As the market has shown, raw information does not need to be legally protected so long as the interface for retrieving it is significantly more convenient than the free alternatives, and the information is highly reliable and “complete.”116 This added ease of use and guaranteed reliability provided as a wrapper around the facts themselves drive attorneys to pay a high price for the law even when there are less expensive means of obtaining it.
Even after unfavorable court decisions (Bender and Hyperlaw) that opened the market to free riders, Thomson, Reed Elsevier, and Wolters Kluwer have remained dominant and continued to expand. The reaction to the decision in Bender was very favorable. Librarians expected the price of obtaining legal information to fall.117 But it has not, perhaps because there is very little competition from independent publishers.118 In purchasing or providing private, free sources of law and also in reliably gathering a “complete” history of the law in a single place, Thomson, Reed Elsevier, and Wolters Kluwer have captured the legal publishing market in a way that ensures their continued success, regardless of the Bender and Hyperlaw decisions. Because of their business practices and the nature of the industry they serve, these companies are not vulnerable to competition from the free riders they seek to protect themselves from by gaining legal protection for their databases as a whole. While not having this protection may cost the big three occasionally, they have established a pattern of buying any significant competitor that threatens their grip on the industry. As such, the “market” is working as it was intended. The existence of three main legal publishers ensures that there will continue to be innovation as they compete with each other for market share. So far no lower-cost provider has been able to make available a close enough subset of services to force the big three to lower their prices. Given the current state of the legal publishing industry, it would be absurd to further limit any avenues of outside competition in what is, and has for over a century been, a tremendously profitable cartel for the dominant players.
