My perception, supported by a good deal of evidence, is that some people and businesses favour, and indeed boast of those assets and competences which they already have and from which they are trying to profit; they sometimes play down the worth of products, services and content which they do not have and through which they cannot trade for potential profit. Therefore, to take an example, they might trumpet the significance of blogging in legal markets, while referencing, to little or no extent, the infinitely more dynamic sources of added value legal authority, viz. the authoritative and learned tomes, with multiple editions honed over decades and centuries, written and edited by the greatest legal minds in their respective fields. Equally, of course, there are others whose hostility to such innovation stems from their fear and ignorance of it; others still just want to be on message and are fearful of betting on the wrong side. These are not questions of electronic versus print, as might have been a long time ago, because, one way or another, everything has to start with committing human knowledge to a visual or audible medium. Expressed otherwise, initially, everything of deep consequence tends to start with actual or metaphorical pen and paper. It is that content medium which predominantly defines law publishing and which delivers the essential component of legal analysis and added-value secondary written material, viz. law books (in print and electronically). Everything else is diminutive by comparison. When an academic lawyer or practitioner wants critical and learned analysis, they hit the books, not the blogs nor the newsletters. Law publishing and legal tomes are synonymous. While I would not want to detract from any other collections of related structured data, I would assert that what matters, to this day, with the countless respected leading works in their many editions, their level of analysis, undertaken by, with some exceptions, the renowned experts, are these foundations of legal research. Printed or electronically, they are what are central to judicial proceedings; they offer practitioners the ability to practice law, to teachers of law and jurisprudence, the ability to teach, and to at least some of their students, many of the bases for conducting rational adult life.
Those greatest minds are most likely not the everyday legal practitioners and academics who maybe are trying to make names for themselves and/or market their firms, for the latter are unlikely to be able to deliver appropriate quality standards. Chances are, the renowned experts are not doing what they do for the money or for marketing purposes, as to think along such lines would be absurd. Rather, it is because their reputations have already been made and they are courted vigourously by specialist publishers and editors and lovingly hounded until they are finally persuaded to deliver their legal analysis in books and journals. Likewise, not all law books and periodicals, again using whatever delivery media are appropriate, are the same. The majority are pedestrian and of little value in terms of major transactions and litigation, supporting only everyday legal matters and related documentation, but are less likely to assist greatly in winning cases and concluding important deals; they might even be at times unacceptable authorities in court.
For a successful law publishing business, having a backlist of many titles and producing many others per year, is probably not much of a measure of its achievement. They have to be the right ones, not even just expertly written but expertly selected for publication, while the rest are rejected. Therefore, to boast access to high numbers of legal works is likely to be misleading, if they are not those which have been specifically curated to serve particular purposes.
With these factors in mind, I am intrigued by the flurry of deals which have been done in recent times, allowing information technology newcomers and outsiders eagerly to gain access to the body of law books, while allowing the (usually) lesser law publishers to claim that they have presence in technology, notably artificial intelligence. A recent one has been between an academic publisher which has a limited legal portfolio, Oxford University Press, as the content supplier, to Clio, now with vLex and Fastcase, as the business seeking depth and quality of legal content. Over the years, what is now the vLex part of Clio, has done many content deals to feed the search software and increase market credibility, so that now, with the OUP content added, the number of available book titles is substantial. However, the question is whether or not they are market leaders or the best ones, not least due to the absence of those from Thomson Reuters and Lexis Nexis, and, in fact, the purpose is to give visibility to obscure, unsuccessful, low value works? Might it be suggested that this is not curation, but aggregation based on small, opportunistic deals by which both parties convince themselves and the other that the benefits are measurable for them, their authors and their customers? I am not yet convinced. Furthermore, all this is in the midst of litigation between Clio, in the guise of Fastcase, being involved in litigation with Alexi Technologies over alleged anticompetitive conduct, somewhat reminiscent of ROSS’s failed spat with Thomson Reuters. I suspect that the proliferation of litigation to confirm, correct and eliminate alleged actions and behaviours of some of those involved in establishing positions in these times will be a key factor in creating a longer-term landscape, and will determine which of them will litigate themselves into oblivion. I find it almost impossible to disagree with House of Butter’s Sean Hocking’s dismissiveness in his recent editorial on these matters.
I understand the problem that the parties in some of the licensing agreements are endeavouring to resolve. Countless commentators continue to make the point that legal technology without good compatible legal content is deeply flawed and unlikely to succeed, even aside from other possible risks. At the same time, the task of turning a law publishing business into a mainstream technology supplier is hugely complicated, expensive and probably undesirable, certainly in terms of short and medium-term likely profitability. Both parties will also need to keep in mind the frailty of their contracts as licenses given can be taken away and they are not exclusive. Nor are they always likely to survive takeovers and mergers and indeed the changing fortunes of each party, not least when it emerges that respective benefits become unequal, or not as originally promised.
I am inclined to view many of such deals not as indicators of strength and confidence but rather, somewhat desperately, suggesting weakness and fear. This contrasts with the likes of Thomson Reuters and Lexis Nexis, for which a combination of historic organic growth, diversification and acquisition has sustained them in their transitions from what and where they used to be. Their market leadership roles have not been diminished and they have the competence and muscle to create coherent, seamless services which are less likely to have uncontrolled weak spots, due to flaky licensing deals in which they might have become the loser party. It may well be a dream worth retaining to see a combination which might genuinely challenge the status quo in terms of all the important measures. Such an entity, would, no doubt, be good for competition and maybe even be in the interests of customers and in the rule of law itself; however, it is not yet the time. Meanwhile, up and down the food chain, the numerous technology provider mergers and acquisitions, such as the recent ones, of Harvey acquiring Hexus and, perhaps, those of RELX’s investment in Orbital, an AI Platform for real estate law and Thomson Reuters’ purchase of Noetica, serve as a reminder that, in the consolidation process, many names will appear and many more will disappear as market realities emerge and consequences follow.
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