, most law is published by a handful of companies. Among the largest are Thomson Reuters, a Canadian mass-media information firm, and RELX Group, a Dutch analytics and information company. With very few exceptions, almost all “official” versions of state statutory codes and regulations are published by those two companies. Thomson Reuters also controls the National Reporter System, the caselaw reporters which are the required version for citation before most U.S. courts. Publication, of course, is not synonymous with “ownership.” Or at least it should not be.2 But, in the U.S. legal system, those two concepts have begun to merge; publishers now use powerful legal tools to control who has access to the text of the law, how much they must pay, and under what terms. This paper is about how that transfer of control occurred, and how it is harmful. Meaningful access to the law is a fundamental prerequisite for due process, and ultimately the rule of law, yet the problem of private control is longstanding3 and growing worse in the advent of electronic publishing and publisher consolidation. Part I of this article explains why effective access to the law is so important. Part II explains some of the challenges with control over official, authentic legal publications and how control over that content has come to rest with a handful of private companies. Part III reviews how those companies assert control over published law through threat of legal actions based on copyright, contract law, website terms of use, and even criminal statutes. Part IV concludes with several practical and aspirational steps for information intermediaries, such as libraries, the courts, and state legislatures to take. Ultimately, government bears responsibility for adequately publishing its law in formats that are accessible and useable by the public. In 2019, that means free, unrestricted online access to official, authenticated, and reliably preserved primary legal texts. Short of that ideal, we suggest ways to at least remove barriers for trustworthy, beneficent third parties—of which there are many, eager and willing—to collect, preserve, and make available official copies of the law to the public for free online…”