In John Willinsky’s, Scholarly Publishing Has Its Napster Moment, it’s clear that unlimited “napster”-like copying was a challenge to academic publishing, and notably to some of the large academic publishing houses that dominate legal publishing.
The situations are similar, and worldwide legal publishing seems just as concentrated, as noted by Gary Rodrigues. It’s not, however, clear if the risks are the same in the legal-publishing world, or if they apply to (law-)books.
The Common Bits
Legal publishing starts out very similarly to academic publishing, with an author who is paid for the work he does, but not for publishing it. In academic publishing, a researcher writes a paper to describe his work, while in legal, publishing, a lawyer is paid to write an argument and a judge a decision. In both, a significant business grew up in printing and distributing the articles and decisions in journals which were the sold to libraries.
Academic and law libraries struggle to be able to pay for the journals they need, often taxing their patrons to augment their funding. The problem is horrid in academia, but a bit less so in a profit-making business like the law. A law office can make library costs part of their overhead, and some of the cost can legitimately be billed to the customer.
What’s not similar in legal publishing is the degree of indexing, cross-referencing and just plain human judgment provided by the publishers along with the decision..
What’s different: Value Added
In just a head note alone, two additional extra services are provided: a summary of any important decisions or rules within the case and a syllabus of all the points decided. Most publishers with an on-line service also provide links for each of the other cases cited in the body of the case, and significant on-line services to build on those linkages..
When one goes from articles and judgments to books, there’s even more work done by the publisher. The indexing, tables of cases and other supporting matter is not charged for: it’s just part of the deal. The massive effort to write Gold’s or a Halsbury’s had to come out of the book sales.
All of this is at risk, especially when you’re publishing articles or decisions that are of moderate size. I can download a paper at my convenience, read it, search it for keywords and print it on a perfectly ordinary office printer to refer to later.
The saving grace for a publisher is that the marketplace for Canadian case-law is a small and unusual one: it consists of people who are preferentially law-abiding(!)
The law is also a business with reasonable margins and the ability to bill customers for useful third-party services, such as “forty minutes researching on quicklaw”, legitimately spent to save multiple hours of manual effort.
This speaks to articles, reports and decisions in the law, but what about books?
Books or, Given Lemons, Make Lemonade
My publisher, O’Reilly, faced a similar risk with technical books such as Using Samba. They had to invest a significant sum of money in pre-production work and illustrations for everything they printed, even if it didn’t sell. They didn’t have to pay the author for a failure, but everything else cost money, effort, printing time and warehouse space. To them, free copying looked like the end of their business.
My editor, Andy Oram, however, looked at the risk of copying and turned it on it’s head. He negotiated a deal where every copy of the Samba program included a copy of Using Samba, so if you wanted a copy, you would get one as part of the normal free download.
There were no limitations on distribution or personal printing, and the license reserved only commercial printing rights to the publisher. The net result is that the book was widely used as a reference on Samba, at no apparent benefit to O’Reilly.
What surprised the rest of us was that the on-line readers bought the physical book in great numbers. We went from the third-selling book on the subject to the first in a matter of weeks, and the book was one of O’Reilly’s best sellers for the year.
Readers buy books. To be precise, on-line readers buy printed books. They value their convenient form, they make notes in the margins and they lend them to friends. They preferentially buy books that are available on-line, partly because they know they’re not buying a “pig in a poke”, and additionally because the on-line copies are searchable, and in effect serve as a superior index into the printed copies.
Andy knew that, and sold a lot of copies of Using Samba. O’Reilly subsequently found ways to provide a search service for their books as well as free samples, all as part of their on-line offering, Safari. Other publishers noticed that, and have found variations that work for both fiction and non-fiction.
The “Unfair Advantage” of Physical Books
Part of the reason that people will buy books is that they’re of a convenient physical size. Samba is 388 pages, and when printed on book-weight paper, is just under an inch thick. Gold’s at 1600 pages is only a bit less that two and a half inches thick, courtesy of being printed on amazing super-thin paper.
Printing Samba on ordinary office-printer paper is a total waste of time and materials: you get an impractical wodge. The galleys were more than four inches thick, on thinner-than-everyday paper. Your own copy of Gold’s from the office printer would be unusable by anyone smaller than a professional weight-lifter.
The Fair Advantage of Topicality
Gold’s is an annual. It’s subject matter changes quietly each year, and much of the work that went into writing headnotes and articles about important cases contributes to making it possible to update it each year. It makes good sense to subscribe to it, and get a new copy each year.
Put together with the unusual marketplace, the weight of an ill-printed book and the value of regular updates, the traditional print publishers have have a worthwhile product even if the contents are copyable easily and without cost.
However, the printed-book advantage only lasts until someone sets up a bootleg print-on-demand service. After that, the dynamics of publishing change.
At the moment, we have a dynamic equilibrium, and our traditional large-scale publishers continue to support Canadian legal publishing. Dynamic equilibria change, though, when circumstances or technology changes.
At some point, a publisher who is losing their shirt on academic articles could stop doing any articles and reports. Another publisher might stop checking the copyrights on single-copy print-on-demand jobs.
Until we have our own Andy Oram and turn the ease of copying to the advantage of our publishers, we as their customers could be harmed by a failure in our very centralized, very traditional publishing structures.
In my view, it’s time to innovate. Print-on-demand looseleafs, anyone?
 Alan D. Gold, The Practitioner’s Criminal Code. Markham, On (Lexis Nexis)
A copy of the 2010 edition has pride of place on my bookshelf, right beside Donald Knuth’s The Art of Computer Programming.
Original URL: http://www.slaw.ca/2016/06/01/unlimited-copying-versus-legal-publishing/