Professional Reading: Is Open-Source the Future of eBook Legal Publishing?

Saint Louis University School of Law professor Matthew Bodie's The Future of the Casebook: an Argument for an Open-Source Approach has been published in the Journal of Legal Education. [57 J. Legal Educ. 10 (2007) Westlaw | SSRN] In it he writes "[a]lthough the development of electronic casebooks seems so logical as to be inevitable, the way they will come about is not. Now, before the technology has taken hold, there is time to consider exactly how we should use the technology as we proceed into the future." [emphasis supplied].

Well, the technology has been around for a very long time. One (perhaps the only) benefit of the Kindle buzz is that law profs are indeed asking when and how will casebooks go digital. See When will e-books become a platform for casebooks? Tim O'Reilly hits the nail on the head. "[H]andheld devices are nice to have, not need to have -- the real breakthrough is just making electronic copies available at a fair price." Bad Math Among eBook Enthusiasts. And that's what law students want. So while the technology has been around for a long time, what's "new" is that the "push" is really coming from today's law students who now expect their materials to be digital. Consumer demand will make the development of electronic casebooks, hornbooks, treatises, and other monographic works inevitable.

LawLibTech writes "Will Kindle ever be an option for legal content? Will our users load up cases, statutes and treatises on a Kindle-like device? Never say never. The book may not die, but the format may eventually fade away, given the right tools." Obviously, I think Kindle is not the right tool now nor will "Kindle 2.0" likely become the right tool later if the gadget doesn't become more versatile (e.g., extend its file format options) and Amazon doesn't modify Kindle's TOS.

The Total Package. While the Kindle buzz has stimulated interest in the legal academy, the development model will not follow along the lines of Kindle. See Beyond the Kindle Hype, Kindle won't catch fire in law schools and Advances in Book-Hauling Technologies, because students want to manipulate digital text by updating it, creating digital study aids, and sharing the text and the study aids they create. Tweaking Kindle as suggested in Another Perspective on the Kindle simply is not enough to get beyond the fact that Kindle is just a "book-hauling" eReader far too limited in functionality to meet law student demands. It's not the gadget; it's the total package of content, functionality, and services provided to law students for their already commoditized devices, their desktops and laptops, that will win out.

As noted previously (see also here), one digital text-study aid product is leading the way namely, the AspenStudyDesk. It is a great little product that allows students to integrate some of the Company's eBooks into an outline/note-taking application but, unlike Lexis and Westlaw, the Company doesn't have the sales force on site to promote it directly to students. (Many academic law librarians are doing the job for the Company.) The problem with AspenStudyDesk is that it is limited to a small number of Aspen eBooks and it is not open-source. For reasons discussed below, AspenStudyDesk may not survive if it doesn't go open-source.

I expect Lexis and Thomson-West to join this market and dominate it eventually by allowing their eBooks to be customized and updated via their online research services. Hopefully, both will offer two options for their eBooks: (1) an word processing application that can be downloaded and (2) a web-based service that allows students to work collaboratively. In my opinion, Thomson-West is in the best position to take the lead in the academic market for a number of reasons. The two most important ones are (1) the Company has a more comprehensive catalog of appropriate titles that one day will be sold as eBooks and (2) student exposure to Thomson-West through the widespread use of TWEN for e-course management already has most students thinking "West first." But will either Lexis or Thomson-West go open-source? Unlikely.

The first "eBook-eStudyAid" application vendor that solves the DRM issues sensibly when it integrates eBooks and online research services in an open-source model wins on technical merits but that's hardly inevitable; in fact it is probably unlikely once Lexis and Thomson-West bring products to the market. Matthew Bodie's article doesn't approach the issue this systematically but it certainly is a step in the right direction, even if only for wishful thinking purposes. Here's the SSRN abstract for Matthew Bodie's article:

This paper argues that the legal academy should take this opportunity to implement an open source approach to future course materials. Guided by analysis and examples of commons-based peer production such as open source software, professors could establish electronic commons casebooks with a myriad of materials for every course. These joint databases would unshackle individual creativity while engendering collaboration on levels previously impossible. Although there may be concerns that such a project would not draw any interest, or might be swamped by too much interest, the successes of other peer-production projects demonstrate that such concerns are generally unwarranted or manageable. Copyright ultimately poses the biggest difficulty, but even that barrier can be circumvented to greater and lesser degrees. Although as yet an untried experiment, an open source approach has the potential to open a new era in legal pedagogy.

[JH]