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LII Team

Library with books

We’ve written quite a bit in this newsletter and in others about Public.Resource.Org. While one might get the impression that “PRO” exists primarily to engage the kind of litigation that led to, for example, its 2020 Supreme Court win in Georgia v. Public.Resource.Org, there is much more to the organization than going to court to fight for Free Law. While we’ve also written recently about the PRO-led coalition that puts the regulations of all 50 states on our website, we thought we’d use this installment in our series of spotlighting other free legal resources online to talk about some of what PRO makes available to the public directly through its webpage.  

PRO is largely the work of one person, Carl Malamud–though he’s always quick to give credit to other contributors to his projects, no matter how small their role. The homepage at public.resource.org features mostly Carl’s activism on behalf of freeing the law from behind paywalls. There, you can explore current and past PRO projects and watch videos where Carl articulates the problems and his solutions. 

At the top of the page is a second tab labeled “law.resource.org.” Clicking on that will take you to a new page. From there, you’ll find hyperlinks to official state codes, thousands of global safety codes, and even the public safety codes of India. Many of these collections are actually housed at the Internet Archive though furnished by PRO. Some are “bulk access” downloads of the text or data associated with the entire collected statutes of a particular state (like this), and others are individual volumes of a state’s codes (like this). And, yes, of course the Official Code of Georgia Annotated is among PRO’s offerings.  

Open book with reading glasses

We’re examining subsequent developments in Free Law related to the Supreme Court’s Georgia v. Public.Resource.Org decision on the occasion of its secondary anniversary. An accompanying article highlights three pieces of ongoing litigation that all cite to that case; but, this one dives a little deeper on one particular issue– fair use.  

In the PRO case, the Supreme Court noted that the copyright defense of fair use was far from a perfect solution for testing the limits of copyright. In hypothesizing about a world where the non-binding work product of courts and legislators enjoyed the “instant and automatic” protection of copyright unless expressly disclaimed by the state, the Court noted that “citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.” The Court continued,  “Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.” It concluded, “The less bold among us would have to think twice before using official legal works that illuminate the law we are presumed to know and understand.”  

In each of the three active copyright cases involving Free Law copies of standards or model codes incorporated by reference into law, fair use is likely to play an outcome-determinative role. In NFPA v. UpCodes, the trial court denied the plaintiff’s request for a preliminary injunction specifically because the fair use defense was too fact-specific to be overcome in an early motion before development of the factual record. In ICC v. UpCodes, the fair use defense was among the reasons (but not the sole reason) the court denied the plaintiff’s motion for summary judgment.  

But it is in ASTM v. Public.Resource.Org where fair use gets its most thorough day in court. In ruling that the defendant could not be liable for copyright infringement of any industry standard authored by the plaintiff that was both incorporated by reference into law and accurately reproduced by the defendant because that re-publication was fair use, the court included a 187-page Appendix that runs through the fair use analysis for each of the 217 standards that PRO reproduced. 

Federal law, particularly 17 USC Sect. 107, articulates four fair use factors:  

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

On the first factor, the court noted that the most important inquiry was whether or not the defendant stood to profit from the copying and concluded that PRO had no profit motive but was instead driven by its mission to make the law freely accessible to the public.  It also considered on a standard-by-standard basis in the Appendix whether each standard “provides information essential to comprehending one’s legal duties,” as part of the inquiry whether facilitating public access to that standard might be construed as a transformative use of the copyrighted work.

On the second factor, the court again analyzed each standard individually with an eye toward whether its text was incorporated “into law in a manner akin to copying all of the standard’s text into law,” or was instead “incorporated into law in a more nuanced way, such that the standard’s text is not an easy substitute for what is incorporated into law.” The court explained that the former would more likely weigh in favor of fair use than the latter.

On the third factor, the court also needed to consider for each of the 217 standards in controversy whether PRO had reproduced more of the standard than the law had actually incorporated and found that “most of the standards at issue have been incorporated by reference into regulations that do not specify that only certain provisions of the standards are incorporated by reference into law, nor do the regulations indicate which specific provisions of the standards relate to regulatory compliance, suggesting that ‘a greater amount of the standard’s text might be fairly reproduced.’”

The court was able to take a more holistic approach to the fourth factor–the economic harm to the plaintiff. Noting that it had been 14 years since PRO had first started reproducing the standards in question and that 4 years had elapsed since the plaintiff’s expert had first opined on the possible future harm, the court found that on the evidence before it “a reasonable jury could not return a verdict” that PRO’s actions had caused or would likely cause economic harm to the plaintiff with regard to the specific standards at issue.  

The district court’s detailed and thorough analysis is a stark reminder of the Supreme Court’s warning that fair use is not the ideal vehicle for solving these disputes. As the Supreme Court warned, the fair use defense is extremely fact-specific and creates high-stakes litigation that can seldom be resolved short of a trial. And yet, the limitations of the Government Edicts Doctrine keep driving trial courts to resort to the fair use analysis to solve these disputes. Perhaps one day both the authors of standards and model codes on one hand and Free Law advocates on the other will get a clear set of “as a matter of law” rules that will guide these disputes; but, until then, it seems that the fair use defense will play exactly the role that SCOTUS warned us about.

Supreme court building

April 27th marked the two-year anniversary of the Supreme Court ruling in favor of open access to the law in Georgia v. Public.Resource.Org. So it seems like a good time to examine how that ruling has influenced subsequent litigation relevant to Free Law efforts.

To recap, the Supreme Court examined the Government Edicts Doctrine and in a 5-4 vote held that the annotations prepared by LexisNexis at the direction of the Georgia Legislature and adopted as part of the Official Code of Georgia Annotated could not be the subject of copyright because the legislature, vested with the power to make law, could not be an “author” for the purpose of the copyright statute. The Court explained at length why legislators cannot claim copyright in their “non-binding legal works” just as they cannot hold copyright in the statutes themselves.  

As is often the case with Supreme Court decisions, many questions remain.  One issue, already the subject of prior litigation, has been impacted by this guidance from SCOTUS. That issue is whether outside entities who (unlike LexisNexis in the Georgia case) were not working under contract with and under the supervision of a state government can still claim copyright in works like industry standards or model codes when governments incorporate those works by reference into statutes or regulations.  

There are three active pieces of litigation on this issue, all at different stages, where the court has looked to the rule and reasoning of the Georgia v. Public.Resource.Org.  

  • American Society for Testing and Materials v. Public.Resource.Org., Inc., 13-cv-1215 (D. D.C.) 

This case features Public Resource.Org (PRO) defending its publication of various industry standards privately developed by the plaintiffs and later incorporated into law in various jurisdictions. Initially, the trial court granted the plaintiffs summary judgment, but the Court of Appeal for the D.C. Circuit remanded the case for further development of the factual record. After both parties again moved for summary judgment, the Supreme Court decided Georgia v. Public.Resource.Org.; and, the trial court requested more briefing in light of that ruling. The trial court held that the Government Edicts Doctrine did not apply to privately-authored standards, even once those standards are incorporated into law, because they were not authored by a government official or agency. Nevertheless, the court’s mixed ruling was largely favorable to PRO, finding that its publication of most of the standards at issue was protected under the copyright doctrine of fair use. (See the accompanying article, Fair Use & Free Law)

  • International Code Council, Inc. v. Upcodes, Inc., 17 Civ. 6261 (S.D. NY)

The International Code Council (ICC) is a standards development organization that develops model codes with the intent that jurisdictions will adopt them into the law. ICC accused defendant UpCodes of copyright infringement when the latter published on its website various ICC-authored model codes that had been incorporated by reference into the building codes of several jurisdictions. Just weeks after the Georgia v. Public.Resource.Org decision, the court here denied the parties’ competing motions for summary judgment. In harmonizing what SCOTUS had just done with various relevant prior decisions related specifically to the issues of model codes and incorporation by reference, the court deemed it significant that it was the intent of standard developments organizations like ICC that their model codes be adopted by governments and incorporated directly into the law. Consolidated with another case involving a related dispute between the parties, trial on the copyright claims awaits review of the dismissal of that other case by the Second Circuit Court of Appeal.   

  • National Fire Protection Association v. Upcodes, Inc., CV-21-5262 (C.D. Cal.)

In this case, a second standards setting organization (the NFPA) also sued UpCodes over the latter’s publishing of its standards that have been incorporated by reference into the law and sought a preliminary injunction. While the court found that differences in the facts between this case and Georgia v. Public.Resource.Org called into question whether the Government Edicts Doctrine should even apply, it nevertheless denied the injunction because NFPA had not carried its burden of proof at that early stage of litigation to demonstrate that it was likely to prevail against UpCode’s defense of fair use.  
This continuing litigation provides specific examples of what seemed to be clear in the immediate aftermath of the Georgia v. Public.Resource.Org decision: that it, like most decisions, left open more questions than it answered.

Lego figurine in pieces

As we’ve mentioned more than once recently, in 2020, Public.Resource.Org included LII in a five-year project to free the regulations of all 50 U.S. states. The first step was to conform the content to meet the standards set forth in the Web Content Accessibility Guidelines so that they would be fully machine readable and therefore equally accessible to text-to-speech users as to visual website users. But that was just the beginning.

LII has always focused on helping people find and *understand* the law. In the early days, we enhanced understanding by showing the structure of and interconnections between legal texts. We later made progress on connecting legal texts to the real-world objects they address. Most recently, we have brought to bear emerging human language technologies to help simplify and summarize legal text.  

Members of LII’s engineering team participating in the Law-and-AI research project Fairness in Artificial Intelligence, led by scholars Kevin Ashley and Diane Litman, have been exploring techniques that provide alternate approaches to summarizing complex legal texts. We have also been working with students to refine the techniques we innovated for the CFR and research new approaches to address the much broader range of definition styles used across the dozens of departments of each of the 50 states. Taken together, these projects provide the next set of tools to help us increase understanding of state regulations — and all of the other legal texts we publish.

Not since the early days of the World Wide Web have there been so many opportunities for technologists, and we’re not alone in having one on offer. We’re looking for an experienced DevOps engineer to join our small team. The posting is here and the answers to the most common questions are under “Job Profile Attributes” here.

The posting is currently open through May 31 – please spread the word! 

We helped 42 million people find and understand the law in 2021

The Legal Information Institute welcomed more than 42 million unique visitors to our website in 2021. We were surprised to see more visitors on our website in 2021 than in 2020 in light of the extraordinary confluence of current events and politics in 2020 – a presidential election, the start of the COVID-19 pandemic, and the Black Lives Matter movement all come instantly to mind. But as we welcome 2022, there is no doubt that close to 3.5 million more visitors viewed over 10.5 million more pages on law.cornell.edu in 2021 than in 2022.

As we watched traffic each month in 2021 outperform what we’d ever seen before, we looked for explanations. While bringing in more traffic is not necessarily a goal in-and-of itself, more visitors usually means we are doing something right, and fewer visitors often means there is room for improvements. Also, we are always pleased to hear from readers who find our straightforward approach to presenting legal information to be a welcome change from websites driven by a particular ideological, political, or commercial agenda. We like to think that more traffic to our website means that more people are finding the information they need to do their jobs or live their lives without the biases that sometimes shade how that information is presented elsewhere online.

In the end, we see three key reasons why more people used law.cornell.edu in 2021 than ever before.

State Regulations

Our ability to bring the law to the public has always depended on our capacity to ingest, process, and present large collections of poorly organized and inconsistently formatted government information. The United States Code, the Code of Federal Regulations, and even our publication of Supreme Court opinions are all good examples. In 2021, we moved our focus for the first time to an even larger challenge, the regulations of all 50 states.

The background: almost as soon as we began publishing the full text of the Code of Federal Regulations ten years ago, we began to lament having to leave off at the federal level. Questions like “when is hunting season?”, “what is the scope of care in assisted living facilities?”, or “how is local government involved in liquor licensing?” all reach the state level. So when Public.Resource.Org brought us the opportunity to work on all 50 states simultaneously, we jumped at the chance. Our newest technologist, Matt Carey, has brought his extensive domain knowledge to bear on new feature development; and, this semester we worked with a group of M.Eng. students to explore the data with a focus on topical retrieval and definition extraction.

Though this project is far from complete, we’ve already welcomed more than a half million visitors who viewed more than 2 million pages on our website that simply did not exist in 2020 – ranging in subject matter from standards for prompt, fair and equitable insurance settlements in California, to religious exemptions from school immunization requirements in New Jersey, to the organization of the Alabama Athletes Regulatory Commission. Our move from beyond the federal government and into state government information in 2021 was an obvious source of additional readership in 2021.

Wex Expansion

In 2020, we began a program of hiring Cornell law students displaced from other employment by the pandemic. Our main task for many of those students was to review and improve upon thousands of definitions we had ingested into Wex almost a decade prior. We made a decent start, but we also realized that we’d need to add staff capacity and expertise if we wanted Wex to realize its full potential as a definitive collection of explanations about important legal concepts and terminology. So, in early 2021 we hired Nichole McCarthy as our first Original Content Collections Manager.

Nichole embraced the Definitions Project with verve. Her team of Cornell students has now renovated or created close to 3,000 definitions. This new content is not only longer and more complete than what it replaces, it is more comprehensively and rigorously linked to our other collections and other Free Law sources from around the internet.

And folks have noticed. Over 800,000 more people read a Wex entry in 2021 than 2020. In all, they visited close to 3.5 million additional pages of Wex articles than they had last year. Emboldened by this massive increase, we are planning big things for WEX.

Search Engine Optimization

Since we don’t advertise our content, you may be wondering how people find us – especially for the first time. The answer, almost always, is that they come to us from a search engine like Google or Bing. You’ve probably noticed that our pages rank well whenever you use a search engine to look up, for example, a statute, a regulation, or an unfamiliar legal term. That is not a coincidence. We work hard to ensure that our content bears all the hallmarks of quality that the search engines use to assess whether information on a website appears reliable and current.

We believe that the two projects we’ve detailed above helped us improve our Search Engine Optimization (SEO) beyond our routine efforts. A massive new collection like State Regulations, updated regularly and driving millions of new pageviews to content not otherwise available for free on the internet, cannot help but get the attention of the search engine algorithms. All of the updates to Wex, especially all of the new hyperlinks to other quality quality pages on our site and other reputable sites, is also doubtless a factor in boosting SEO.

Moving up in the search results even a place or two can have a big impact on traffic – especially when it means moving into the first slot. We see this as the main reason why some of “steadier” collections such as the Federal Rules and the Code of Federal Regulations each welcomed around 350,000 more users in 2021 than in 2020.

Of course, 2021 wasn’t just about record traffic to our website. We made real progress on several projects that will eventually result in new collections or new features in current collections. Whether or not they take us to new heights of website traffic, each will in its own way improve the public’s access to legal information online. We look forward to telling you all about them in future communications.

Champagne glasses

A ball dropping in Times Square. Making resolutions. Drinking champagne. Singing Auld Lang Syne. If you’re Russian, giving presents.  And, of course, the LII emailing to ask for your support with a last-minute donation match.  

Again this year, a generous donor has offered to match all donations for the rest of 2021.  If you haven’t had a chance, we hope you’ll take a moment before the festivities to make a gift.  

DONATE NOW

The New Year causes us all to look both back and forward. A year ago at this time, we were mostly looking backward on the dismal year that was 2020 — and looking forward to some peace and quiet! Although we’d expected a certain amount of post-election wrap-up traffic on 3 U.S.C.  § 15 (Counting electoral votes in Congress), little did we know that within a week, we’d have a traffic spike on 18 U.S.C.  § 2383 (Rebellion or insurrection) and § 2384 (Seditious conspiracy), or  § 2385 (Advocating overthrow of Government) – nor, within two weeks, on the U.S.  Constitution Annotated pages on impeachment. We also had no idea that two weeks before year’s end, our parent institution would make international news for a COVID shutdown.

But if you’d asked us to think about it carefully a year ago, what we would have hoped – and maybe even been so bold as to predict – was that as we moved forward on original content and technical innovation, members of the public would continue to look to us to help them find and understand the law. And looking forward, what excites us the most about the future is the impact our projects will have for the people who make use of our work.  

And here’s where you can help right now. Twice as much. We couldn’t have gotten this far without the stalwart support of our readers. Please consider giving a gift that will allow us to provide the law to the public – hopefully on happier, more optimistic topics than in 2021, but regardless, on topics that continue to be relevant to people’s families, businesses, and civic lives.  

DONATE NOW

Thank you, 

Sara Frug

Co-Director

Legal Information Institute

Name tag and sharpies

I like to pass on to our team the specific things that donors say about how our work makes a difference. So, first thing in the morning (or nearly first thing) on every work day this time of year, I look at the donor comments from the previous day.     

Make a Gift (and maybe a Comment, too?)

When I see donors’ comments, I also see their names. While I admit that most just pass me by, some definitely get my attention. I often recognize the names of longtime supporters and even the occasional family friend (Betsy in Portland, I know you’re out there!). I admit those are my favorite. But my brain also stops automatically on any “famous” name, though in the vast majority of cases it’s just a “regular” person who happens to have a notable moniker (the addresses provided are the best clue, as well as the fact that many of these names belong to fictional characters, deceased folks, and even an entire UK territory!).  

This year I’ve been keeping track of these notable names, and we’re all getting a chuckle out of my informal “Almost Famous” list. I thought you might, too. Again, none of these people are the actual “celebrity” (term used loosely) but are instead just folks like you who appreciate free legal information online. So far this year, I’ve noticed:

  • Not the gunfighter Jesse James or the politician Charles “Charlie” Wilson
  • Not the sportswriter Peter King or the reality tv chef Michael Simon 
  • Not the musical luminaries Richard Rogers and John Davidson
  • Not the island of Diego Garcia
  • Not box-office poison John Carter (of Mars)  [didn’t see that one?  Don’t worry, no one did.]
  • And not comedians Chris Elliot, Kevin Hart, or Steven Wright (and especially not Stephen Wright)

The point here might simply be that I unapologetically recognize the names of more comedians than anything else; but, my hope is that this list demonstrates that actual humans (like me!) look at — and very much appreciate — every single donation that LII receives to support our work. 

If you rely on free and open access to law, please consider making a donation and maybe even leaving us a comment of support. If you ARE famous, we’ll never tell. If not, that’s perfectly okay too.  🙂

Donate

Thanks,
Craig Newton: Not the mayor of Norcross, GA.

Elephant trunk being fed carrot

We often find the tale of the blind men and the elephant useful for explaining the many facets of the Legal Information Institute. In the story, each encounters a different part of the elephant – the tusk, the trunk, the legs – and comes away with a different perception of what an elephant is (it’s like a spear, like a snake, like a tree).  

You see where this is going, right?

GIVE

This old parable is a useful way of explaining how the LII is different things not just to our casual users, but even to our friends and supporters like you:  

  • Some admire our expertise in legal informatics and how we use that knowledge to extract, organize, and present statutes and regulations in usable formats with helpful features.   
  • Others appreciate our role as a source of unbiased explanations of legal concepts, constitutional principles, and Supreme Court cases.
  • Still others value our contributions as leaders and collaborators in a global movement to provide open access to legal information and keep it in the public domain.

Whatever part of the elephant you perceive when you come to our website, our goal is that you encounter a reliable source of trustworthy information that helps you find what you need to do your work, understand the news, or just live your life. Our hope is that you appreciate how your support has helped create that same experience for the more than 36 million other visitors to law.cornell.edu so far this year.   

GIVE

We take no money from Cornell University. Instead, we rely entirely on funds we bring in ourselves. Your support pays our small staff, covers the costs of cloud servers and software, allows us to compensate our student workers, and even lets us venture into the world to share our expertise and help others bring their open access legal initiatives to life.  

And we appreciate it more than we could ever express.  

With Gratitude,
Craig Newton, Co-Director

LII has always strived to discover new and better ways to make the law more findable and understandable for the public, which has given us a relentlessly practical orientation toward research. Most of the time, we have our hands full keeping up with the academic literature and supervising student research projects, but from time to time we find an opportunity to become involved in more formal research projects in one capacity or another. And very occasionally a project comes along that helps us consolidate what we have learned and enhance everything we offer the public.  

Last spring, LII, along with the Canadian Legal Information Institute (CanLII) and Harvard’s Library Innovation Lab became advisors to a new Law-and-Artificial-Intelligence research project entitled “FAI: Using AI to Increase Fairness by Improving Access to Justice.” Law-and-AI luminaries Professors Kevin Ashley and Diane Litman at the University of Pittsburgh lead the project, which aims to bring the fruits of law and AI research to the public. Their project proposal struck a chord with us, particularly when they noted that “Although many AI tools are already available to law firms and legal departments, these tools do not typically reach members of the public and legal service practitioners except through expensive commercial paywalls.” 

We were very fortunate this semester to be able to arrange for LII’s language and data science specialist, Dr. Sylvia Kwakye, to embed with the research team. This arrangement has given her a chance to think through the research challenges associated with very particular natural language interpretation tasks while exploring in detail the various ways in which the research data (notably the rules from Ph.D. student Huihui Xu’s research and caselaw sentences from CMU postdoc Jaromir Savelka’s research) could be used to enhance primary law resources on the LII website. We are particularly excited about the potential boon to public understanding afforded by the ability to connect definitions from state and federal regulations to explanations from the jurisprudence in the Caselaw Access Project corpus (see “Spotlight on Free“). We’ve also been heartened to see the ways in which the results of our most recent editorial enhancements to the Wex definitions (see “Anatomy of a Traffic Spike: Hard Work Pays Off“), along with the output of M.Eng. research work extracting definitions from U.S. Code, CFR, and now state regulations, might be of use.

We’re grateful for the chance to learn from the Law-and-AI research community and excited to bring our small role in this project full circle.