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In 1494, Luca Pacioli published “Particularis de Computis et Scripturis,” which is widely regarded as the first written treatise on bookkeeping. In the 600+ years since that event, we have become completely accustomed to the concepts of ledgers, journals and double-entry bookkeeping. Like all profound ideas, the concept of a transaction ledger nowadays seems to be completely natural, as if always existed as some sort of natural law.

Whenever there is a need for detailed, defensible records of how a financial state of affairs (such as a company balance sheet or a profit and loss statement) came to be, we employ Pacioli’s concepts without even thinking about them any more. Of course you need ledgers of transactions as the raw material from which to derive the financial state of affairs at whatever chosen point in time is of interest. How else could you possibly do it?

Back in Pacioli’s day, there was nothing convenient about ledgers. After all, back then, all ledger entries had to be painstakingly made by hand into paper volumes. Care was needed to pair up the debits and credits. Ledger page totals and sub-totals had to checked and re-checked. Very labor intensive stuff. But then computers came along and lo! all the benefits of ledgers in terms of the rigorous audit trail could be enjoyed without all the hard labor.

Doubtless, somewhere along the line in the early days of the computerization of financial ledgers, it occurred to somebody that ledger entries need not be immutable. That is to say, there is no technical reason to carry forward the “limitation” that pen and ink imposes on ledger writers, that an entry – once made – cannot be changed without leaving marks on the page that evidence the change. Indeed, bookkeeping has long had the concept of a “contra-entry” to handle the immutability of pen and ink. For example, if a debit of a dollar is made to a ledger by mistake, then another ledger entry is made – this time a credit – for a dollar to counter-balance the mistake while preserving the completeness of the audit-trail.

Far from being a limitation of the paper-centric world, the concept of an “append-only” ledger turns out, in my opinion, to be the key to the trustworthiness and transparency of financial statements. Accountants and auditors can take different approaches to how information from the ledgers is grouped/treated, but the ledgers are the ledgers are the ledgers. Any doubt that the various summations accurately reflect the ledgers can readily be checked.

Now let us turn to the world of law. Well, law is so much more complicated! Laws are not simple little numerical values that fit nicely into transaction rows either in paper ledgers or in database tables. True, but does it follow that the many benefits of the ledger-centric approach cannot be enjoyed in our modern day digital world where we do not have the paper-centric ledger limitations of fixed size lines to fit our information into? Is the world of legal corpus management really so different from the world of financial accounting?

What happens if we look at, say, legal corpus management in a prototypical U.S. legislature, from the perspective of an accountant? What would an accountant see? Well, there is this asset called the statute. That is the “opening balance” inventory of the business in accounting parlance. There is a time concept called a Biennium which is an “accounting period”. All changes to the statute that happen in the accounting period are recorded in the form of bills. bills are basically accounting transactions. The bills are accumulated into a form of ledger typically known as Session Laws. At the end of the accounting period – the Biennium – changes to the statute are rolled forward from the Session Laws into the statute. In accounting parlance, this is the period-end accounting culminating in a new set of opening balances (statute), for the start of the next Biennium. At the start of the Biennium, all the ledger transactions are archived off and a fresh set of ledgers is created; that is, bill numbers/session law numbers are reset, the active Biennium name changes etc.

I could go on and on extending the analogy (chamber journals are analogous to board of directors meeting minutes; bill status reporting is analogous to management accounting, etc.) but you get the idea. Legal corpus management in a legislature can be conceptualized in accounting terms. Is it useful to do so? I would argue that it is incredibly useful to do so. Thanks to computerization, we do not have to limit the application of Luca Pacioli’s brilliant insight to things that fit neatly into little rows of boxes in paper ledgers. We can treat bills as transactions and record them architecturally as 21st century digital ledger transactions. We can manage statute as a “balance” to be carried forward to the next Biennium. We can treat engrossments of bills and statute alike as forms of trail balance generation and so on.

Now I am not for a moment suggesting that a digital legislative architecture be based on any existing accounting system. What I am saying is that the concepts that make up an accounting system can – and I would argue should – be used. A range of compelling benefits accrue from this. A tremendous amount of the back-office work that goes on in many legislatures can be traced back to work-in-progress (WIP) reporting and period-end accounting of what is happening with the legal corpus. Everything from tracking bill status to the engrossment of committee reports becomes significantly easier once all the transactions are recorded in legislative ledgers. The ledgers then becomes the master repository from which all reports are generated. The reduction in overall IT moving parts, reduction in human effort, reduction in latency and the increase in information consistency that can be achieved by doing this is striking.

For many hundreds of years we have had ledger-based accounting. For hundreds of years the courts have taken the view that, for example, a company cannot simply announce a Gross Revenue figure to tax officials or to investors, without having the transaction ledgers to back it up. Isn’t in interesting that we do not do the same for the legal corpus? We have all sorts of publishers in the legal world, from public bodies to private sector, who produce legislative outputs that we have to trust because we do not have any convenient form of access to the transaction ledgers. Somewhere along the line, we seem to have convinced ourselves that the level of rigorous audit trail routinely applied in financial accounting cannot be applied to law. This is simply not true.

We can and should fix that. The prize is great, the need is great and the time is now. The reason the time is now is that all around us, I see institutions that are ceasing to produce paper copies of critical legal materials in the interests of saving costs and streamlining workflows. I am all in favour of both of these goals, but I am concerned that many of the legal institutions going fully paperless today are doing so without implementing a ledger-based approach to legal corpus management. Without that, the paper versions of everything from registers to regulations to session laws to chamber journals to statute books – for all their flaws – are the nearest thing to an immutable set of ledgers that exist. Take away what little audit trail we have and replace it will a rolling corpus of born digital documents without a comprehensive audit trail of who changed what and when?…Not good.

Once an enterprise-level ledger-based approach is utilised, another great prize can be readily won; namely, the creation of a fully digital yet fully authenticated and authoritative corpus of law. To see why, let us step back into the shoes of the accountant for a moment. When computers came along and the financial paper ledgers were replaced with digital ledgers, the world of accounting did not find itself in a crisis concerning authenticity in the way the legal world has. Why so?

I would argue that the reason for this is that ledgers – Luca Pacioli’s great gift to the world – are the true source of authenticity for any artifact derived from the ledgers. Digital authenticity of balance sheets or Statute sections does not come from digital signatures or thumb-print readers or any of the modern high tech gadgetry of the IT security landscape. Authenticity come from knowing that what you are looking at was mechanically and deterministically derived from a set of ledgers and that those ledgers are available for inspection. What do financial auditors do for living? They check authenticity of financial statements. How do they do it? They do it by inspecting the ledgers. Why is authenticity of legal materials such a tough nut to crack? Because there are typically no ledgers!

From time to time we hear an outburst of emotion about the state of the legal corpus. From time to time we hear how some off-the-shelf widget will fix the problem. Technology absolutely holds the solutions, but it can only work, in my opinion, when the problem of legal corpus management is conceptualized as ledger-centric problem where we put manic focus on the audit trail. Then, and only then, can we put the legal corpus on a rigorous digital footing and move forward to a fully paperless world with confidence.

From time to time, we hear an outburst of enthusiasm to create standards for legal materials and solve our problems that way. I am all in favour of standards but we need to be smart about what we standardize. Finding common ground in the industry for representing legislative ledgers would be an excellent place to start, in my opinion.

Is this something that some standards body such as OASIS or NIEM might take on? I would hope so and hopeful that it will happen at some point. Part of why I am hopeful is that I see an increasing recognition of the value of ledger-based approaches in the broader world of GRC (Governance, Risk and Compliance). For too long now, the world of law has existed on the periphery of the information sciences. It can, and should be, an exemplar of how a critical piece of societal infrastructure has fully embraced what it means to be “born digital”. We have known conceptually how to do it since 1494. The technology all exists today to make it happen. A number of examples already exist in production use in legislatures in Europe and in the USA. What is needed now, is for the idea to spread like wildfire the same way that Pacioli’s ideas spread like wildfire into the world of finance all those years ago.

Perhaps some day, when the ledger-centric approach to legal corpus management had removed doubts about authenticity/reliability, we will look back and think digital law was always done with ledgers, just as today we think that accounting was always done that way.

Sean McGrath is co-founder and CTO of Propylon, based in Lawrence, Kansas. He has 30 years of experience in the IT industry, most of it in the legal and regulatory publishing space. He holds a first class honors degree in Computer Science from Trinity College Dublin and served as an invited expert to the W3C special interest group that created the XML standard in 1996. He is the author of three books on markup languages published by Prentice Hall in the Dr Charles F. Goldfarb Series on Open Information Management. He is a regular speaker at industry conferences and runs a technology-oriented blog at http://seanmcgrath.blogspot.com.

 

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

In the fall of 2009, the American Association of Law Libraries (AALL) put out a call for volunteers to participate in our new state working groups to support one of AALL’s top policy priorities: promoting the need for authentication and preservation of digital legal resources. It is AALL policy that the public have no-fee, permanent public access to authentic online legal information. In addition, AALL believes that government information, including the text of all primary legal materials, must be in the public domain and available without restriction.

The response to our call was overwhelming, with volunteers from all 50 states and the District of Columbia expressing interest in participating. To promote our public policy priorities, the initial goals of AALL’s working groups were to:

  • Take action to oppose any plan in their state to eliminate an official print legal resource in favor of online-only, unless the electronic version is digitally authenticated and will be preserved for permanent public access;
  • Oppose plans to charge fees to access legal information electronically; and
  • Ensure that any legal resources in a state’s raw-data portal include a disclaimer so that users know that the information is not an official or authentic resource (similar to what is included on the Code of Federal Regulations XML on Data.gov).

In late 2009, AALL’s then-Director of Government Relations Mary Alice Baish met twice with Law Librarian of Congress Roberta Shaffer and Carl Malamud of Public.Resource.org to discuss Law.gov and Malamud’s idea for a national inventory of legal materials. The inventory would include legal materials from all three branches of government. Mary Alice volunteered our working groups to lead the ambitious effort to contribute to the groundbreaking national inventory. AALL would use this data to update AALL’s 2003 “State-by-State Report on Permanent Public Access to Electronic Government Information and the 2007 “State-by-State Report on Authentication of Online Legal Resourcesand 2009-2010 updates, which revealed that a significant number of state online legal resources are considered to be “official” but that few are authenticating. It would also help the Law Library of Congress, which owns the Law.gov domain name, with their own ambitious projects.

Erika Wayne and Paul Lomio at Stanford University’s Robert Crown Law Library developed a prototype for the national inventory that included nearly 30 questions related to scope, copyright, cost to access, and other use restrictions. They worked with the California State Working Group and the Northern California Association of Law Libraries to populate the inventory with impressive speed, adding most titles in about two months.

AALL’s Government Relations Office staff then expanded the California prototype to include questions related to digital authentication, preservation, and permanent public access. Our volunteers used the following definition of “authentication” provided by the Government Printing Office:

An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator.

Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.

An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be.

The “Principles and Core Values Concerning Public Information on Government Websites,” drafted by AALL’s Access to Electronic Legal Information Committee (now the Digital Access to Legal Information Committee) and adopted by the Executive Board in 2007, define AALL’s commitment to equitable, no-fee, permanent public access to authentic online legal information. The principle related to preservation states that:

Information on government Web sites must be preserved by the entity, such as a state library, an archives division, or other agency, within the issuing government that is charged with preservation of government information.

  • Government entities must ensure continued access to all their legal information.
  • Archives of government information must be comprehensive, including all supplements.
  • Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.
  • Governments must plan effective methods and procedures to migrate information to newer technologies.

In addition, AALL’s 2003 “State-By-State Report on Permanent Public Access to Electronic Government Information” defines permanent public access as, “the process by which applicable government information is preserved for current, continuous and future public access.”

Our volunteers used Google Docs to add to the inventory print and electronic legal titles at the state, county, and municipal levels and answer a series of questions about each title. AALL’s Government Relations Office set up a Google Group for volunteers to discuss issues and questions. Several of our state coordinators developed materials to help other working groups, such as Six Easy Steps to Populating Your State’s Inventory by Maine State Working Group coordinator Christine Hepler, How to Put on a Successful Work Day for Your Working Group by Florida State Working Group co-coordinators Jenny Wondracek and Jamie Keller, and Tips for AALL State Working Groups with contributions from many coordinators.

In October 2010, AALL held a very successful webinar on how to populate the inventories. More than 200 AALL and chapter members participated in the webinar, which included Kentucky State Working Group coordinator Emily Janoski-Haehlen, Maryland State Working Group coordinator Joan Bellistri, and Indiana State Working Group coordinator Sarah Glassmeyer as speakers. By early 2011, more than 350 volunteers were contributing to the state inventories.

Initial Findings

Our dedicated volunteers added more than 7,000 titles to the inventory in time for AALL’s June 30, 2011 deadline. AALL recognized our hard-working volunteers at our annual Advocacy Training during AALL’s Annual Meeting in Philadelphia, and celebrated their significant accomplishments. Timothy L. Coggins, 2010-11 Chair of the Digital Access to Legal Information Committee, presented these preliminary findings:

  • Authentication: No state reported new resources that have been authenticated since the 2009-2010 Digital Access to Legal Information Committee survey
  • Official status: Several states have designated at least one legal resource as official, including Arizona, Florida, and Maine
  • Copyright assertions in digital version: Twenty-five states assert copyright on at least one legal resource, including Oklahoma, Pennsylvania, and Rhode Island
  • Costs to access official version: Ten states charge fees to access the official version, including Kansas, Vermont, and Wyoming
  • Preservation and Permanent Public Access: Eighteen states require preservation and permanent public access of at least one legal resource, including Tennessee, Virginia, and Washington

Analyzing and Using the Data

In July 2011, AALL’s Digital Access to Legal Information Committee formed a subcommittee that is charged with reviewing the national inventory data collected by the state working groups. The subcommittee includes Elaine Apostola (Maine State Law and Legislative Reference Library), A. Hays Butler (Rutgers University Law School Library), Sarah Gotschall (University of Arizona Rogers College of Law Library), and Anita Postyn (Richmond Supreme Court Library). Subcommittee members have been reviewing the raw data as entered by the working group volunteers in their state inventories. They will soon focus their attention on developing a report that will also act as an updated version of AALL’s State-by-State Report on Authentication of Online Legal Resources.

The report, to be issued later this year, will once again support what law librarians have known for years: there are widespread issues with access to legal resources and there is an imminent need to prevent a trend of eliminating print resources in favor of electronic resources without the proper safeguards in place. It will also include information on: the official status of legal resources; whether states are providing for authentication, permanent public access, and/or preservation of online legal resources; any use restrictions or copyright claims by the state; and whether a universal (public domain) citation format has been adopted by any courts in the state.

In addition to providing valuable information to the Law Library of Congress and related Law.gov projects, this information has already been helpful to various groups as they proceed to advocate for no-fee, permanent public access to government information. The data has already been useful to advocates of the Uniform Electronic Legal Material Act and will continue to be valuable to those seeking introduction and enactment in their states. The inventory has been used as a starting point for organizations that are beginning digitization projects of their state legal materials. The universal citation data will be used to track the progress of courts recognizing the value of citing official online legal materials through adopting a public domain citation system. Many state working group coordinators have also shared data with their judiciaries and legislatures to help expose the need for taking steps to protect our state legal materials.

The Next Steps: Federal Inventory

In December 2010, we launched the second phase of this project, the Federal Inventory. The Federal Inventory will include:

  • Legal research materials
  • Information authored or created by agencies
  • Resources that are publicly accessible

Our goals are the same as with the state inventories: to identify and answer questions about print and electronic legal materials from all three branches of government. Volunteers from Federal agencies and the courts are already adding information such as decisions, reports and digests (Executive); court opinions, court rules, and Supreme Court briefs (Judicial); and bills and resolutions, the Constitution, and Statutes at Large (Legislative). Emily Carr, Senior Legal Research Specialist at the Law Library of Congress, and Judy Gaskell, retired Librarian of the Supreme Court, are coordinating this project.

Thanks to the contributions of an army of AALL and chapter volunteers, the national inventory of legal materials is nearly complete. Keep an eye on AALL’s website for more information as our volunteers complete the Federal Inventory, analyze the data, and promote the findings to Federal, state and local officials.

Tina S. Ching is the Electronic Services Librarian at Seattle University School of Law. She is the 2011-12 Chair of the AALL Digital Access to Legal Information Committee.

 

Emily Feltren is Director of Government Relations for the American Association of Law Libraries.

 
 

[Editor's Note: For topic-related VoxPopuLII posts please see: Barbara Bintliff, The Uniform Electronic Legal Material Act Is Ready for Legislative Action; Jason Eiseman, Time to Turn the Page on Print Legal Information; John Joergensen, Authentication of Digital Repositories.]

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

The Uniform Electronic Legal Material Act, referred to as UELMA, is ready for introduction into state legislatures.  It has undergone its final proofing and formatting process by the National Conference of Commissioners of Uniform State Laws (NCCUSL, or ULC) and has been posted on NCCUSL’s archival Website at the University of Pennsylvania, and is soon to come to NCCUSL’s official site.  The Act will be sent to the American Bar Association’s (ABA’s) House of Delegates for approval at the ABA Midyear Meeting in February, 2012 in New Orleans.

The UELMA addresses important issues in information management, providing sound guidance to states that are transitioning legal publications to digital formats.   The Act is citizen-oriented, and leaves all issues concerning commercial publishing to state policy and contract law.   Most importantly, the Act is outcomes-based, keeping it flexible in the face of changing technologies and evolving state practice.  A brief account of UELMA’s development and its main provisions is included in this posting.

The UELMA was drafted in response to a request from the American Association of Law Libraries (AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. The purpose of the Summit was to bring national attention to the issues surrounding the rapid rise in the number of states publishing primary legal information resources electronically and, in some cases, cancelling print resources and publishing legal information only in electronic format.  Foremost among the issues were ensuring the trustworthiness of online legal resources  and preserving the electronic publications to provide for continuing accessibility.   The drafting of a uniform act on these topics was one of the top recommendations of the Summit’s attendees.

The ULC agreed to consider the development of a uniform law and appointed a Study Committee for that purpose.  The Study Committee recommended that a law be developed and a Drafting Committee was charged with the task.  After two years of consideration, including several face-to-face meetings, conference calls, and circulation of numerous drafts by email, the UELMA was read to and debated for the second time at the Annual Meeting of NCCUSL in July 2011.  After more than six hours of floor consideration, the NCCUSL Committee of the Whole passed the draft act, sending it to a Vote of the States.  UELMA passed its final hurdle with a positive Vote of the States, gaining approval by a vote of 45-0 (with 1 abstention and 7 jurisdictions not voting).

The UELMA, as it passed the Conference, requires a state that publishes official versions of its legal information in electronic format to do three things:

1.  Authenticate the information, by providing a method to determine that the legal material is unaltered from the version published by the state officer or employee that publishes the material;
2.  Preserve the information; and
3.  Ensure public accessibility on a permanent basis.

At a minimum, legal material that is covered by the Act includes the most basic of state-level legal information resources, including the state constitution, session laws, codified laws or statutes, and state agency rules with the effect of law.  In recognition of potential separation of powers issues, the UELMA does not automatically include judicial or executive materials, leaving it to the enacting state to decide whether and how to include those resources.  States may choose to include court rules and decisions, state administrative agency decisions, executive official documents, or almost any other information resources they designate as legal material.

For each type of legal material, the state must name a state agency or official as the “official publisher.”  The official publisher has the responsibility to authenticate, preserve, and provide access to the legal material. If legal material defined by the Act is published only electronically, that material must be designated “official” and meet the requirements of the Act.  If there is a print version of the legal material, an official publisher may designate the online version “official,” but the requirements of the Act to authenticate, preserve, and provide access must be met for the electronic version.

The requirements of the Act are not ended if the official electronic legal material is superseded, overruled, or otherwise ceases to be current law.   Legal material does not lose its value even if it is no longer in effect.  Accordingly, once a source is designated as official, it continues to be covered by the provisions of the UELMA.  Historical sources must be preserved and made available.

The Act does not affect any relationships between an official state publisher and a commercial publisher, leaving those relationships to contract law.  Copyright laws are unaffected by the Act. The Act does not affect the rules of evidence; judges continue to make decisions about the admissibility of electronic evidence in their courtrooms.

The comments to the UELMA provide a great deal of background on the decisions and intent of the Drafting Committee.  In many instances, the comments offer guidance to legislators who will be asked to consider the UELMA for passage.  The comments are included with the Act on the University of Pennsylvania’s Biddle Law Library Website.

Some issues specific to one of the three parts of the Act (authentication, preservation, and public access) are as follows.  More information on these points can be found in the comments to the Act.

Authentication (Sections 5 and 6) :

The Drafting Committee considered a wide range of approaches to authentication before settling on a policy of presenting a technology-neutral, outcomes-based document, leaving the choice of method used to authenticate legal material up to the states.  This approach also leaves it to each state’s discretion to change methods, as necessary or desirable.  What is required is that the official publisher provides a method for the user to determine that the electronic record is unaltered from the one published by the official publisher.

By the terms of the Act, the authenticated electronic legal material will receive a presumption of accuracy, the same presumption that is created by publication of legal material in print form.  The burden of proving inaccuracy shifts to the party that disputes the accuracy of the electronic legal material.   Electronic legal material from other states with substantially similar laws will receive the same presumption of accuracy.

Preservation (Section 7):

The Drafting Committee spent considerable time debating the preservation provisions.   The biggest issues were finding a way to describe what legal material would be covered by a preservation requirement, and how legal material should be preserved.

The Drafting Committee decided that, ultimately, all legal material covered by the Act’s authentication provisions should also be subject to its preservation requirements.  This was stated simply as requiring preservation of legal material “that is or was designated as official” under the Act.  This language requires that states preserve superseded or amended legal material, which retains importance despite its no longer being currently effective.  The comments to Section 7 make clear that the Drafting Committee intended the Act to cover not only the text of the law, but also the materials commonly published with the legal material.  This would mean that the lists of legislators and state officials typically published with session laws would be preserved, as would proposed or final state constitutional amendments, legislative resolutions, and any other type of information published with a legal material source.

The Drafting Committee decided to use an outcomes-based approach for the preservation requirements, similar to its approach to authentication.   The ultimate outcome of preservation is that legal material may be preserved in an electronic format, in print, or by whatever method the state may choose in the future; consistent with an outcomes-based approach, state policy and preference dictate the preservation method.

If legal material is preserved electronically, the UELMA requires that the integrity of the record be ensured, including through backup and disaster recovery preparations, and that the continuing usability of the legal material is ensured.  Recent natural disasters in the U.S. have highlighted the importance of disaster recovery preparations.  Further, information that is preserved in an unusable format is of no value.  The comments make clear that migration to new formats or storage media will be required from time to time.

The comments also note that the Drafting Committee intended that legally significant formatting be preserved.  The complexity of presentation of some legal materials — evident in indentations, italicization, and numbering of internal subdivisions, for example — may indicate or explain legislative or regulatory intent.  Preservation should not change the meaning of the legal material, but rather should ensure that the legal material is capable of being authenticated.

The Act recognizes that states have decades, and in some instances centuries, of expertise in preserving print materials, and does not specify preservation requirements or outcomes if the state chooses to preserve legal material in print.  Nor does the Act impose a duty on an enacting state to retrospectively convert its print material to an electronic format.  If, however, the state chooses to digitize previously non-electronic legal material, and if that newly electronic legal material is designated as official, then the requirements of the Act must be met.  Publication of legal material in an official electronic version subsequent to the adoption of the UELMA, even if the same legal material was published previously in print, triggers the requirements of the Act.

Permanent Access (Section 8):

Citizens must be informed as to government actions if they are to participate effectively in their government.  Legal material is an essential information source for citizens to access to become informed.   The UELMA recognizes this in requiring reasonable availability, on a permanent basis, of legal material, even that which is amended, repealed, or superseded.

The Drafting Committee debated conditions of access over several meetings, finally concluding that states already have long-term, relevant experience in making other materials available through archives, libraries, and state offices.  The enacting state has discretion to decide where, when, and how to provide access, including whether to charge fees for access.  Section 8’s requirement of permanent access does not require a state to provide unlimited access to its preserved legal information.  This drafting decision is consistent with the rest of the UELMA, which defers to state policy and practice in its other provisions.  Eventually, the Committee decided that the individual states could set their own requirements for access to legal material preserved under the Act, as long as the access is reasonable and in perpetuity.  For this reason, the Act does not address whether states can charge fees for access to preserved electronic legal material.

The Standards section of the Act (Section 9) directs official publishers of electronic legal material to consider developing standards and best practices as they choose and to implement methods for the authentication, preservation, and permanent access of electronic records.  The “Guiding Principles to Be Considered in Developing a Future Instrument,” the best practices document of the Hague Conference on Private International Law, were important guidelines that were repeatedly consulted in the drafting process.

Throughout its deliberations, the Drafting Committee was advised and informed by a large number of advisors and observers who came from federal and state governments, commercial legal publishers and software vendors, and a number of interested organizations.  Two American Bar Association advisors brought knowledge of and experience with technologies to the drafting process.  The observers were very helpful in assisting the Committee in its understanding of the possible impacts of proposed sections of the Act.  In some instances, the observers were able to explain existing and emerging technologies that might be used to accomplish the Act’s specified outcomes.  The Committee watched technology demonstrations and investigated various authentication processes already in effect.  The drafting process was strengthened by the level of support and expertise the advisors and observers brought, but, in the end, the Act was entirely the Committee’s work.

By designating the Committee’s product a uniform law, the ULC recognized the importance of the topic and urged wide adoption of the Act.  The final step in the UELMA’s development will be its introduction into state legislatures.   Bill sponsors are being identified, and the ULC anticipates the UELMA will be introduced in at least 8 states in January 2012, with the possibility of introduction in as many as 12.

The ULC has appointed an Enactment Committee for the UELMA to assist the larger ULC Legislative Committee with its charge to “endeavor to secure the enactment of [uniform] legislation.”   The Enactment Committee prepares “talking points” and summaries of the legislation, and works with individual legislatures, on occasion, to answer questions and further the introduction and approval of the Act.  Volunteers from several interested associations are also preparing to work towards the Act’s approval.  With strong support from the ULC and volunteers working on its behalf, by next summer the Uniform Act may itself become “legal material” in one or more states.

Barbara Bintliff
Barbara Bintliff is the Joseph C. Hutcheson Professor in Law at The University of Texas School of Law, and Director of Research at the School’s Tarlton Law Library and Jamail Center for Legal Research. She is The Reporter for The Uniform Electronic Legal Material Act.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.

A Copyright Will Protect You From Pirates - A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

In 2008, the State of Oregon sent a takedown notice to Tim Stanley, asking him to remove copyrighted material from Justia, Stanley’s pioneering free law website. Such takedown notices are relatively common in the world of Napster, YouTube, BitTorrent, and LimeWire.  However, Stanley, the founder of FindLaw, and later Justia, wasn’t publishing music or video.  He was publishing the Oregon Revised Statutes on his website, and the State of Oregon claimed that Justia’s free version of the statutes was infringing its copyright.

That’s right: the State of Oregon claimed a copyright in its statutes, and it wanted to enforce that copyright against a company publishing them for free online.

The conflict was resolved amicably, with the state inviting Tim and Public.Resource.org’s Carl Malamud to Salem for a public hearing, in which the state decided to revoke its takedown demand. But the compromise was an uneasy one.  Oregon did not disclaim copyright in the statutes — it merely agreed not to enforce its copyright claim against Justia and Public.Resource.org.  This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law.  But this incident isn’t isolated.  LexisNexis believes that it owns the Georgia Code.  And the statutes of Colorado, Wyoming, and Mississippi.  The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Copyright in public law means that a state or a publisher could restrict fundamental rights in law.  Things like copying — even citing the law in a brief — could be considered an infringing use.  This makes lawyers, journalists, the public, and even judges into pirates when they quote from statutes.  It subjects innovators, entrepreneurs, and other publishers, who could introduce competition in legal publishing, to potential copyright liability.  It chills innovation and blocks the widespread publication of the law.

And although statutes are clearly in the public domain, they are one of the last bastions of closed-source content on the Internet. A combination of state budget cuts, our antiquated process for codifying the law, and aggressive contract terms from publishers have conspired to create private copyright claims in public law.

How did we get to this state of affairs?  How can any commercial publisher believe that it “owns” our public law?  Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable?  And what can we do about it?

I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.

How Can a Publisher Copyright Statutes It Didn’t Write?

At the outset, it seems crazy to say that publishers can copyright the law at all.  After all, legislators draft, debate, amend, and pass the law, and governors sign bills into law.  Most people consider statutes to be written by the people, since they are written on the people’s behalf by their elected representatives.

Publishers don’t write the law.  So how can they claim copyright in it?

Raw bills signed into law by governors aren’t the same thing as the codes that appear in bound volumes on the shelves. Statutes and codes are organized into outlines, with similar topics bunched together into titles, chapters, and sections. So, for example, a state’s election laws might all appear within the same title in the state code.  This “codification” process is sometimes dictated in the bill itself (especially when the bill amends an existing statute on the books), but often the codification process is left up to editors after the fact.

In addition, most codified statutes have headlines (called “catchlines” in the art) at the top of each section, and these don’t appear in the bill versions of statutes — they are later added by editors.

Codifiers and publishers add varying degrees of editorial enhancements to statutes, although many of these enhancements are pretty mechanical.  Hyperlinks between statute sections or to cases, or annotations showing where statutes have been cited, are good examples of additions that are more mechanical than editorial.

Finally, in the codification process, editors will occasionally need to resolve conflicts between a recently passed law and the rest of the code section where the law will be placed.  For example, some statutory titles have definitions that apply to all of the code sections beneath.  When a new law with conflicting definitions is codified in that section, an editor must resolve the conflicts (sometimes requiring commercial publishers to change an enacted statute, if you can believe that).

For most states, this codification process is simply a part of the legislature’s job.  They employ a team of editors in an office of codification counsel, and the legislature codifies passed bills into the state’s statutory code.

The codification process is difficult, time consuming, and expensive.  Many states (and Congress) employ teams of lawyers and legislative experts who organize and annotate their enacted statutes into codified volumes for publication.  However, some states outsource the editorial operations to legal publishers such as LexisNexis and West Publishing Co. (wholly-owned subsidiaries of the Anglo-Dutch publishing giant Reed Elsevier and Canadian mega-conglomerate Thomson Reuters, respectively).  And, apparently, publishers require in their contracts that the state grant to the publishers all of the intellectual property in the state codes that result.

Thus we have commercial publishers who claim a copyright in state statutes.

Is a Private Copyright in State Statutes Constitutional / Enforceable?

That briefly explains why a commercial publisher is even in a position to make a claim of intellectual property in statutes.  But the idea of state-owned (or private, foreign-owned) copyrights in public law is so counterintuitive, we should examine whether the claim is defensible.  Is copyright in state statutes enforceable?

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

The new crown copyright?

Historians would recognize this kind of claim to copyright in state law.  Before the American Revolution, the common law recognized the King’s (or Queen’s) right to copyright in a nation’s laws – the term was called “crown copyright.”  Any attempts to copy or quote the law must be authorized by the sovereign.  Although crown copyright still exists in the world, the United States for more than 200 years has stood for the rebellious idea that its law is owned by the people, and it may be used freely by them without the consent of the government.

The Founding Fathers considered copyright sufficiently important to address it in the Constitution’s Article I, Section 8 grant of powers to Congress: The Congress shall have the power “to Promote the Progress of Science… by securing for limited Times to Authors… the exclusive Right to their… Writings.”

It was clear enough that copyright was the purview of the people’s representatives in Congress, not of the executive. Congress removed all doubt in enacting 17 U.S.C. § 105, which establishes that works of the federal government (not just statutes, but all works) are not protectable by copyright — the federal government may not restrict the power of the people freely to use government works.

American copyright law is the opposite of crown copyright. Not only does the President not have a copyright in government works, but the entire federal government is barred from asserting copyright protection for government works.

Although the U.S. Code has little to say about copyright claims that states might assert in state codes, early American courts addressed the question several times, thereby establishing the legal framework for evaluating these claims.

Courts: State Codes Belong to the People

Courts have held time and time again that statutes may not be copyrighted, either by states or by private publishers. Some of our oldest copyright cases address issues of legal information; these cases generally held that the law is uncopyrightable.  See generally L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989), and cases cited therein.

First, the Constitution limits the protection of copyright to “authors,” and courts have held that, in copyright law, government actors (whether state or federal) cannot be considered the authors of public law.

In Wheaton v. Peters, one of the reporters of early American Supreme Court opinions, Richard Peters, Jr., republished without permission twelve volumes of the reports of his predecessor Henry Wheaton. 33 U.S. (8 Pet.) 591 (1834).  In its first opinion on copyright, the Court held that Wheaton could have no copyright in the opinions of the U.S. Supreme Court. 33 U.S. at 668 (“The Court are unanimously of the opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.”)

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

The Supreme Court in Banks v. Manchester held that a publisher of Ohio Supreme Court opinions could not be liable in copyright, because neither the previous publisher nor the court could be considered an author under the Copyright Act of 1873. 128 U.S. 244 (1888) (“Judges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.  The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .”)

This rationale applies with even more force to legislatures, where statutes are written not by individual judges, but by the people’s elected representatives.  If copyright law doesn’t consider judges to be authors, it certainly won’t consider a representative legislature to be one.

Second, courts have consistently held that citizens have a Constitutional due process right to have access to the laws that govern them. Because copyrights in state law limit that access, courts have time and again resolved the conflict by holding that state statutes may not be copyrighted.  See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866) (publisher can’t copyright state statutes, even if state purports to give exclusive publishing rights); Howell v. Miller, 91 F. 129 (6th Cir. 1898) (“no one can obtain the exclusive right to publish the laws of a state”) (Harlan, J., sitting by designation); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (Mass. 1886) (“Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.”)

State legislatures cannot claim copyright to their statutes, because legislatures are not considered authors for the purposes of copyright law, and because the public’s due process rights to access the law serve as a limit on the copyrightability of state statutes.

Courts: Private Publishers Face Limited Copyright for Even Their Own Work

Even where they add material to public codes, publishers’ copyright claims in that work are limited by the Copyright Clause of the Constitution and by copyright provisions in the U.S. Code.

The Copyright Clause requires that works involve some modicum of creativity, so purely mechanical operations such as adding page numbers or numbers in an outline are not copyrightable. Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991). The publisher of a treatise about state statutes could claim copyright protection, but a publisher could not, for example, claim copyright in mechanical operations such as adding the next number in sequence to a codification, or collecting cases that cite to a section of the code. See also Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection).

Further, when legislatures subsequently sign the original works of publishers into law, the authored works pass into the public domain.  See Building Officials & Code Administrators Intl., Inc. v. Code Tech., Inc.., 628 F.2d 730 (1st Cir. 1980) (“BOCA”) (model code authored by private organization entered public domain when adopted by the State of Massachusetts); Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002) (once the government takes action and passes the model code into law, “there is no reason to believe that state or local laws are copyrightable.”).

Finally, the act of organizing new laws into the outline format of the existing code probably deserves very little copyright protection.  Where a legislature amends a particular code section, the publisher’s act of processing the amendment is not creative enough to justify copyright protection under Feist: The process of placing a new law where it belongs in an existing code is often either so straightforward or so arbitrary as not to qualify as a creative act.

How Copyright Law is Applied to State Codes

Based on this discussion of copyright law, we can evaluate the copyright claims that publishers would likely make about state statutes.  The following seems crystal clear:

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

1. Federal statutes (and all federal materials, really) are uncopyrightable, period. Congress has prescribed this by law, and in any event, the U.S. Code is codified by the federal Office of Law Revision Counsel, not by a private publisher.

2. For state statutes, the underlying statutes themselves are almost certainly uncopyrightable. Courts consider them to have been written (constructively) by the people, and due process requires that people have unimpeded access to the laws that govern them.

Although courts haven’t addressed the examples below, the caselaw suggests that private publishers can’t claim much copyright protection in state codes:

Where public employees of states codify, organize, annotate, or write catchlines, is the resulting compilation copyrightable by the state? Courts might hold that the organization of statutes and catchlines meet the minimum constitutional requirements of creativity outlined in Feist. (Annotations, on the other hand, which are effectively lists of citing articles and cases, are uncopyrightable “mere facts”).

However, the same due process claims that protect the public’s right to the underlying statutes also protect their right to the codified statutes, especially if the codified version is the state’s “official” version of the statutes. Moreover, states and state employees are agents of the people, and courts are likely to hold that the work product of states and state employees is owned collectively by the people in the public domain. The official code, when codified by the state, is uncopyrightable.

Where states hire a publishing company to codify their enacted statutes, is the resulting compilation copyrightable? When a state outsources its work to private publishers, the publishers are agents of the state. Under agency law, publishers could have no more claim to copyright than the contracting agent could.  So if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher.

The definitive copyright treatise Nimmer on Copyright adds that contract law is an important part of the analysis: Nimmer points out that that if the state’s publishing contract classifies the publisher’s codification as a “work for hire,” then the state owns the resulting intellectual property on behalf of its citizens. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §§ 5.12 n.29 and 5.13[B][2]. Where states specify in their contracts that contractors are performing the work of the state, are agents of the state, or are performing a work for hire, courts would be unlikely to enforce copyrights for the agent to which the principal is not entitled.

Could a publisher claim copyright in its organization of a state code? Although copyright law protects the “compilation” of otherwise uncopyrightable elements (the classic example being an anthology of poetry, in which the poems themselves have passed into the public domain, but in which the author can claim copyright for their selection and arrangement) — publishers of state codes have much less discretion in their work than do publishers of other kinds of compilations.  Publishers of state codes may not, for example, decide which enacted laws to include in the code.  There is no element of selection.  And the code has a pre-established organizational structure that the publisher must follow in the codification process.  The placement of a passed law in the code section to which it most closely relates may require skill, but it is not creative for purposes of the copyright law.

In short, courts should protect original, creative editorial work, such as articles about the law written by an author.  But they should not give private publishers copyright protection where the publishers are performing functions necessary for codifying the official version of the code (such as organizing by topic or writing catchlines). Adoption of this view would protect new creative works while vindicating citizens’ important due process rights in public domain law.

Policy: Should We Root for Publishers?

Printing Press at the GPO by Ed Walters - Licensed under a Creative Commons CC BY-NC 2.0 License

Printing Press at the GPO by Ed Walters - Creative Commons CC BY-NC 2.0 License

Commercial legal publishers would likely argue that copyright should protect their creative work. Writing catchlines and organizing codes require expertise, and are expensive.  If anyone could copy the completed work, they might argue, publishers would never be able to afford to employ editors, and so would never be able to afford to pursue this line of business.  Legal publishing is a for-profit enterprise, and companies should be allowed to recoup their costs, even for state work.

However, when the work is on public law, the analysis must be different.  First, there are important policy implications to limiting access to statutes.  Copyright is not the only way for publishers to be rewarded for their labors.  And if courts choose not to enforce private copyright in public law, publishers could simply charge each state a fair rate to compensate them for their efforts.

Second, if publishers are using state contracts to create proprietary codes, the publishers are effectively receiving corporate welfare, a taxpayer-funded subsidy to create private works. Especially in times of limited budgets, states should be wary of spending taxpayer dollars in this way.  Taxes are well spent to create public infrastructure, such as highways (or statutes).  But taxpayers would revolt if states financed toll roads owned by foreign transportation conglomerates.  Public financing of copyrighted statutes is no different.

How States Can Take Back their Codes

Just this week, the Uniform Law Commission passed the Uniform Electronic Legal Materials Act, designed as a blueprint for state laws that would require preservation and authentication of state statutes published online, while making those statutes permanently available to the public.  The Act would have states designate a state employee or agency, not a private publisher, to serve as an “official publisher” of statutes for purposes of authenticating and preserving state codes.  To preserve the public’s permanent access under the Act, states should take whatever steps are necessary to restore statutes to the public domain. The Act thus points to the central role that the government, not private publishers, must play in the stewardship of our state statutes.

There are some straightforward ways in which states could clear up any confusion about the copyrightability of their state statutes.

States could hire their own codification counsel, do the work of statutory codification in-house, and make clear that the end result is in the public domain.  To the extent that private publishers sell proprietary versions of the code, those publishers may use the public version of the code as a starting point, and copyright their improvements. This approach is recommended as a best practice, but it may not be feasible for all states in difficult economic times.

Separately, to preserve statutes in the public domain, a state could contract with a commercial publisher for private codification services, but specify clearly in its contract that the resulting code is a work made for hire, and, consequently, is in the public domain.  In this case, it would make sense for the state to require the publisher to deliver a code free of proprietary commercial enhancements so that the work may pass completely into the public domain.  If publishers wish to add proprietary content, they may use the public code as their starting point.  But such proprietary content would not be subsidized by tax dollars.

Finally, legislatures can simply enact the codified statutes.  Congress does this with the codified U.S. Code, effectively blessing the work of its Office of Law Revision Counsel in codifying statutes.  If a legislature merely enacted its code by voice vote, the Code would pass into the public domain.

Conclusion

Commercial publishers perform an important role in codifying state statutes.  Their expertise and skill are vital to protecting our rule of law, which is rooted in an informed citizenry. However, statutes are by definition in the public domain, and rightly so.  Efforts to own our public law, by American-owned or foreign-owned publishers, violate both our understanding of copyright and our due process rights to access the laws that govern us. When states work together with private publishers to codify their official statutes, neither law nor policy suggests that the publishers may own the resulting codes.

Ed WaltersEd Walters is the CEO of Fastcase. Although nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much. Views expressed here are his own.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.

Law BooksQuestion: Is there a good reason why judges should not be blogging their opinions?

Follow my thinking here.

I, like many librarians, love books. By that I mean I love physical books. I love the feel of paper in my hand. I love the smell of books. When I attended library school, there was no doubt in my mind that I would work in a place surrounded by shelf after shelf of beautiful books. I was confident that I would be able to transfer that love of books to a new generation.

That’s not how things turned out. Without recounting exactly how I got here, I should say that I am a technology librarian, and have been since even before I graduated library school. Technology is where I found my calling, and where libraries seem to need the most help. As I delve deeper into the world of library technology, particularly in the academic setting, I am increasingly forced to confront an uncomfortable reality: Print formats are inferior to electronic. And in some of my darker moments, I may even go so far as to echo the comments of Jeff Jarvis in his book “What Would Google Do” when he writes: “print sucks.”

On page 71, talking about the burden of physical “stuff,” Jarvis writes:

“It’s expensive to produce content for print, expensive to manufacture, and expensive to deliver. Print limits your space and your ability to give readers all they want. It restricts your timing and the ability to keep readers up-to-the-minute. Print is already stale when it’s fresh. It is one-size-fits-all and can’t be adapted to the needs of each customer. It comes with no ability to click for more. It can’t be searched or forwarded. It has no archive. It kills trees. It uses energy. And you really should recycle it, though that’s just a pain. Print sucks. Stuff sucks.”

In this paragraph, Jarvis may as well have been talking about the current state of online legal information. Although we may not have figured out the magic bullets of authenticity and preservation, the fact remains that print is a burden. In many cases, it is a burden to our governments, and our libraries.

There are good reasons to proceed cautiously towards online legal information. However, the most significant barriers to accepting new modes of publishing official legal information online, like judges’ blogging opinions, may be cultural and political. In the end, law librarians and other legal professionals can’t allow our own nostalgia and habit to stand in the way of changes that can, should, and must happen.

AALL Working Groups

As many readers may know, the American Association of Law Libraries (AALL) began forming state working groups earlier this year. The purpose of those working groups was to “help AALL ensure access to electronic legal information in your state.” This is certainly a worthwhile goal, and one I obviously support. But the PDF document online, calling for formation of these working groups, sends a mixed message.

The very first duty of each working group is to “take action to oppose any plan in your state to eliminate an official print legal resource in favor of online-only unless the electronic version is digitally authenticated and will be preserved for permanent public access, or to charge fees to access legal information electronically. This is an increasingly common problem as states respond to severe budget cuts.”

Perhaps it’s just the phrasing of the document that bothered me. Rather than even providing guidance to states planning to eliminate print legal resources, AALL has set as its default position the opposition to any such plan.

In fairness, I note that the document hints that online-only legal resources might be acceptable if states don’t charge for them, or if such resources meet the rather complex standards laid out in the Association of Reporters of Judicial Decisions’ Statement of Principles.

The Association of Reporters of Judicial Decisions (ARJD) published Statement of Principles: “Official” On-Line Documents in February 2007, revised in May 2008. Most tellingly, in Principle 3 of the Statement they write: “Print publication, because of its reliability, is the preferred medium for government documents at present.”

Later in the document we find out why print is so reliable. Talking about electronic versions, the ARJD says they should not be considered official unless they are “permanent in that they are impervious to corruption by natural disaster, technological obsolescence, and similar factors and their digitized form can be readily translated into each successive electronic medium used to publish them.”

Without question, electronic material must be able to survive a natural disaster. The practice of storing information on a single server or keeping all backups in the same facility could be problematic. But emerging trends and best practices could help safeguard against these problems. In addition, programs like LOCKSS (Lots of Copies Keep Stuff Safe) can help alleviate some of these concerns by making sure many copies of each digital item exist at multiple geographic locations.

Also, digital format obsolescence has largely been overstated. PDF documents are not going anywhere anytime soon. Even conservative estimates establish PDF as a reliable format for the foreseeable future.

HTML may be no different. Consider that the very first Web document, Links and Anchors, is almost valid HTML5. Nearly 20 years later, that document is compatible with modern Web browsers.

BookOn the other side of the equation, is print impervious to natural disaster, or even technological obsolescence? Of course not. At Yale, with our rare books library and large historical collection, I have witnessed first hand the damage time can do to a physical book. Even more importantly, books in the last hundred years have been published so cheaply they may fall apart even sooner than books published centuries ago.

Print and Electronic Costs

The reality is that moving to online-only legal information is a good thing for everyone involved in producing and consuming such information. The burden of print is not limited to the costs forced upon states that produce it; that burden is also borne by libraries and citizens who consume it.

As mentioned above respecting the AALL working group document, many states are already looking at going online-only to cut costs, and why shouldn’t they? With current budget situations across the country being what they are, printing costs being particularly high, and electronic publishing costs being so low, of course states are looking at saving money by ending needless printing.

But libraries would also benefit from the cost savings of governments’ moving to electronic formats. Not only do libraries currently have to subsidize printing costs by paying for the “official” print copies of legal materials; libraries also have to pay for the shelf space, as well as manpower to process incoming material and place it on the shelf, and may also have to pay additional costs for preserving the physical material. Not to mention the fact that we may pay for additional services that furnish access to the exact same material in an electronic format.

The costs involved in dealing with print legal resources are well known to most librarians. So why aren’t we clamoring for governments to publish online-only legal information?

Officialness, Authenticity, Preservation, and Citeability

Of course there are genuine concerns about online-only legal information. The big sticking points seem to be (in no particular order) officialness, authenticity, preservation, and citeability. Each issue is worthy of, and has been the subject of, much discussion.

Officiality may be in some ways the easiest and most difficult hurdle for online-only legal information to leap. To make an online version of legal material official, an appropriate authoritative body need only declare that version “official.” The task seems simple enough.

The more difficult part may be political. With organizations like AALL and ARJD currently opposing online-only options, that action may be politically difficult. Persuading lawyers, judges, and legislatures to approve such a declaration could be even more difficult. Can you imagine a bill, regulation, or some other action making a blog the “official” outlet for a particular court’s opinions?

The question of authenticity is more difficult to deal with from a technological perspective, although there has been interesting work done with respect to PDFs, electronic signatures, and public and private keys. The Government Printing Office (GPO) has done a great job leading the way in the area of authenticity: http://www.gpoaccess.gov/authentication/. The new Legislation.gov.uk site unveiled recently has taken a different approach from the GPO’s. As John Sheridan has written in an earlier post, at the moment The U.K. National Archives are not taking any steps towards authenticating the information on the Legislation.gov.uk site, but they recognize the need to address the issue at some point. John Joergensen at Rutgers-Camden has taken yet another approach. And Claire Germain, in a recent paper about authentication practices respecting international legal information (pdf), states that those practices vary throughout the world. Thus the prickly question of authenticating online legal information is an issue that’s not going away any time soon.

AALL and ARJD have made a big deal about preservation of online legal information, an issue that’s important for librarians, too. Unfortunately, this is another area where no good answer exists to guide us. As Sarah Rhodes wrote earlier this year, “our current digital preservation strategies and systems are imperfect – and they most likely will never be perfected.”

The Library of Congress National Digital Information Infrastructure & Preservation Program (NDIIPP) has some helpful resources. The Legal Information Preservation Alliance (LIPA) also provides some good guidance in this area. However, many librarians are still reluctant to accept that digital preservation practices may enable us to end our reliance on print.

A similar reluctance can be seen in resistance to the Durham Statement, which — though directed at law reviews — also says something about other kinds of online legal information. Most notably, Margaret Leary of the University of Michigan chose not to sign the Durham Statement, and discussed her decision to continue to rely on print at a recent AALL program. In a listserv posting quoted in Richard Danner’s recent paper, Ms. Leary asserted: “I do not agree with the call to stop publishing in print, nor do I think we have now or will have in the foreseeable future the requisite ‘stable, open, digital formats’.” Similarly, Richard Leiter explains that he signed the Durham Statement with an asterisk because of the statement’s call for an end to the printing of law reviews.

What constitutes ‘stable, open, digital formats’ for the purposes of satisfying some librarians is unclear. As I mentioned earlier, a number of digital formats currently fit this description. This makes me think that there’s something else going on here, a resistance to abandoning print for other reasons.

Citeability also becomes an issue as print legal information disappears. If there is no print reporter volume in which an opinion is issued, then how would one cite to an opinion (setting aside for a moment Lexis and Westlaw citations)?

However, efforts towards implementing “medium-neutral legal citation formats” have already been made. According to Ivan Mokanov’s recent VoxPopuLII post, most citations in Canada are of a neutral format. In the United States, LegisLink.org has made an effort to improve online citations, as Joe Carmel describes in his recent post. Work on URN:LEX and other standards has resulted in some progress towards dealing with the citeability issue. Organizations like the AALL Electronic Legal Information Access & Citation Committee also deserve credit for taking this on. [Editor's Note: Those organizations have produced universal citation standards -- such as the AALL Universal Citation Guide -- which have been adopted by a number of U.S. jurisdictions.] Even The Bluebook supports alternative citation formats. For example, rule 10.3.3, “Public Domain Format,” specifies how to cite to a public domain or “medium-neutral format.” The Bluebook even goes so far as to allow citation in a jurisdiction’s specified format.

But despite all this work, nothing has yet stuck.

The Next Step

One thing you’ll notice respecting all of these issues is that they are currently unsettled. While AALL and ARJD have both suggested that they would look favorably on online-only legal information if it were official, authenticated, and preserved (they do not mention citeability), there is no indication of when we will reach a level of achievement on these issues that would be satisfactory to these organizations. Can governments, libraries, and citizens afford to wait?

Asking states to continue to bear the burden of publishing material in print as they run out of funding, and libraries to bear the expense of preserving that print, is irresponsible. While we might not have all of the answers now, we certainly have enough to move forward in an intelligent manner.

The National Conference of Commissioners on Uniform State Laws (NCCUSL) has been working on an Authentication and Preservation of State Electronic Legal Materials Act. [Editor's Note: The Chair of the Act's Drafting Committee is Michele L. Timmons, the Revisor of Statutes for the State of Minnesota, and its Reporter is Professor Barbara Bintliff of the University of Texas School of Law.] According to the Study Committee’s Report and Recommendations for the Act’s Drafting Committee, the goal of the draft should be to “describ[e] minimum standards for the authentication and preservation of online state legal materials.” This seems like an appropriate place to start.

Rather than setting unrealistic or vague expectations, the minimum standards provided by the draft act seem to allow some flexibility for how states could address some of these issues. As opposed to working towards a “stable and open digital format,” which seems more a moving target than an attainable goal, the draft act sets forth an outline for how states can get started with publishing official and authentic online-only legal information. While far from finished, the draft act appears to be a step in the right direction.

What Is the Real Issue?

I think the real sticking point on this matter is mental or emotional. It comes from an uneasiness about how to deal with new methods of publishing legal information. For hundreds of years, legal information has been based in print. Even information available on the Lexis and Westlaw online services has its roots in print, if not full print versions of the same material. It’s as if the lack of a print or print-like version will cause librarians to lose the compass that helps us navigate the complex legal information landscape.

Of course, publishing legal information electronically brings its own challenges and costs for libraries. Electronic memory and space are not free, and setting up the IT infrastructure to consume, make available, and preserve digital materials can be costly. But in the long run, dealing with electronic material can and will be much easier and less costly for all involved, as well as giving greater access to legal information to the citizens who need it.

So Judges Blogging?Gavel

Question: Is there a good reason why judges should not be blogging their opinions?

Although he was the co-chair of the ARJD committee that produced the Statement of Principles, even Frank Wagner, the outgoing U.S. Supreme Court reporter of decisions, acknowledges that “budgetary constraints may eventually force most governmental units to abandon the printed word in favor of publishing their official materials exclusively online.” He also recognizes that the GPO’s work in this area may put an end to the printed U.S. Reports sooner than other “official publications.”

So were an appropriate authority to make them official, and some form of authentication were decided on, and methods of preservation and citation had been taken into account, would you feel comfortable with judges’ blogging their opinions?

We have to get over our unease with new formats for publishing online legal information. We have to stop handcuffing governments and libraries by placing unrealistic and unattainable expectations on them for publishing online legal information. We have to prepare ourselves for a world where online is the only outlet for official legal information.

I still enjoy taking a book off the shelf and reading. I enjoy flipping through and browsing the pages. But nostalgia and habit are not valid strategies for libraries of the future.

jason_eisemanJason Eiseman is the Librarian for Emerging Technologies at Yale Law School. He has experience in academic and law firm libraries working with intranets, websites, and technology training.

VoxPopuLII is edited by Judith Pratt. Editor in chief is Robert Richards.

good-housekeeping-logonew.gifWhen I first started off in the field of Internet publishing of legal materials, I did, briefly consider the topic of authenticity, and its importance to the end user.  My conclusion back then rested on the simple consideration that since I was a librarian and was acting under the aegis of a university, I had no problem.  In fact, my initial vision of the future of legal publishing was that as academic libraries strove to gain ownership and control over the content they needed in electronic form, they would naturally begin to harvest and preserve electronic documents.  Authentication would be a natural product of everyone having a copy from a trusted source, because the only ax we have to grind is serving accurate information.  Ubiquitous ownership from trustworthy sources.

Of course, I was new to the profession then, and very idealistic.  I grossly underestimated the degree to which universities, and the librarians that serve them, would be willing to place their futures in the hands of a very small number of commercial vendors, who keep a very tight grip on their information. This gradually reduces the librarian to the role of local administrator of other people’s information.

So much for us librarians.  Even without us, however, end users still need trustworthy information.  We are confronted with a new set of choices.  On the one hand, there is expensive access to the collection of a large vendor, who has earned the trust of their users through both long tradition and by their sheer power over the market.   On the other, there are court and government-based sources, which generally make efforts to avoid holding themselves out as either official or as reliably authenticated sources, and a number of smaller enterprises, which offer lower cost or free access to materials that they harvest, link to, or generate from print themselves.

For the large publishers, the issue of authentication is not a serious issue.  Their well earned reputations for reliability are not seriously questioned by the market that buys their product.  And, by all accounts, their editorial staffs ensure this continues.

So, what about everyone else?  In the instance of publishing court decisions, for example, Justia, Cornell’s LII, etc.,  collect their documents from the same “unofficial” court sources as the large publishers, but the perceived trustworthiness is not necessarily the same with some user communities.  This is understandable, and, to a great extent, can only be addressed through the passing of time.  The law is a conservative community when it comes to its information.

Along with this, I think it also important to realize that this lack of trust has another, deeper component to ul.jpgit.  I see signs of it when librarians and others insist on the importance of “official” and “authentic” information, while at the same time putting complete and unquestioned trust in the unofficial and unauthenticated offerings of traditional publishers.
Of course, a great deal of this has to do with the already mentioned reputations of these publishers.  But I think there is also a sense in which there has been a comfort in the role of publishers as gatekeepers that makes it easy to rely on their offerings, and which is missing from information that comes freely on the Internet.

In the context of scholarly journals, this has been discussed explicitly.  In that case, the role of gatekeeper is easily defined in terms of the editorial boards that vet all submissions.  In the case of things like court decisions, however, the role of the gatekeeper is not so clear, but the desire to have one seems to remain.  The result is discussions about the possibility of errors and purposeful alterations in free Internet law sources that often seem odd and strangely overblown. They seem that way to us publishers, that is.

So, for me, the crux of any debate about authentication comes down to this disconnect between the perceptions and needs of the professional and librarian communities, and what most Internet law publishers do to produce accurate information for the public.

As I said earlier, time will play a role in this.  The truly reliable will prove themselves to be such, and will survive.  The extent to which the Cornell LII is already considered an authoritative source for the U.S. Supreme Court is good evidence of this.  At the same time, there is much to be gained from taking some fairly easy and reasonable measures to demonstrate the accuracy of the documents being made available.

The utility of this goes beyond just building trust.  The kind of information generated in authenticating a document is also important in the context of creating and maintaining durable electronic archives.  As such, we should all look to implement these practices.

The first element of an authentication system is both obvious and easy to overlook: disclosure.  An explanation of how a publisher obtains the material on offer, and how that material is handled should be documented and available to prospective users.  For the public, this explanation needs to be on a page on the website.  It’s a perfect candidate for inclusion on a FAQ page. (Yes, even if no one has asked. I mean really, how many people really count questions received before creating their FAQs?). For the archive, it is essential that this information also be embedded in the document metadata.  A simple Dublin Core source tag is a start, but something along the lines of the TEI <sourceDesc> and <revisionDesc> tags are essential here (See http://www.tei-c.org/release/doc/tei-p5-doc/html/HD.html) .

An explanation of the source of a document will show the user a chain of custody leading back to an original source.  The next step is to do something to make that chain of custody verifiable.

It is at this point where things can either stay reasonable, or can spin off toward some expensive extremes, so let’s be clear about the ground rules.  We concerned with public-domain documents, which are not going to be sold (so no money transfer is involved), and where no confidential information is being passed.  For these reasons, site encryption and SSL certificates are overkill.  We aren’t concerned with the <i>transmission</i> of the documents, only their preparation and maintenance.  The need is for document-level verification.  For that, the easy and clear answer is in a digital signature.
At the Government Printing Office (GPO), the PDF version of new legislative documents are being verified with a digital signature provided by GeoTrust CA and handled by Adobe, Inc.  These are wonderful, and provide a high level of reliability.  For the initial provider, they make a certain amount of sense.

However, I question the need for an outside provider to certify the authenticity of a document that is being provided directly from GPO.  Note what the certification really amounts to:  an MD5 hash that has been verified and “certified” by GeoTrust.  It’s nice because anyone can click on the GPO logo and see the certificate contents.  The certificate itself, however, doesn’t do anything more than that.  The important thing is the MD5 sum upon which the certificate relies.
In  addition, the certificate is invalid as soon as any alterations whatsoever are made to the document.  Again, this makes some sense, but does not address the need and utility to add value to the original document, such as format conversion to HTML, XML or other useful formats, insertion of hypertext links, addition of significant metadata, etc.

The answer to this problem is to retain the MD5 sum, while dropping the certificate.  The retained MD5 sum can still be used to demonstrate a chain of custody.  For example, here at Rutgers–Camden, we collect New Jersey Appeals decisions provided to us by the courts.  As they are downloaded from the court’s server in MS Word format, we have started generating an MD5 sum of this original file.  The document is converted to HTML with embedded metadata and hypertext links, but the MD5 sum of the original is included in the metadata.  It can be compared to the original Word document on the court’s server to verify that what we got was exactly what they provided.

The next step is to generate an additional MD5 sum of the HTML file that we generated from the original.  Of course, this can’t be embedded in the file, but it is retained in the database that has a copy of all the document metadata, and can be queried anytime needed.  That, combined with an explanation of the revisions performed on the document completes the chain of custody.  As embedded in our documents, the revision notes are put in as an HTML-ized variation on the TEI revision description, and look  like this:
<META NAME=”revisionDate” CONTENT=”Wed May  6 17:05:56 EDT 2009″>
<META NAME=”revisionDesc” CONTENT=”Downloaded from NJAOC as MS Word document, converted to HTML with wvHtml. Citations converted to hypertext links.”>
<META NAME=”orig_md5” CONTENT=”8cc57f9e06513fdd14534a2d54a91737”>

Another possible method for doing this sort of thing would be the strategy suggested by Thomas Bruce and the Cornell LII.  Instead of generating an original and subsequent MD5 sum, one might generate a single digital signature of the document’s text stream, stripped of all formatting, tagging, and graphics.  The result should be an MD5 sum that would be the same for both the original document, and the processed document, no matter what the subsequent format alterations or other legitimate value-added tagging that were done.

The attraction of a single digital signature that would identify any accurate copy of a document is obvious, and may ultimately be the way to proceed.  In order for it to work, however, things like minor inconsistencies in the treatment of  “insignificant” whitespace (See  http://www.oracle.com/technology/pub/articles/wang-whitespace.html for an explanation), and the treatment of other odd things (like macro generated dates, etc. in MS Word), would have to be carefully accounted for and consistently treated.
Finally,  I don’t think any discussion of authenticity and reliability of legal information on the Internet should leave out a point I hinted at earlier in this article.  In the long run, information does not, and will not survive without widespread distribution.  In this time of  cheap disk space and fast Internet connections, we have the unprecedented opportunity to preserve information through widespread distribution.  Shared and mirrored repositories among numbers of educational and other institutions would be a force for enormous good.  Imagine an institution recovering from the catastrophic loss of their collections by merely re-downloading from any of hundreds of sister institutions.  Such a thing is possible now.

In such an environment, with many sources and repositories easily accessible, all of which are in the business only of maintaining accurate information, reliable data would tend to become the market norm.  You simply could not maintain a credible repository that contained errors, either intentional or accidental, in a world where there are many accurate repositories openly available.

Widespread distribution, along with things like the above suggestions, are the keys to a reliable and durable information infrastructure.  Each of us who would publish and maintain a digital repository needs to take steps to insure that their information is verifiably authentic.   And then, we need to hope that sooner or later, we will be joined by others.

There. I am still a naive optimist.

Joergensen 2010
John Joergensen is the digital services librarian at Rutgers University
School of Law – Camden.  He publishes a wide range of New Jersey primary
source materials, and is digitizing the libraries collection of
congressional documents.  These are available at
http://lawlibrary.rutgers.edu.

VoxPopuLII is edited by Judith Pratt.  Editor in Chief is Rob Richards.