Roberta Shaffer, the Law Librarian of Congress, recently gave a keynote to the American Association of Law Librarians Vendor's Colloquium in Chicago, and during that presentation made a number of observations about socio-info, law practice, legal research, and legal publishing trends [Fn. 1], two of which I found particularly important to highlight. First, she said that legal publishers can find lawyers to update existing content, but are having problems getting lawyers to write new treatises. Second, she said our vocabulary has changed, specifically that we are using shorter sentences and shorter words to help us cope with information overload. [Fn. 2] I think both of these observations are interesting indications of how digital culture has affected (1) our perceptions on personal branding and marketing and (2) how we interact with information.
In the case of personal branding and marketing, lawyers are constantly encouraged to leverage digital media as a means of developing a personal or firm brand and to spend whatever free time they can muster to deliver content through web channels and streams in an effort to boost their presence and attract clients. [Fn. 3] Not surprisingly, this perspective is vastly more appealing than the old-school marketing ploy of becoming a published author. Nowadays very few people like the idea of spending a couple of years writing a tome dedicated to some aspect of the law, particularly when it won't be read by prospective clients. Thus, the odds of finding a lawyer dedicated enough to create such a title are getting worse for publishers every year. To be clear about that point, I readily acknowledge that the market for new acquisitions is still robust (e.g., the American Bar Association puts out 125 to 150 new titles a year), but those aren't the kind of books that the large publishing houses built their reputations on over the last century (read: subscription-worthy titles).
In the case of how we interact with digital information, Shaffer informs us that the volume of data we can receive on any given day now exceeds the equivalent of 174 newspapers worth of information. With that much data to process, it's no surprise that information curators are digital darlings (read: we need a filter) and we take a great deal of comfort in Twitter's 140-character limitation (read: we can only process in small chunks). The effect is pervasive and is influencing the time young lawyers are willing to spend on understanding their research. Note, I did not say conducting research. The focus here is on the ability to understand the why behind the answer. And this is where I think it gets difficult for publishers of legal analytical content.
The Big 2 are carrying a many legacy titles right now, and as best as I can tell, they haven't quite figured out what to do with many of them other than to raise prices commensurate with declining subscription rates or bundle them with other products and ship them as part of "an existing subscription," a practice that stung Lexis to the tune of $2 million and some change in Florida in 2009. These may seem like viable options if you think the problem is the economy stupid, but I think the problem is a lot larger than declining budgets. The titles, as they are currently configured and written, aren't that useful to modern practitioners anymore.
From where I sit, the lack of utility with these titles lies in the fact that (1) as Shaffer pointed out, we're overwhelmed with information, and (2) we no longer have time for contemplative study in our daily practices. As Shaffer noted, the practice of law has shifted from a focus on legal concepts and theories to facts. [Fn. 4] We want material that is on point, and we'd like it now please.
Let's consider the Google generation for a second, the touchy-feely Gen-Yers. If I say, "first page results only" or "top 5 hits," you know what I mean. This generation of researchers won't look further, so you've got to hit upon the answer the first time, otherwise they will simply get locked into an iterative search process until something appears on page 1. I see this research perspective (the quick-and-on-point culture) informing publishers on how this generation of lawyers wants analytical material to be written and displayed: quick access, short sentences supported by the law, numbered and headed paragraphs (i.e., bread crumbs), citable (i.e., I can plagiarize it and be right), heavily cross-referenced, faceted, etc.
This shift in researching perspective is not a small thing because it reflects the pressure digital culture is having on print, and we aren't even talking about eReaders. So many of the successful titles carried by the Big 2 publishers today were written at a time when lawyers could be more leisurely about their learning (i.e., clients would pay for the research time). This isn't the case any longer. A book written for a different generation, even if up to date, is no better online than it is in print because the mode of communication is much the same. The stylistic framework for the title is mimicked and carried forward from edition to edition, so simply allowing it to be searched digitally won't make you smarter about a subject faster (or if so, only incrementally). This limitation doesn't make the product bad, it just means that it would be more useful (and possibly more successful) if it was modernized.
This is where remixing comes in.
Much has been written about the remixing of content, from texts to video, and the legal implications of mash-ups. Perhaps the most widely known among lawyers is Lawrence Lessig's Remix: Making Art & Commerce Thrive in the Hybrid Economy, which is really more about individuals and the economics of creating new content with copyrighted works without the owner's consent. My use of the term, however, is much more benign and not at all offensive to the nondigital culture.
So what do I mean by remixing then? When I look at the catalogs of the Big 2, there are a tremendous number of titles I wish I had complete access to, and by that I mean the entire digital text and the rights to mash it up with other titles and rewrite it to create something different and more accessible to the new generation of lawyers. It's remarkable how much great information is buried in arcane language, poor document structure, and, yes, footnotes. (FYI: footnotes don't make it easy for lawyers to crib content for their briefs.) I'm fairly confident that we could create some great titles that would breathe new life into some tired, but still accurate, information, and in the process, make lawyers feel smarter quicker. Perhaps we could even tap into all of those lawyers who are willing to update rather than create new content.
And this leads us to the first problem with remixing: author contracts. For acquisition contracts, I would encourage all publishers to start looking at them and negotiate remixing rights, which I would loosely define as the right to alter, transform, or build upon a work (similar to what you might grant under a Creative Commons license). The contract would also have to address the author's moral rights, making sure to deal directly with "derogatory" works to prevent any future quarrels over the outcome. If your list includes numerous related and complementary titles, you should be working on a script that convinces authors of the benefits of granting these rights. For nonsub authors on a backlist, this shouldn't be too hard to do, although compensation is always a sticking point (is it a royalty, a flat-fee, will it be based on some formula of percentage of title used, etc.). For authors-as-a-brand who have one or more successful titles, the conversation will be decidedly more difficult. But that isn't a reason not to do it, particularly given the pace at which the publishing economy is moving right now. [Fn. 5]
The second problem then is editorial talent. The success of any remixing effort will depend entirely upon the editors responsible for creating the Frankenstein. Publishers will have to identify the characteristics that make up a top-notch remixing editor, which at the very least suggests an excellent writer, a thorough understanding of traditional and modern research approaches, strong comparative law skills, the ability to see how a better product might emerge from similar or disparate resources, and a good understanding of the marketplace (digital versus print, sales channels, etc.).
Late last year I was mulling over the problem of decaying commentaries. The process for commentary decay looks something like this: (1) a book’s sales begin to decline; (2) the publisher cuts the author’s royalty or fee for updating the book; (3) the author loses interest or quits; (4) the publisher brings the book in-house to be updated; (5) the in-house editors are unhappy with having to work on a dog and are already stressed by the number of books they have to keep up with; and (6) as a result of (1)-(5), the product ends up being even less valuable, and in some cases, wrong on the law. I wondered what was to become of all of this content, which at one point was quite valuable to a certain generation of lawyer. After looking at some of those products, I realized they are still quite valuable, they just can't be accessed by the new generation of lawyer. So what we need to do now is spend some time trying to figure out how we can rescue them before the IP is irretrievable.
Fn. 1. I did not attend the colloquium, and so these "observations" are second hand from the various posts written about the keynote.
Fn. 2. According to David Brooks in his new book, The Social Animal, humans have a vocabulary of about 65,000 words, most of which we possess simply because we like to have sex. That's a paraphrase, of course.
Fn. 3. For example, fellow Slaw contributor Jordan Furlong recently wrote in Reluctant publishers: helping lawyers generate content:
"Make no mistake: your law firm needs lawyer-generated content if it hopes to compete for attention and respect on the Web. So if your lawyers don’t think content matters, if they don’t have the right incentives to produce it, or if they think it’s something they can delegate to a staff person and forget about, you need to correct those misperceptions, and fast."
I'm not taking up the debate on the use of the web as a brand-building platform, but I would be remiss if I didn't mention a recent article studying and expounding upon the citation of blog posts in U.S. judicial opinions that confirms what many older practitioners already know about the relationship between brand reputation and blogging: street cred comes from practical expertise and traditional publishing channels, which then lends credence to the blog, not the other way around. See Peoples, The Citation of Blogs in Judicial Opinions, 13 Tul. J. Tech. & Intell. Prop. 39 (2010).
Fn. 4. For example, this focus has recently prompted Mary Abraham over at Above & Beyond KM to suggest guided search to Westlaw and Lexis because it would reward a lawyer who understood the facts and context of the case at hand and not her ability to construct a perfect search query.
Fn. 5. If authors don’t have competing works provisions, it might be possible for other publishing companies to approach those authors for remix rights to titles currently being published by another publisher, much in the same way that digital rights are being negotiated on the trade side. Don’t quote me on that as I haven’t spent a great deal of time looking into the IP issues or comparing industry publishing contracts. But it certainly suggests that there might be some opportunities for new publishing ventures.