Undeniably, one of the biggest content growth areas for electronic resources is with the digitization of print materials. For a long time, lawyers have had full-text access to cases, statutes, regulations and countless news sources the day they are published. What wasn’t available until fairly recently was electronic access to deep historical collections of materials such as law reviews or legislative documents, let alone court filings or records. For materials of this nature that were available, they could rarely be obtained as scanned documents in collections that are easy to use.

Companies from Google to the Thomson Corporation, from Microsoft to LexisNexis are all undertaking large digitization projects focusing on better access to paper-based resources. Undeniably, many law firms have a need for some of the digitized products being produced through these efforts, and it’s hard to imagine that interest in digitized collections could wane in the near or distant future.
In acquiring access to new digital collections, law firms and other information consumers need to think about issues of cost, technology requirements and ease of use. Beyond that, merely acquiring a new collection will not ensure that all people who need the information will know it exists when the need to access it arises. In this article, we address several topics relating to digitized collections, framing the discussion by first discussing two legal-specific digitization projects available for anybody who wants to acquire them, including firms, courts and schools alike.

Two Commercial Projects that Matter to Law Firms

Lexis and Westlaw are great for searching full-text law reviews, regulations and treatises. In the area of law reviews however, few, if any, long-standing journals are available back to the first issue. For a long time, publications such as the Federal Register and Code of Federal Regulations were only available in microfiche format. Now there are other options, such as the following two services.

HeinOnline. This is a collection of scanned law reviews and primary federal materials such as the Federal Register and the Statutes at Large. Hein Online also has an expanding collection of materials in the area of treaties, as well as 19th and early 20th Century treatises. For law reviews on this service, each title is available back to the first issue, though current issues are often delayed by a year or more.

All materials can be downloaded in Adobe’s PDF format, providing page-perfect scanned documents. With law reviews, this means that footnotes appear in the footer and images and tables appear exactly as they did when published. With a source such as the Federal Register, downloaded documents are superior to both the version on Lexis as well as the actual printed reports. Scanned documents can be printed on normal laser paper instead of the fragile paper used by the Government Printing Office. Hein Online is priced as an annual subscription, and law firms can elect to get subsets of their materials, such as only the Federal Register.

LLMC-Digital The Law Library Microform Consortium (LLMC) was chartered in 1976 as a non-profit library cooperative at the University of Hawaii. Its goal is to preserve legal titles and government documents on microform. When it was founded, LLMC focused on providing reproductions of legal treatises and government documents in microfiche format. Today, they are working to create digital versions of all titles in their collection by scanning the original documents. This is an important distinction over other digital collections, as LLMC is not simply digitizing the plastic microfiche sheets.

Currently, four large libraries are scanning their historical collections to create new digital files of all materials in the LLMC collection. To date, LLMC has filmed over 7,700 titles, some 103,000 volumes. The Library System of the University of Michigan hosts the scanned images for LLMC-Digital, and they also provide the service to perform Optical Character Recognition (OCR) of the titles, which enables full-text search of their documents.

Lexis and Westlaw aren’t “Standing Still”

While preparing this article, Westlaw released a digitized version of the Federal Register going back to its inception. Previously, electronic access only went back to 1981. On the academic side, LexisNexis has products such as Congressional Universe where they have (or will soon finish) digitized versions of the Serial Set, Congressional Research Service reports, and countless other materials. Clearly both vendors are digitizing titles relevant to the law market. The following discussion should be relevant irrespective which vendor provides a particular digital collection.

Technology and Policy Issues With Digitized Collections

Irrespective of which digital collection a law firm uses, many questions arise in deciding to acquire them.

1. How will people access a new service?

In order to ensure that only current customers access their services, most vendors provide two access methods: passwords and IP address authentication based on a customer’s internet address(es).

With passwords, the advantage is that users can access materials from any location without requiring separate access credentials. The downside is that passwords have to be created, shared and they may change. Most users prefer IP authentication, which is more efficient by allowing users to go to the resources directly. For off-site use, this assumes the existence of a proxy server or extranet so that attorneys log-in to one system to get access to other services.

2. Is a link to the digital collection’s website sufficient?

In order to use a digital collection, users need to know where to access the service. Is it sufficient though to place a new link on a firm’s intranet or circulate the link in an email? A service such as Hein Online is fairly self-explanatory for basic tasks. If an attorney wants a known law review article from this collection, she can simply pick the title from a list and fill in a form with volume number and page number. However, with a service such as LLMC-Digital, a link to their homepage will provide very little help to users needing quick access to titles in the collection. Many materials on LLMC-Digital cover books and treatises where there’s not a straightforward citation format. Also, although LLMC-Digital contains the entire first series of the Federal Reporter, there is no way to get a case by its uniform citation.

3. How can people find out about a new service?

It is difficult to find out what is available. Almost every library, government body, corporation and private company is digitizing something, but how can you find out about it? UCLA has a site that lists its Law Library Digital Collections. The Government Printing Office has an online Catalog of U.S. Government Publications, many in digital format. Many state governments have digitized legal material available. Commercial vendors have brochures and exhibits at bar association conventions.

4. How should a law firm assess overall costs?

Most medium and large law firms, depending on the practice area, would find it financially feasible to have contracts with HeinOnline and LLMC. The contract negotiated will typically depend on the size of the firm. With other collections, some material may be better used at a local law library or through a document delivery service, which probably still copies materials from print collections. Two large digitized collections are The Making of Modern Law from The Thomson Corporation and the LexisNexis Congressional Serial Set. Both of these are extremely expensive so they may be better used through local libraries or delivery services.

5. What is protected by copyright?

Many new digital collections focus on materials that are out of copyright. This allows vendors to avoid copyright royalties or permission for using the materials. As most people know, works of the United States government are not protected under copyright. This means that anybody can choose to digitize the Federal Register, Code of Federal Regulations, the United States Code or GAO Reports.

Another type of materials no longer protected by copyright includes items published before 1923. The Thomson Corporation’s product The Making of Modern Law is a collection of legal-related books from the United States and the United Kingdom, all of which were published before 1923. On Westlaw, any subscriber can get scanned versions of cases from reporter volumes published by West Group. It is probably no coincidence that their coverage goes back to 1920 and not earlier.

6. What does the access contract cover?

For any type of materials in a digital collection, it is important to determine what the usage contract covers. Can a law firm print a document from the collection and give it to another law firm, as they might loan books or copy articles from print journals they own? Are there restrictions as to how or where attorneys can access the system? Also, for materials not covered by copyright, it is conceivable that an information vendor might try to protect by contract access and distribution rights that cannot be enforced by copyright law.

One title scanned as part of the LLMC-Digital collection is Admiralty and Maritime Law. This was published by the Federal Judicial Center which makes it a work of the United States government. Nonetheless, the record for the title in their collection carries the blanket statement: “This collection is restricted to use at licensed premises. Specific permission must be received for further distribution in print or electronically.”

7. When and how can you charge clients?

With most digital collections, a firm will pay a single fee for access to the service instead of paying for each document or search. For this reason, there is often no efficient way to determine how much any single activity costs in relation to the overall price. Is it ethical to charge clients for access to materials from a digital collection where there is no per-transaction price for using the service?

With something like HeinOnline, a lawyer or librarian can get an 1895 article from the Yale Law Journal in less than five minutes for no transaction cost. To get a copy of the same article from another library, it might cost $30 for delivering a copy of the article or more than $100 if you need a courier to obtain and return a book to copy. If the law firm charges a client $20 for getting a document from Hein Online, this is arguably a bargain, but should clients be told of this practice in advance? If the firm charges nothing for the retrieval, then the entire HeinOnline cost becomes overhead.

If a firm wants to track resource usage and charge it back to a client, a product such as OneLog might be used to meter usage in this way. How and when should a firm inform its clients that it is doing so?

8. Should a client pay more for a poorly-designed system?

It seems reasonable to bill for the time it takes to perform research. These intellectual tasks are precisely what clients pay for: expertise in efficiently satisfying client needs. If a lawyer needs to research a particular area of law, this information might be found in a book on LLMC-Digital. Somebody could search this service for relevant titles and print them out. The only problem is that LLMC-Digital is very inefficient when it comes to downloading entire works, and moreover, they have no way for users to get documents based on uniform citations. If it takes twenty minutes to find information needed for a client but it takes twenty-five minutes to print it out, are there problems with charging a client for forty-five minutes of research time? If systems are hard to navigate and if they force you to download a page at a time to get documents, it will make search time and transaction costs much greater.

9. Access v. Ownership

Digital collections are usually sold in one of two fashions. Purchasers either pay to own the materials or else they pay annually to access them. With the ownership model, you should be able to keep the data you purchase irrespective of how long your contract with the vendor is active. However, most vendors charge an annual maintenance fee for continued access to the system.

We bought The Making of Modern Law under the ownership model, in which we received a copy of the entire contents of this collection on several SuperDLT tapes. If we stop paying our annual maintenance, we are apparently welcome to still use the information. Unfortunately, it means we would no longer be able to use the system’s very useful search and retrieval interface.

Presumably most law firms will prefer a pure access model in acquiring a new collection. These tend to make costs predictable and help avoid large upfront costs, which can exceed $100,000 for the largest collections on the market today.

In closing, many of the issues raised with acquiring digital collections are the same as with any electronic service. However, there are certainly unique problems and questions raised when choosing to acquire them for a law practice to use. Hopefully the foregoing questions help frame the issues for any firm considering a new product seen at the next conference, tradeshow or in a promotional vendor flyer.

This is derived from an article that appeared in the January 2007 issue of Legal Tech. It is reprinted with the permission of Law Journal Newsletters, a division of ALM.