I think that Lexis and Westlaw could give away all their primary legal materials for free and still be critical players in the field, for the value that their catalogs of treatises, form books and encyclopedias bring to the work of conducting legal research. I'd go so far as to say that without secondary materials, legal research is virtually impossible.

My company Fastcase is in a somewhat unique position on both sides of this discussion. We are a commercial publisher with more than 380,000 subscribers — but we are also the publishers of one of the largest free law libraries online, the Public Library of Law (PLoL), and we collaborated with Public.Resource.org (and Justia) on liberating U.S. Supreme Court and Court of Appeals decisions online for free in bulk. With that perspective, two brief observations:

1) The question of whether free services will replace commercial ones is a bit of a strawman. To me, the bigger issue is whether the bundling strategy of traditional publishers — to wit, bundling services like headnotes, key numbers, or citators with primary law — can long survive. Because Westlaw and LexisNexis have traditionally bundled these "editorial" services with primary law, consumers who only needed access to primary law had to pay premium prices for access.

When we democratize primary law, new competitors (like us) will innovate and build smarter services, perhaps even bettering the older editorial services — just like Google's search algorithm replaced Yahoo's "editorial" taxonomy of the Web. (As a self-serving example, many people prefer Fastcase's citation analysis and data visualization tools to the older taxonomic tools.) Free law makes this innovation possible.

Some users need the traditional "editorial" services. But many do not — they buy the editorial enhancements because they have to — editorial services they don't need are bundled with the primary law. As Bob notes, there will always be a market for the editorial services — but it's likely much smaller than the existing market, and inflated by bundling.

So a better question might be: If the law is democratized by the government, universities, and public-spirited companies; and if innovators build smarter tools to search primary law, won't that cut deeply into (or end?) the bundling business model of traditional publishers?

Or more concisely: Isn't free law the end of duopoly profits in legal research?

2. I love Bob's Tinkerbell analogy. It's exactly right. The clapping sound in this market is money, and as long as everyone keeps clapping (or paying), Tinkerbell is going to be just fine. But what happens if people stop clapping?

Superb topics for an unconference! Denver 2010?

There are two things that jump out at me about the difference between the Tinkerbells and the free sources: cost and audience.

Those who do not have to worry about the cost of Westlaw or LexisNexis are more likely to use it. The future of free legal information is strong because lots of lawyers, and others, are having a hard time paying for the increasing costs. The Tinkerbells are no longer just information tools, they are being redesigned as workflow tools. The information component that exists both in the free providers like the LIIs, mid-tier providers like Fastcase, and Westlaw and Lexisnexis, is becoming a commodity. The cost of the workflow improvements is making the research component less available, because lawyers or others can no longer afford the cost. There is no question that the free resources do not provide the same workflow or citation tools available in the Tinkerbells. But the shift is already occurring, with lawyers moving either directly to free resources, like CanLII or state bar or state government-supported sites, or starting to migrate towards them through the mid-tier products as the free resources approach a Tinkerbell-status and the costs of Westlaw and Lexisnexis outstrip their perceived value.

This availability issue is only likely to grow. The major publishers are gearing their electronic products towards revenue generation – no surprise there! But law libraries and lawyers are looking at this information-to-workflow shift and wondering why they have to pay the workflow costs for access to the information. Free resources are already a substantial part of what lawyers use, and as Westlaw and Lexisnexis become targeted to larger law firm budgets and work processes, the free efforts will only become more viable and citable as they make available the commodity information that is duplicated in the Tinkerbells.

The hurdles to Tinkerbell status don't seem to be the same as they were, nor as high. It will be interesting to watch this change.