2011 » VoxPopuLII

Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes

authentication, Competition in legal publishing, Copyright in primary legal materials, Copyright in statutes, free access to law, Legal publishing, Preservation of electronic legal information, Preservation of legal information, Public access to legal information 6 Responses »

Jul 152011

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

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

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

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 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.

Open Robotics

Law and robotics, Law and robots, Legal liability of robots, Robotics and law, Robots and law 14 Responses »

Jul 012011

I would like to convince you of two things. The first is that robotics will follow computers and the Internet as the next transformative technology.¹ The second is that, for the first time in recent memory, the United States runs the risk of being left behind. I explain why we lawyers are to blame, and offer a modest, non-Shakespearean solution.

As William Gibson once said: “The future is already here—it’s just not very evenly distributed.” Transformative technologies have their early adopters. One is the military. The United States military was among the first organizations to use computers. It also created the ARPAnet, the Internet’s precursor. Today, the military makes widespread use of robots, as Peter Singer catalogs exhaustively in his 2009 book, Wired for War. The numbers are incredible; Air Force drones recently reached a million combat hours.

Other early adopters include artists and hobbyists. Computer-generated music began as early as the 1950s. Frank Herbert, the author Dune, was an early convert to personal computing. He wrote one of the first home computer guides — the ominously titled Without Me You’re Nothing. Today, hobbyists and “makers” are using Arduino and other platforms to build their own robots. The editor-in-chief of Wired Magazine is a noted DYI drone enthusiast. This summer there was an entire film festival devoted to robotics in New York City.

There is a sense in which robots are already mainstream. Your car was probably built by a robot. If you have ever purchased shoes from Zappos.com, a robot likely fished them out of the warehouse. Robot assistance is more common than not in certain surgeries. Sales of iRobot’s robotic vacuum cleaner are in the millions.

Look closely at headlines and you’ll begin to see robots there as well. Robotic submarines helped assess the extent of the BP oil spoil. A robot defused the bomb in Time Square. We sent robot ground units and drones to the Fukushima Daiichi nuclear power plant. Robots helped rescue the trapped New Zealand miners. More telling still: In the wake of a mining accident in West Virginia, a journalist asked why we were still sending real people into dangerous mines in the first place.

It is for these reasons and more that I believe Bill Gates’ vision of “a robot in every home”; I can see where Honda comes up with the estimate that it will sell more robots than cars by 2020; and I can understand why the Computing Community Consortium would entitle their 2009 report (PDF) to Congress “A Roadmap for U.S. Robotics: From Internet to Robotics.”²

Yet for all its momentum, robotics is at a crossroads. The industry faces a choice — one that you see again and again with transformative technologies. Will this technology be essentially closed, or will it be open?

What do I mean by these words? “Closed” robots resemble any contemporary appliance: They are designed to perform a set task. They run proprietary software and are no more amenable to casual tinkering than a dishwasher. The popular Roomba robotic vacuum cleaner and the first AIBO mechanical pet are closed in this sense. “Open” robots are just the opposite. By definition, they invite contribution. An open robot has no predetermined function, runs third-party or even open-source software, and can be physically altered and extended without compromising performance.³

Consumer robotics started off closed. Which goes part of the way in explaining why it has moved so slowly. A few years ago, only a handful of companies — Sony and iRobot, for instance — were in the business of making consumer robots or writing robot software. Any new device or functionality had to come down from the top. As introduced to the market, Sony’s AIBO dog could only run two programs, both written by Sony. At one point, consumers managed to hack the AIBO and get it to do a wider variety of things. A vibrant community arose, trading ideas and AIBO code. That is, until Sony sued them for violating the copyright in their software.

Compare the early days of personal computing, as described in detail by Jonathan Zittrain in his book, The Future of the Internet. Personal computers were designed to run any software, written by anyone. Indeed, many of the innovations or “killer apps” that popularized PCs came from amateur coders, not Apple or IBM. Consumers bought PCs, Zittrain recounts, not for what the machines did, but for what they might do.

The same is true of open robots. They become more valuable as use cases surface. (It can fold laundry! It can walk a dog!) That open robots are extensible or “modular” constitutes a second advantage. Versatile and useful robots are going to be expensive. Meanwhile, the technology continues to change. Let’s say there is a breakthrough in sensor technology or someone invents a new, more maneuverable gripper. The owner of a closed robot will have to wait for the next model to incorporate these technologies. The owner of an open robot can swap the sensor or gripper out. As Barbara van Schewick argues in another context, this encourages consumers to buy personal and service robots earlier in the product cycle.

The open model — best exemplified, perhaps, by the Silicon Valley robotics incubator Willow Garage — is gaining momentum. Five years ago, iRobot’s co-founder Colin Angle told The Economist that robots would be relatively dumb machines designed for a particular task. Robot vacuums will vacuum; robot pool cleaners will clean the pool. This year at the Consumer Electronics Show, the same company unveiled a robot called AVA designed to run third-party apps. Following a backlash over its copyright lawsuit, Sony released a software developer kit for AIBO, which continues to be used by classrooms and in competitions. Microsoft recently gave open robotics a boost by developing an SDK (software development kit) for its popular Kinect sensor. So far, so good.

Enter the lawyers. The trouble with open platforms is that they open the manufacturer up to a universe of potential lawsuits. If a robot is built to do anything, it can do something bad. If it can run any software, it can run buggy or malicious software. The next killer app could, well, kill someone.

Liability in a closed world is fairly straightforward. A Roomba is supposed to do one thing and do it safely. Should the Roomba cause an injury in the course of vacuuming the floor, then iRobot generally will be held liable as it built the hardware and wrote or licensed the software. If someone hacks the Roomba and uses it to reenact the video game Frogger on the streets of Austin (this really happened), then iRobot can argue product misuse.

Image courtesy Open Source Initiative (c)

But what about in an open world? Open robots have no intended use. The hardware, the operating system, and the individual software — any of which could be responsible for an accident — might each have a different author. Open source software could have many authors. But plaintiffs will always sue the deep pockets. And courts could well place the burden on the defendants to sort it out.⁴

I noted earlier that personal computers have been open from the start. They, too, have no dedicated purpose, run third-party software, and are extensible (through USB ports). But you would not think to sue Microsoft or Dell because Word froze and ate your term paper. It turns out that judges dismissed early cases involving lost or corrupted data on the basis that the volatility of computers was common knowledge. These early precedents congealed over time practically to the point of intuition. Which, I would argue, is a good thing: People might not have gone into the business of making PCs if they could get sued any time something went wrong.

But there is one, key difference between PCs and robots. The damage caused by home computers is intangible. The only casualties are bits. Courts were able to invoke doctrines such as economic loss, which provides that, in the absence of physical injury, a contracting party may recover no more than the value of the contract. Where damage from software is physical, however, when the software can touch you, lawsuits can and do gain traction. Examples include plane crashes based on navigation errors, the delivery of excessive levels of radiation in medical tests, and “sudden acceleration”—a charge respecting which it took a team of NASA scientists ten months to clear Toyota software of fault.

Open robots combine, arguably for the first time, the versatility, complexity, and collaborative ecosystem of a PC with the potential for physical damage or injury. The same norms and legal expedients do not necessarily apply. In robotics no less than in the context of computers or the Internet, the possibility that providers of a platform will be sued for what users do with their products may lead many to reconsider investing in the technology. At a minimum, robotics companies will have an incentive to pursue the slow, manageable route of closing their technology.

To recap: Robots may well be the next big thing in technology. The best way to foster innovation and to grow the consumer robotics industry is through an open model. But open robots also open robotic platform manufacturers to the potential for crippling liability for what users do with those platforms. Where do we go from here?

My proposed solution is a narrow immunity, akin to what we see in general aviation, firearms, and the Internet. In each case, Congress spotted a pattern that threatened an American industry and intervened. Congress immunized the companies that created the product for what consumers or others might do with their product.

For many of the same reasons, I believe we should consider immunizing the manufactures of open robotic platforms for what users do with them. I am talking here about a kind of Section 230 immunity for robotics. You cannot sue Facebook over a defamatory wall post. Nor can you immediately sue an Internet service for hosting copyrighted content. Analogously, if someone adds a chainsaw to their AVA⁵ or downloads the “dive-bomb” app for their AR.Drone, it should not be possible to name iRobot or Parrot as a defendant. Otherwise, why would these companies take the chance of opening their products?

One final note: It may be tempting to take a wait-and-see approach. Perhaps the fears I’ve outlined are overblown; maybe the courts will find another expedient to incentivize safety without compromising innovation. Scholars have speculated that the courts would have arrived at a Section 230-like solution for Internet content even without the statute. What’s the rush?

We risk a lot in waiting. I don’t think we want to wait to intervene until this young industry is bankrupted, as we did in the context of general aviation. (It was called the General Aviation Rehabilitation Act for a reason.) Several countries already have a head start in robotics, a higher bar to product liability litigation, or both. The risk of waiting is that, by the time we sort this out, the United States will not be a comparatively serious player in a transformative technology for the first time since the steam engine. Now is the moment to start thinking about this problem.

Thanks very much for reading. Your thoughts are warmly welcome.

This post was adapted from my recent article Open Robotics, which appears in volume 70 of Maryland Law Review and can be downloaded on SSRN. Thanks to Robert Richards and Vox PopuLII for the opportunity to share my research.

[Editor’s Note: Mr. Calo’s post has implications as well for AI and law scenarios, e.g., those involving open robots — having artificial intelligence — that engage in conduct determined by automated decisions taken using legal rules modeled in computer language.]

________________

[1] Of course, robotics incorporates and builds upon these technologies. By robotics, I mean to refer to technology that incorporates at least three elements: a sensor, and processor, and an actuator. This is a fairly common if admittedly imperfect definition.

[2] You may be thinking: we’ve been down this road. The 1980s saw a robotics craze and nothing came of it. This is not entirely true: the use of robotics for manufacturing and space exploration grew exponentially. Processors and sensors were not cheap enough to realize the same vision for personal and service robots. They are now.

[3] I draw these definitions in part from the important work of Barbara van Schewick.

[4] I realize that a plaintiff must generally show the injury to be “foreseeable.” But recall that the defendant need only foresee the category of harm, not the exact situation. Moreover, some jurisdictions shift the burden to the product liability defendant to show that the injury was not foreseeable.

[5] Thanks to Paul Ohm for this example.

M. Ryan Calo is a project director at the Stanford Center for Internet and Society. Calo co-founded the Legal Aspects of Autonomous Driving program, a unique, interdisciplinary collaboration between Stanford Law School and the School of Engineering. He is on the Program Committee for National Robotics Week and co-chairs the American Bar Association Committee on Robotics and Artificial Intelligence. Calo blogs, tweets, and publishes on the intersection of law and technology.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed.

The Free Law Reporter - Open Access to the Law and Beyond

free access to law, information retrieval, Innovation in legal technology, Public access to legal information 3 Responses »

May 252011

RIP, MIX, LEARN: FROM CASE LAW TO CASEBOOKS

Like many projects, the Free Law Reporter (FLR) started out as way to scratch an itch for ourselves. As a publisher of legal education materials and developer of legal education resources, CALI finds itself doing things with the text of the law all the time. Our open casebook project, eLangdell, is the most obvious example.

The theme of the 2006 Conference for Law School Computing was “Rip, Mix, Learn” and first introduced the idea of open access casebooks and what later became the eLangdell project. At the keynote talk I laid out a path to open access electronic casebooks using public domain case law as a starting point. On the ebook front, I was a couple of years early.

The basic idea was that casebooks were made up of cases (mostly) and that it was a fairly obvious idea to give the full text of cases to law faculty so that they could write their own casebooks and deliver them to their students electronically via the Web or as PDF files. This was before the Amazon Kindle and Apple iPad legitimized the ebook marketplace.

The devilish details involved getting our hands on the full text of cases. We did a quick-and-dirty study of the 100 top casebooks and found that there was a lot of overlap in the cases. This was not too surprising, but it meant that the universe of case law — as represented by all the cases in all the law school casebooks — was only about 5,000 cases, and that if you extended that to all the cases mentioned — not just included — in a casebook, the number was closer to 15,000. I approached the major vendors of online case databases to try to obtain unencumbered copies of these cases, but I had no luck. Although disappointing, this too is not surprising, considering that these same case law database vendors are part of larger corporations that also sell print casebooks to the law school market.

Of course, the cases themselves are public domain and anyone with a userID and password could access and download the cases I needed. But the end-user agreements that every user must click “I Agree” to, include contract language that precluded anyone from making copies of these public domain cases for anything but personal use. Contract law trumped access to the public domain materials.

Fast forward a couple of years, to the appearance of Carl Malamud’s public.resource.or g, providing tarballs of well-formatted case law every single week. Add to that the promise of re-keying a large back catalog of cases via the YesWeScan.org project (also from public.resource.org) and we could now begin to explore ideas that had been simmering on the back burner for several years.

CASE SEARCH AS EBOOK: LEAN FORWARD / LEAN BACK

One of the neat features at FreeLawReporter.org is that it allows you to convert the results of a search into a downloadable ebook in .epub format which you can read on your Apple iPad or Barnes & Noble Nook and other ereader devices. (.epub ebooks may be readable on Amazon Kindles soon.) The idea for this feature sprang from some articles I had read about how people read on the Web versus how people read books. Jakob Nielsen explains it well in a post entitled “Writing Style for Print vs. Web”:

Print publications — from newspaper articles to marketing brochures — contain linear content that’s often consumed in a more relaxed setting and manner than the solution-hunting behavior that characterizes most high-value Web use.

What does this have to do with case law and ebooks?

It’s all about what kind of reading you are doing. When you are doing research — especially online research, which involves refining your search terms, clicking through lots of links, and opening lots of browser tabs — you are “leaning forward,” actively looking for something that you plan to read in greater depth later. In the case of legal research, the results of your efforts are a collection of cases — dozens or hundreds of pages long. Once you have found the most on-point cases, you know that you need to read them deeply and carefully in order to follow and understand the arguments. This type of reading I call “leaning back,” and is more suited to the environment you create as a book reader than the one you create as a Web reader.

Turning case law searches into books seems like a natural consequence of the movement between “lean forward” Web searching and “lean back” book reading. There is a lot of anecdotal writing about this, but I am h ard-pressed to find scientific literature that is definitive. Fortunately, with FreeLawReporter.org, open source tools, and a smart developer, we can experiment and let users decide what works best for them. This is an important point that deserves some expansion.

“FREE” AS IN “FREE TO EXPERIMENT AND INNOVATE”

The primary product of the online legal database vendors is targeted primarily at big law firms. They get the big cases, have the big clients, and spend the most on legal research. As you move down the scale of firm size, you also move down in ability and willingness to pay for legal research, or ability to charge the cost of legal research back to the client. By the time you arrive at small firms and solo practitioners, the amount of time spent doing legal research is much reduced, and, in the case of purely transactional practices, legal research is done only rarely.

The use of these databases in legal education, however, is different. Legal research instructors try to give students a flavor for what using the databases in the real world will be like, but without knowing what type of law the students will end up practicing. The instruction, therefore, must be generalized. The databases are optimized for users who have almost unlimited (in time and cost) access. The databases were not designed for optimizing legal education. With the online database vendors, you get a powerful and comprehensive product, but you cannot change it to suit particular educational goals. You must adjust to it.

A database of the law should be available to the legal education community as a free, open, and customizable system that has affordances for instructors and researchers, i.e., law librarians and law faculty. We are only beginning to explore these ideas, but one analogy is that Wexis is to the Free Law Reporter as Windows is to Linux. The free and open aspect of the Free Law Reporter (FLR) will let legal research instructors, law faculty, law students, and even the public do things that are not possible within the contractually locked-down and/or digitally rights-managed systems that are designed primarily as a product for the most expensive lawyers in the marketplace.

With FLR, we can experiment with tweaking the algorithms behind the search engine to optimize for specific legal research situations. With FLR, we could create closed-universe subsets that could be used for legal research exercises or even final exams. With FLR, we could try out all sorts of things that we cannot do anywhere else.

I don’t expect FLR to be a replacement for anything else. It is a new thing that we have not seen before — a playground, a workshop, a research project, and a tool shed for legal educators. It can only grow in value and increase in quality, but we need help.

WHY “REPORTER”?

The choice of the name “Free Law Reporter” was deliberate. The “free” refers to both the cost and the open source aspects of the project, in the Free Software Foundation tradition. Richard Stallman has often expounded on the importance of access to the code you run on your computer; so too should every citizen have access to the laws of the land. In the past, case law was outsourced by the government to vendors who created the original Reporter system, which was made widely available to the public via state, county, and academic law libraries. Many libraries have, of necessity, cut back on their print subscriptions, reduced their hours of access, reduced their staff, or closed altogether, but the real loss of access to the public started when the law transitioned to online legal databases.

Now that online access to the law is the new normal, the disintermediation of law libraries is nearly complete, but the courts and governments have not kept up with the equal access during the transition. In the legal publishing lifecycle, there is an opportunity to add value, between the generation of the raw data of law, and the fee-based publication of law by online database vendors. FLR, with the help of law librarians, can seize that opportunity. This is not just a value proposition respecting public access to the law. Academic law libraries should have free and open access to the law, access that allows them to define and construct the educational environment for law students.

I am not sure whether the Free Law Reporter (FLR) can grow into what I envision. We are only at the beginning, but I believe it’s about time we got started. I do know that we cannot succeed without the assistance and participation of the law librarian community. Right now, this assistance is mostly provided by law schools’ continued annual CALI membership.

We are working to make participation in the growth of FLR possible, by finding ways to tap the cognitive surplus of law librarians, students, faculty, and lawyers. The key challenge, I believe, is the construction of a participation framework where many small contributions can be aggregated into something of great, cumulative value. Wikipedia, Linux, and many other open source projects are exemplars from which we can take cues. There is so much to do and I am excited by the technical and organizational challenges that FLR presents. Expect to hear more from us about this project as we get our legs underneath us.

John Mayer is the Executive Director of the Center for Computer-Assisted Legal Instruction (CALI), a 501(c)(3) consortium of over 200 US law schools. He has a BS in Computer Science from Northwestern University and an MSCS from the Illinois Institute of Technology. He can reached at jmayer@cali.org or @johnpmayer.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed.

The Electronic World Treaty Index

Applications, information retrieval, Legal metadata 2 Responses »

May 062011

“International Law is to law what Professional Wrestling is to wrestling,” or so claimed the commentator Stephen Budiansky. The political scientist George Downs and his co-authors once claimed that “most treaties require states to make only modest departures from what they would have done in the absence of an agreement.” In other words, there exists a long-standing debate in which some scholars view international law as virtually meaningless or as mere “scraps of paper,” to borrow the oft-cited phrase attributed to Bismarck.

Is this perception true? Presently, we have no way of systematically answering this and related questions. Why? Because scholars do not possess the population of international treaties and, without this population, it is not possible to draw a truly representative sample on which to study. This theme is echoed in the recent working paper by Miles & Posner (2008) where the authors note: “[M]any empirical regularities of treaty-making remain almost entirely unknown. Basic facts, such as which types of treaties countries most commonly enter and which types of countries engage in the most treaty-making –- let alone what are the consequences of treatymaking –- have not been established.”

Overcoming these limitations is the goal of the Electronic World Treaty Index (www.worldtreatyindex.com).

Existing Treaty Databases

Scholars have often sliced off and studied portions of the body of international legal agreements. The Trade Agreement Dataset (discussed here) lists all trade agreements involving reciprocal concessions on tariffs or tariff-equivalents (such as import quotas) from 1815 to 1914. The Continent of International Law (COIL) database, first introduced in Koremenos (2005), draws a sample of treaties from the list of treaties reported in the United Nations Treaty Series (UNTS) with the goal of coding these treaties’ provisions. The Alliance Treaty Obligations and Provisions (ATOP) dataset compiled by Leeds, Ritter, Mitchell, and Long (2002), is a comprehensive dataset of all known military alliance treaties formed between 1815 and the present. The Multilateral Agreement and Treaty Record Set (MARTS), developed by Denemark and Hoffman, includes 6976 multilateral treaties signed between 1595 and 1995.

Though these projects have coded the makeup of various treaties, they are of limited scope. They either focus on a specific treaty topic, contain a random (or not so random) sub-sample of specific treaty categories, or limit their compilation to just multilateral agreements. Truly gaining a perspective on the development and dynamics of global cooperation via treaty making requires a broader and more comprehensive treaty compilation. The World Treaty Index, as first developed by Rohn (1983), avoids these limitations.

Rohn’s World Treaty Index (WTI)

In the 1960s, Peter Rohn of the University of Washington began a National Science Foundation-funded project of developing a comprehensive database of metadata describing international treaties. The first edition of the World Treaty Index was published in 1974, with a second edition published in 1983 (and reprinted in 1997). Though the effort originally focused on just coding registered treaties found in the League of Nations Treaty Series (LTS) and the United Nations Treaty Series (UNTS), Rohn soon expanded the project to include thousands of unregistered treaties. Forty percent of the treaties in the 1974 edition, and forty-five percent of the treaties in the 1983 edition, were unregistered treaties. In total, the first edition of the WTI, which covered the 1920 to 1970 time period, included metadata for 4,834 treaties from the LTS; 9,832 treaties from the UNTS; and 7,000 treaties identified through national treaty lists and collections. The second edition incorporated metadata for treaties from 1900 to 1920, newly discovered agreements from 1920 to 1970, and treaties from 1970 through 1979 for a total of 44,000 treaties. The inclusion of metadata for such unregistered treaties justifies characterizing the World Treaty Index as a valuable, if not definitive list of international treaties.

Updating and Digitizing the WTI

Since the publication of these volumes, the WTI has been moved to electronic format and the coding of treaties has continued. However, as described in Pearson (2001), the coding of treaties since 1990 has been limited to the UNTS and, starting in the late 1980s, the WTI also stopped inputting information about treaty annexes.

Starting in 2010, the World Treaty Index entered a new phase with a dedicated URL (http://worldtreatyindex.com/) and a complete site redesign. The site is now maintained by Paul Poast, Michael Bommarito, and Daniel Martin Katz. Under their stewardship, the WTI has undergone several updates. First, metadata on all pre-1945 treaties was added to the electronic WTI. Second, treaties for 1998 and 1999 were added. Third, the multilateral treaties were added. When complete, the WTI will provide a comprehensive database of metadata for over 75,000 treaties formed during the twentieth century.

Using the World Treaty Index Website

A user arriving at the World Treaty Index homepage (www.worldtreatyindex.com) will encounter the searchable interface pictured below:

The user can choose to search treaties by country name, by the widely used Correlates of War treaty code (www.correlatesofwar.org), by a specific topic (see below), or by signing date.

For example, one could query for all treaties signed by the United States between 1970 and 1980.

Once the user selects the desired search options, a dedicated page for the query will open. This page provides three pieces of information. First, the top of the page provides summary statistics regarding the search. It lists the total number of treaties that meet the search criteria and provides a visual illustration of the distribution of the requested treaties over the requested time period. This visual illustration could be useful for researchers wishing to identify trends. For example, the figure shows a high level of treaty signings in the early 1970s relative to the late 1970s. Exploring this trend may be of interest to the user.

Second, there is an option that allows the user to download metadata for the requested treaties as a .csv file. We use the .csv file type as it is supported by various software packages including Excel, R, Stata, SPSS, and SAS.

Third, the page provides the WTI entry for each treaty meeting the search criteria. Each treaty receives one entry in the WTI, and each entry records information about the treaty in several fields. The first field is the Treaty Serial Number, which begins with a number indicating the treaty source, followed by a 0, and then the treaty code found in that particular source document. For instance, if a treaty is drawn from the UNTS, the serial number begins with the number 2 (indicating UNTS), then a 0, and then the UNTS code for that treaty. The second field is the Primary Source Document, which simply provides an abbreviation of the source document from which the treaty is drawn. For example, the United Nations Treaty Series code is UNTS. The third and fourth fields indicate the volume and page number of the Primary Source Document in which the treaty is found. For example, if the treaty is drawn from the UNTS, then the volume field records the UNTS volume number, and the page field records the page of that particular volume.

The next two fields record the parties of the treaty if the treaty is bilateral or unilateral. We are working on incorporating multilateral agreements into a single query. In our current database schema, we separate these queries from queries for bilateral treaties by allowing for bulk download of metadata for all multilateral agreements. (Click here for the page offering bulk access to metadata for multilateral agreements.) Following the results presented in Poast (2010), we would encourage scholars to carefully consider how best to combine datasets of metadata for multilateral and bilateral treaties.

Fields eight, nine, and ten record, respectively, the date the treaty was signed, the date the treaty went into force, and the date it was registered with the United Nations (if it is a UNTS treaty).

The final three fields record information on the treaty content itself. The topic field records a code for each treaty indicating its substantive issue category (the complete topic list is available on the website). Rohn had developed 90 different treaty topics, over 9 broad categories. The broad categories are: Diplomacy (primarily security issues), Welfare (primarily health and labor standards), Economics (primarily trade and financial cooperation), Aid (primarily humanitarian and development aid), Transportation (primarily addressing rights to air space or water ways), Culture (primarily educational and scientific collaboration), Resources (primarily natural resource management), and Administration (primarily consulate matters or visas).

The title field indicates the type of agreement, such as convention, protocol, etc. (A list of the treaty title categories used by the WTI are also available on the website). Finally, the headnote field records the title of the treaty, so as to quickly provide the researcher with specific details on that particular treaty’s content.

Thus, for example, the bilateral treaty between the United States and Egypt signed on November 3, 1949 has a title of “agreement”, a headnote of “Financing Educational Exchange Program”, and a topic of 4EDUC.

For additional information on these fields please visit: http://worldtreatyindex.com/fields.html

Coming Soon

Our broad goal is provide support for the rigorous exploration of cooperation and conflict in the international system. In that vein, we are currently exploring a variety additional features that we believe would help aid end users:

(1) Updating the WTI for coverage through 2011
(2) Adding information on treaty terminations and renegotiations
(3) Developing a better interface for Multilateral Agreements
(4) Developing direct access to treaty text (via Hein Online or other third-party providers)

Paul Poast is currently a Ph.D. Candidate in Political Science at the University of Michigan. In the Fall 2011, he will be an Assistant Professor of Political Science at Rutgers University.

Daniel Martin Katz is currently a Ph.D. Candidate in Political Science and Public Policy at the University of Michigan. He is also a Fellow in Empirical Legal Studies at the University of Michigan Law School. In the Fall 2011, he will be an Assistant Professor of Law at the Michigan State University College of Law.

Michael J. Bommarito II is currently a Ph.D. Pre-Candidate in Political Science at the University of Michigan. He also has a Masters in Financial Engineering from the University of Michigan.

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

Building Sustainable LIIs - or Free Access to Law as Seen Through the Eyes of a Newbie

africa, free access to law, Public access to legal information No Responses »

May 032011

How are free access to law (FAL) services being used throughout the world? And how can these services be made sustainable? This post describes a research effort devoted to answering those two questions. The effort is funded by IDRC, and is being conducted by the Chair on Legal Information at the University of Montreal.

[Lexum — the Canadian legal technology firm that created and administers CanLII, the Canadian Legal Information Institute — began its existence as LexUM, a research unit of the University of Montreal. In 2009, LexUM was divided into two parts. One part, called Lexum, became an independent company, while the second part, called the Chair on Legal Information, remained with the University of Montreal. For purposes of simplicity, “LexUM” and “Lexum” will both be referred to in this post as “Lexum.”]

This post also describes my personal experience of participating in this research and learning about free access to law.

Project Overview

At the Chair on Legal Information at the University of Montreal, with a team of researchers situated all over the world, we’ve been working on two on-going research projects since 2009: (1) A review of legal information in four West African countries, and (2) a global study on the sustainability of Free Access to Law initiatives.

In conducting these research projects over more than two years, we have interviewed lawyers, magistrates, judges, law students, public servants, law librarians, and anyone else we could find who could talk about legal information in their countries.

Here is how I came to be involved in this effort.

Being Introduced to Free Access to Law

October 2009: a 6.8-magnitude earthquake hits Indonesia; U.S. President Barack Obama receives the Nobel Peace Prize; we’re in the midst of the global financial crisis; and unbeknownst to me, I’m about to discover a world I have never heard of before: the world of Free Access to Law (FAL).

The idea of Free Access to Law, although it has been around for nearly 20 years in Canada, was entirely new to me in October 2009. Prior to that, I hadn’t worked in the field of law, although I had spent years in its neighbouring field, political science, and worked for a number of groups and organisations involved in issues concerning human rights and social justice.

A fairly simple concept it seemed to me, this FAL creature. How much could there be to know about putting the law on the Internet? Through our research, I was to find that FAL is a very complex phenomenon — a world of knowledge and expertise, questions and debates, values and principles; and a movement in which hundreds upon hundreds of individuals from all around the globe are active — and that many factors influence the effectiveness and sustainability of FAL services.

The First Study: The Use of Free Access to Law Services in West Africa

For the first study, our purpose was to find out how lawyers were accessing and using legal information in our subject countries: Burkina Faso, Niger, Senegal, and Togo.

The context for this study was the development of free access to law services in these countries. In the first half of the 2000s, free access to law (FAL) initiatives for the countries of Burkina Faso and Niger — JuriBurkina and JuriNiger, respectively — were launched with the coordination of Lexum. Once JuriBurkina and JuriNiger had begun operations, efforts were soon in place to develop similar sites in Senegal and in Togo. In Senegal, after expressing initial enthusiasm for the idea, the Bar eventually lost interest in the project and declined to cooperate in moving the project forward. In Togo, the Bar expressed its interest in the project a little late, so Lexum included them in a review of legal information project, while seeking their support for FAL efforts at the same time

In our first study, we sought answers to the following questions: What kind of information did lawyers in these countries need, in what format, how often, and for what purpose? How had these FAL Websites changed the way lawyers in these countries do their job?

Here are the key findings of the first study. First, many legal professionals in these countries knew little about the FAL sites’ existence, let alone their purpose. Second, JuriBurkina and JuriNiger were found to have had a limited impact on the way the lawyers who are their target audience conduct their research, mostly because the lawyers either didn’t know about the sites or didn’t find what they were looking for on the sites.

The legal professionals we met during our research were not talking about how they are and have been using the sites, nor how free access to legal information online has changed their research habits. Rather, we were being told about the potential of the sites, and what is likely to change -– and this only in the instances in which the respondent had ever heard of or used either JuriBurkina or JuriNiger.

Third, the content of the FAL sites in these countries was very limited. These content limitations appeared to affect users’ perceptions of the relevance of the sites. When we examine the sites, we see little in the way of updates and few documents. JuriBurkina, hosted locally, was also down on a regular basis until Lexum brought it back on its servers, where it’s been available ever since.

Fourth, contextual factors contributed significantly to these content limitations. In Burkina Faso, Lexum and the local Bar were hoping to launch an all-inclusive legal information portal for the country, where users could access statutes, statutory material, case law, and eventually secondary material as well. Yet restrictions on access to legislative content led to the launch of a site containing mostly case law — in a civil law country. In Niger, access to judgments was greatly limited following the 2010 coup. With a military regime in place, data sources were less than keen on handing over decisions.

Fifth, differential access to technology may have affected the perceived usefulness of the FAL services. Both the lawyers and law students we met in West Africa have greater access to mobile phones (that lack Internet access) than they do to computers with Web access, and the West African FAL sites are available only via the Web.

The Second Study: The Sustainability of Free Access to Law Services

Our second, global study is known as the “Free Access to Law – Is it Here to Stay?” research project. [Editor’s Note: The first report related to this study is available here.] With partners in Asia, Southern Africa, and West Africa, we have attempted to evaluate how we could ensure that sites providing legal information for free to the public can continue to do so in the long term. We were interested not just in funding models, but also in organizational models, taking into consideration variables related to political, social, and technological contexts. We asked: Can a strong team of dedicated individuals, with know-how and funding, build sustainable FAL initiatives?

For this second project, too, we went around interviewing the usual suspects — users and makers of freely accessible legal information — in Burkina Faso, Niger, Mali, India, Indonesia, Hong Kong, the Philippines, Uganda, Kenya, and South Africa. We asked the makers of FAL such questions as: How were they running their sites, coping with limited resources, deciding on which projects to undertake, and managing relationships with data sources?

Here are some key findings of this study. First, contextual factors, particularly political and technological, are critical to an FAL initiative’s capacity to ensure sustainability. Without the participation of those who make the law, be it legislative or case law, it is difficult for an FAL initiative to fulfill its mission.

Technological contextual factors are of particular importance respecting the sustainability of FAL initiatives. Legal Information Institutes have elected the Web as the best way to offer public and free access to legal information: The Web is relatively cheap, and reaches unparalleled numbers of users instantaneously. But easy and inexpensive Internet access — unfortunately, like many things in this world — is not a universal fact of life. Although perhaps one of the most democratic forums of our time, the Web is still far from being available in most households around the globe. [Editor’s Note: The ITU’s The World in 2010 pamphlet provides recent data on Internet use and access in developing countries.]

Second, respecting securing user buy-in to an FAL site, we found that the key is to ensure that the information published is highly relevant: that it is the information most needed by the site’s users. If FAL is to continue to play the pivotal role it has had in defining how users access legal information, sustainability is going to depend on our capacity to adapt, such that we provide a service needed by specific groups of users operating in specific contexts.

Common Findings of Both Studies

The findings of the studies actually coincide in more than one way. The first concerns the importance to users of the perceived relevance of information available from FAL services. This may seem like an obvious conclusion, but it was not expressly stated by our respondents, and had to be inferred from our data. The users we met had a tendency to speak of the “comprehensiveness” of collections as being one of the primary factors determining whether they would adopt an information source for their professional needs. A strong majority also said that before searching online, they would refer to their firm’s private collection, to their national archives, or to their Bar’s library. But their firm’s private collections were far from being “comprehensive.” What those collections were, though, was targeted, and focused on the lawyers’ specific informational needs.

The second common finding concerns the importance of contextual factors to the sustainability and perceived usefulness of FAL sites. Many free access to law initiatives are faced with limited access to technological, human, and financial resources. For initiatives working under such constraints, carefully choosing which information to prioritize for publication is essential. Yet, as noted above, our research suggests that the information that is published must be perceived as highly relevant by the users of the FAL service, if users are to “buy-in” to the service for the long term and integrate the service into their research practices.

In addition, the contextual factor of technology seems to affect both the sustainability of FAL sites and users’ perceptions of the usefulness of those sites. The evidence from West Africa suggests that the inability of lawyers and law students to access FAL sites via mobile phones may have contributed to users’ perceptions that the sites lacked relevant information. Respecting sustainability, the persistence of low levels of Internet access in developing countries poses a possible obstacle to widespread public buy-in to Web-based FAL services over the long term.

Issues Needing Further Research

In addition to the issues raised by the findings discussed above, our research on the use and sustainability of free access to law services has also highlighted additional issues that warrant further study. The first concerns justice and the rule of law. Free access to law, as a movement, gives itself the mandate to reinforce the rule of law. But in societies where a great social distance divides those who produce the law and those governed by it, we may need to go beyond the concept of law and start thinking about justice.

The second concerns the role of law in highly unequal societies. What is the role of a free access to law initiative in a context in which the law and legal information are not considered to belong to the public? In which legal information — written in a language not spoken by the majority of the population — is effectively the property of the elite? In which the law in force is a tool of oppression and segregation?

The third concerns access to technology and the digital divide. Limitations on Internet access must be taken into consideration not only respecting sustainability and users’ perceptions of the relevance of FAL services, but also to insure the coherency of FAL’s mission to democratize access to legal information. After over a decade of free access to law around the world, we must never stop thinking about what’s next and how we can best ensure open access.

Reflections and Conclusion

April 2011: I’ve now worked on IDRC-funded free access to law projects with Lexum and the Chair on Legal Information at the University of Montreal for just less than two years. When I began this work in the fall of 2009, free access to law seemed to me to be a relatively “simple” concept. Now, after eighteen months of research, I’ve come to understand the complexity and large scope of free access to law: that it involves hundreds of professionals working on six continents; that its success and sustainability are influenced by numerous technological, political, and social factors; and that its value depends in large part on cultivating relationships with users in their particular social and cultural contexts.

Keep an eye out for our case studies coming out this summer—but to sum things up for now, it would be simply that, like most things in the social sciences, one size does not fit all.

[Editor’s Note: For an earlier commentary on the sustainability of legal information institutes, please see Mariya Badeva-Bright’s VoxPopuLII post, Is Free Access to Law here to stay?]

[Editor’s Note: The original version of this post contained an error. The original version of the post stated that the studies described in the post are being conducted by Lexum and the Chair in Legal Information of the University of Montreal. That information is incorrect. The studies described in the post are being conducted solely by the Chair in Legal Information of the University of Montreal. Lexum has no role in the studies. We regret the error. The post has been corrected as of 5 May 2011.]

Isabelle Moncion is a research assistant at the Chair in Legal Information of the University of Montreal, and a project manager with Lexum. She holds an MA in political science with a specialisation in international development from the University of Quebec in Montreal, and a B.Sc. in political science and communications from the University of Ottawa.

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

Collaborative, Open Democracy with LexPop

Citizen lawmaking, Citizen participation in lawmaking, Crowdsourcing and free access to law, Crowdsourcing and legal information systems, edemocracy, egovernment, Electronic government, elegislation, eparticipation, Web 2.0 and law, Wikis and law 2 Responses »

Apr 222011

Raise your hand if you’ve heard (or said) a variation of one of these tired truisms: “Politics is dominated by lobbyists and spending.” “Policy making has degenerated into a glorified yelling match.” “Our country has never been more polarized.” “Today’s online communities foster echo chambers of the like-minded rather than fora for discussion.”

Is your hand raised? Because ours certainly are.

The only thing anyone can seem to agree on today is that the current U.S. political system is broken. We’re mired in a confluence of corporate spending, ugly discourse, and voter voicelessness.

LexPop provides an open public platform for tackling these problems.

Meet LexPop

LexPop allows participants to collaborate in the creation of legislative bills — bills that are later introduced by actual legislators. At its most basic, LexPop is a Wikipedia for creating public policy. (There’s a lot more to it than that, as we’ll explain below.) In our first project, Massachusetts Representative Tom Sannicandro (D-Ashland) — one of those actual legislators we’re talking about — has agreed to introduce a net neutrality bill created on LexPop.

LexPop has two primary goals. Our first goal is to give the public a voice. We hope to provide a space for ordinary people (i.e., people who can’t afford to hire lobbyists) to contribute substantively to public policy — to give their best ideas a fair hearing.

As you know, lobbyists write the bulk of the legislation coming out of our various legislatures. LexPop provides a counterpoint to the current model — a way for the public to provide legislators with voter-created model legislation. A legitimate, 21st-century democracy will invite the public into meaningful collaboration, and LexPop is part of the march in that direction.

Our second goal is to determine the best way to achieve the first. That is, a compelling movement is attempting to take governance into the 21st century, and organizations like PopVox and OpenCongress are doing great work. Several organizations and initiatives, including a government-sponsored effort in Brazil, are trying to make it possible for citizens to help write legislation. But at this point, nobody knows the best way to make the co-creation of laws a reality. Our work will contribute to figuring out what’s possible, what works, and what doesn’t.

How LexPop works

There are two ways to use LexPop. Our primary focus is on Policy Drives — where legislators pledge to introduce bills written on the site. Policy Drives are somewhat analogous to what goes on at Wikipedia, but LexPop provides more structure through the use of three specific phases:

Phase 1: Initial discussion, debate, argument, and research;
Phase 2: Outlining the bill in plain English (for those who aren’t regular readers of Vox PopuLII); and
Phase 3: Transforming the ‘plain English’ outline into legislative text.

We’re currently in the discussion phase of our first Policy Drive, devoted to the net neutrality bill Rep. Sannicandro has agreed to introduce.

A second option on LexPop is working on a “WikiBill.” WikiBills are written via the familiar, wide-open wiki model, and they offer a spot for the public to create model legislation on their own, without the three-phase structure of Policy Drives, and without a legislator-sponsor. WikiBill creators collaborate through a free-for-all process, very similar to Wikipedia — start from scratch and cobble the bill together. There’s no end to the WikiBill process, so participants can create a bill, submit it to their representatives, modify it, and submit it again.

Yeah, sounds great. But can this really work?

It’s usually at this point in the conversation that questions start coming up. LexPop, and similar projects, are largely operating in uncharted waters, and so there’s good reason to think the project sounds ambitious, perhaps even crazy. Below are a few of the questions we’re asked most often, along with our preliminary answers.

Will anyone contribute to this sort of effort?
We think so. (Obviously.)

Here’s why: Ordinary people collaborate on difficult projects online — especially online — often with great success. Take Linux, the open source operating system. The vast majority of people who work on Linux aren’t paid; they’ve incrementally created it in their spare time.

Are you reading this blog on Firefox? Well, guess what? Your browser was built almost entirely by volunteers.

At LexPop, we’re asking people who are passionate about certain issues to give some of their free time to developing better policy, in the same way engineers have asked them to help develop software. Sure, it will be complicated, but people are smart, and given the right opportunity and tools, they’ll be able to (once again) create something extraordinary.

Politics is too controversial — How can you expect people to come to consensus on one answer?
To answer this question, we like to look to Jesus — the “Jesus” page on Wikipedia, that is.

There are plenty of controversial topics addressed on Wikipedia, but it’s the pages for these topics that are often the most accurate. Wikipedians who edit the Jesus page know the topic is controversial, so they back up what they say with facts — otherwise, the crowd of users won’t allow it. Over time, the Jesus page has turned into something that most users are pretty happy about. And this is the similarity between LexPop and Wikipedia: They’re both about collaboratively writing something that isn’t perfect in the eyes of any one participant, but is better than the alternative.

Fine, but isn’t there a better model than a wiki?
This is one of the things we’re trying to figure out, and one of the things with which we need your help. We’re starting with a modified wiki (the three phases), but as we learn, we’ll adapt. A wiki allows a certain type of collaboration (the kind found on Wikipedia), but it may not be the best way to collaborate. Is the three-step process we’re using the right model, or should the phases be combined? With your help, we’ll find out — and we promise to share our findings.

Will legislation created on LexPop be representative?
We don’t claim that bills made on LexPop will be perfectly representative, and we’re not trying to make representative democracy obsolete. After a bill is written on the site, it will still have to go through the same bill-into-law process as every other piece of legislation.

But LexPop will certainly be more representative than the system we have now. With LexPop, non-profit organizations with valuable knowledge of an issue, passionate experts well-versed on a topic, and regular voters (Joes the Plumber, if you will) will no longer be shut out of the process. Right now, we live in a world where participation too often means a voter pours out her heart in a letter and receives a form response that the intended recipient didn’t write, read, or even sign. Our system for adding more voices to lawmaking may not be perfect, but it will be less imperfect than the current political system.

LexPop provides a first draft of legislation that’s written by people, not by lobbyists. This is our value-add; we’re opening a new channel for public participation, and taking a step toward a more legitimate and deliberative democracy.

But we need your help

And we need it big time. For a project like this to work, we need participants.

If you’re interested in collaborative democracy, please get involved in the conversation. You’ll be helping even if you post only one comment. Even if you aren’t particularly interested in net neutrality, we encourage you to learn more about it on the site, and then make sure you come back when we have a Policy Drive on your favorite issue.

Also, we’d be grateful if you spread the word about our site. Like us on Facebook, Tweet about LexPop (@LexPopOrg), blog about us, or, even better, let us write a guest blog post on your site (Thanks, VoxPopuLII !).

We’d also love for you to tell us what we’re doing wrong. LexPop is perfect in neither theory nor practice. So please help us make LexPop and, ultimately, deliberative democracy better with your feedback. We have a Google Group for discussion about LexPop, or you can contact us through the website.

Coda

LexPop is a platform for public engagement and empowerment. LexPop provides a space for discussion-driven public policy and a stronger, more agile democracy. LexPop is about more voices. Add yours.

Matt Baca is a joint J.D./M.P.A. student at New York University School of Law and the Harvard Kennedy School. He’s interested law, public policy, government 2.0, and the Rockies (team and mountains).

Olin Parker is a Master’s in Public Policy student at the Harvard Kennedy School. His interests include disability policy, education reform, the states of Kansas and Louisiana, and his 17 month-old daughter.

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

Indian Kanoon - The Genesis And The Legal Thirst

Demand for free access to law, Demand for public access to legal information, free access to law, india, information retrieval, Innovation in legal technology, Public access to legal information, Relevance ranking in legal information retrieval 7 Responses »

Apr 222011

Indian Kanoon is a free search engine for Indian law, providing access to more than 1.4 million central laws, and judgments from The Supreme Court of India, 24 High Courts, 17 law tribunals, constituent assembly debates, law commission reports, and a few law journals.

The development of Indian Kanoon began in the summer of 2007 and was publicly announced on 4 January 2008. Developing this service was a part-time project when I was working towards my doctorate degree in Computer Science at the University of Michigan under of guidance of Professor Farnam Jahanian of Arbor Networks fame. My work on Indian Kanoon continues to be a part-time affair because of my full-time job at Yahoo! India (Bangalore). Keep in mind, however, that I don’t have a law background, nor am I an expert on information retrieval. My PhD thesis is entitled Context-Aware Network Security.

The Genesis

Indian Kanoon was started as a result of my curiosity about publicly available law data. In a blog article, Indian Kanoon – The road so far and the road ahead, written a year after the launch of Indian Kanoon, I explained how the project was started, how it ran during the first year, and the promises for the next year.

When I was considering starting Indian Kanoon, the idea of free Indian law search was not new. Prashant Iyengar, a law student from NALSAR Hyderabad, faced the same problem. The law data was available but the search tools were far from satisfactory. So he started OpenJudis to provide search tools for Indian law data that were publicly available. He traces the availability of government data and the development of OpenJudis in detail in his VoxPopuLII post, Confessions of a Legal Info-holic.

Prashant Iyengar traces the genesis, successes, and impacts of Indian Kanoon in a more detailed fashion in his 2010 report, Free Access to Law in India – Is it Here to Stay?

The Goal

I have to make it clear that Indian Kanoon was started in a very informal fashion; the goals of Indian Kanoon were not well established at the outset. The broadest goal for the project came to me while I was writing the “About” page of Indian Kanoon. From this point on, the goals for Indian Kanoon started to crystallize. The second paragraph of this page summed it up as follows:

“Even when laws empower citizens in a large number of ways, a significant fraction of the population is completely ignorant of their rights and privileges. As a result, common people are afraid of going to police and rarely go to court to seek justice. People continue to live under fear of unknown laws and a corrupt police.”

The Legal Thirst

During the first year after the launch of Indian Kanoon, one constant doubt that lingered in the minds of everyone familiar with the project (including me) concerned just how many people really needed a tool like Indian Kanoon. After all, this was a very specialized tool, which quite possibly would be useful only to lawyers or law students. But what constantly surprises me is the increasing number of users of the Website. Indian Kanoon now has roughly half a million users per month, and the number keeps growing.

The obvious question is: Why is this legal thirst — this desire for access to full text of the law — arising in India now? I can think of umpteen reasons, such as an increase in the number of Indian citizens getting on the Internet, which is proving to be a better access medium than libraries; or that the general media awareness of law, or the spread of blogging culture, is fueling this desire.

On further reflection, I think there are two main drivers of this thirst for legal information. The first one is the resources now available for free and open access to law. Until very recently, most law resources in India were provided by libraries or Websites that charged a significant amount of money. In effect, they prohibited access to a significant portion of the population that wanted to look into legal issues. The average time spent per page on the Indian Kanoon Website is six minutes; this shows that most users actually read the legal text, and apparently find it easier to understand than they had previously expected. (This is precisely what I discovered when I began to read legal texts on a regular basis.)

The spread of the Internet, considered by itself, is not an important reason for the current thirst for law in India, in my view. Subscription-based legal Websites have been around for a while in India, but because of the pay-walls that they erected, none of them has been able to generate a strong user base. While the open nature of the Internet made it easy to compete against these providers, the availability of legal information free of charge — not just availability of the Internet — has removed huge barriers, both to start ups, and to access by the public.

The second major reason for this thirst for legal information — and for the traffic growth to Indian Kanoon — lies in technological advancement. Government websites and even private legal information providers in India are, generally, quite technologically deficient. To provide access to law documents, these providers typically have offered interfaces that are mere replicas of the library world. For example, our Supreme Court website allows searching for judgments by petitioner, respondent, case number, etc. While lawyers are often accustomed to using these interfaces, and of course understand these technical legal terms, requiring prior knowledge of this kind of technical legal information as a prerequisite for performing a search raises a big barrier to access by common people. Further, the free-text search engines provided by these Websites have no notion of relevance. So while the technology world has significantly advanced in the areas of text search and relevance, government-based — and, to some extent, private, fee-based — legal resources in India have remained tied to stone-age technology.

Better Technology Improves Access

Allowing users to try and test any search terms that they have in mind, and providing a relevant set of links in response to their queries, significantly reduces the need for users to understand technical legal information as a prerequisite for reading and comprehending the law of the land. So, overall, I think advances in technology, some of which have been introduced by Indian Kanoon, are responsible for fostering a desire to read the law, and for affording more people access to the legal resources of India.

The Road Ahead

Considering, however, that fear of unknown laws remains in the minds of large numbers of the Indian people, now is not the time to gloat over the initial success of IndianKanoon. The task of Indian Kanoon is far from complete, and certainly more needs to be done to make searching for legal information by ordinary people easy and effective.

Sushant Sinha runs the search engine Indian Kanoon and currently works on the document processing team for Yahoo! India. Earlier he earned his PhD in Computer Science from the University of Michigan under the guidance of Professor Farnam Jahanian. He received his bachelor and masters degrees in computer science from IIT Madras, Chennai and was born and brought up in Jamshedpur, India. He was recently named one of “18 Young Innovators under 35 in India” by MIT’s Technology Review India.

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

On a Legal Framework in a Virtual World: Lessons from the VirtualLife Project

Constitutions in virtual worlds, ecommerce, econtracts, Electronic commerce, Electronic contracts, Electronic voting, European Union, Law in virtual worlds, Legal identity in virtual worlds, Online dispute resolution, Peer to peer architecture in legal information systems, Trust in virtual worlds, Virtual worlds and law 1 Response »

Mar 012011

In this article, I reflect on the legal frameworks that affect virtual worlds. In particular, I focus on the use of non-game three-dimensional online virtual worlds such as Second Life, for purposes of education and training. These worlds are also known as “serious” games. Pictured below is an example of such a “serious” game: a possible learning support scenario — interacting with a complex 3D geometric object, in the context of a geometry lesson within a virtual world.

Interacting with a complex 3D object, a dodecahedron, in the context of a geometry lesson within a virtual world

The European Union Information and Communication Technologies Seventh Framework Programme, FP7 ICT, has funded a VirtualLife consortium of ten partners that plans to create a secure and legally ruled virtual world platform. The legal framework they are constructing includes a novel, editable, and enforceable Virtual Constitution. This article describes the legal framework of VirtualLife, using material from several VirtualLife project deliverables: a presentation and publications, primarily Bogdanov et al. (2009), and Čyras & Lachmayer (2010).

The problem of law enforcement in virtual worlds

The rules of games, such as chess, can be programmed. However, this is not the case for legal rules contained in a code of conduct in a virtual constitution. Moreover, in a code of conduct for a virtual world, we supplement the normal concept of “persons” who are subject to law, with the concept of “avatars” — that is, the virtual persons used to navigate a virtual world. This variety of rules, which applies to avatars, is called “virtual law” (see Raph Koster). A sample “toy” rule, such as “Keep off the grass,” illustrates constraints on avatar conduct, constraints aimed primarily at preventing unwanted behaviour.

Various methods of norm enforcement by computers are being investigated worldwide (see, e.g., Vázquez-Salceda et al. (2008)). Lawrence Lessig‘s Code and Other Laws of Cyberspace (1999, updated in 2005) noted that cyberspace would be controlled — or not — depending upon the architecture, or “code,” of that space.

A general frame of a virtual world

A general sketch of virtual world legal issues, as described by legal scholar Friedrich Lachmayer, is outlined below. It differs from the view of software engineers. Many legal rules in a virtual world are described informally. The entities of major importance are avatar actions and the rules that regulate their behaviour. Here is a conceptualisation of the “theatre” depicting the elements of a virtual world and the principles of construction of its legal framework:

A conceptualization - the elements of a virtual world and principles of construction of a legal framework

Rules can form different normative systems within a virtual world, as well as a regime, or paradigm, of a virtual world. The rules in a virtual world can have different modes or degrees of effectiveness, such as “barrier,” “occasional,” “step-by-step,” etc. Moreover, these rules can be divided into different classes, such as technical rules, legal rules, reputation rules, energy rules, and professional rules:

Technical rules establish factual limitations. Real world examples include fencing in a plot of grass, locking a door to forbid entry, and an automatic teller machine’s refusing to dispense money unless a PIN code is provided. Violations of technical rules are impossible: there is no possibility of violating a technical rule unless you break the artifact completely (e.g., by cutting the fence, or breaking down the door). Hence technical rules are strictly enforceable. They are based on natural necessity and can be formalised as: “If P then Q.” They do not have modes or degrees of effectiveness such as “obligatory,” “permitted,” and “forbidden.”

Legal rules. Their nature is that they can be violated. For example, you can jaywalk, but you risk being sanctioned. These laws are enforced by an authority such as the police, or peacekeepers in a virtual world. Legal rules are not strictly enforceable, and their enforcement may be subject to the so-called “spirit,” or purpose, of the law.

Legal rules are necessary, because it is impossible to implement normative regulation by means of technical rules alone. Consider a norm providing that indecent content is prohibited in the virtual world. Such an abstract norm can hardly be implemented by automatic checking. A naked body should not be automatically treated as indecent content, because it may be a picture of a statue in a virtual museum.

Energy rules prohibit certain kinds of behaviour. If energy rules are violated, the violator’s “energy points” are decreased. Such sanctions are 100% effective.

This can be illustrated by the avatar identity card in VirtualLife. Each avatar has an ID card, which contains information about the avatar’s virtual and real-life identities. The ID card includes simple indicators of trust. A red (entrusted) bar means that the avatar is a guest and has not proved his or her identity; a yellow (weakly trusted) bar indicates that the avatar has an identity, but it has not been verified by any certification authority; and a green (trusted) bar denotes that the avatar’s identity has been verified by a certification authority. Furthermore, each avatar has an economic, social, and civic reputation, whose indicators are handled by a sophisticated reputation system that depends on the avatar’s behaviour. Thus energy rules are implemented by hard constraints.

Identity card in VirtualLife

Professional rules, etc. Other kinds of VirtualLife rules include moral rules, professional rules, user community rules, etc. For example, in VirtualLife, the users can engage in a trusted community called a Virtual Nation, in which particular rules apply.

The architecture of VirtualLife

The VirtualLife project aimed to develop a prototype of a virtual world platform. The main pillars are:

Strong identity
Decentralized peer-to-peer (P2P) network architecture
Interactivity and scripting
Legal and social cooperation framework.

A motivating example of identity verification and trusted service provision is business transactions, where parties need to identify each other to enter an agreement. To prove the concept, currently VirtualLife is targeted at scenarios focused on learning support, such as (1) a university virtual campus and (2) simulations of human and environmental interactions in costly or dangerous situations.

Strong identity. Unlike most other virtual world platforms, VirtualLife requires that the person behind each avatar be real; VirtualLife forbids avatar principals from using pseudonyms. Thus, VirtualLife’s identity system requires the user behind an avatar to prove that he or she really is who he or she claims to be. The requirement that an avatar’s principal be responsible for actions in the virtual world to the same extent as he or she is in the real world is the basis for building any legal framework in the VirtualLife platform. The avatar’s principal needs to be traceable with a customizable and transparent level of trust. This level can be enforced directly within the final platform, according to the rules one wants to impose on its participants. Such rules are either specific to the implemented business logic, or can be dynamically disclosed and enhanced in specific moments during VirtualLife usage.

For this reason, behind any identity in VirtualLife are X.509 compliant certificates. Such a certificate can be issued by a certification authority (CA), either an externally trusted one or a dedicated one. The platform provides, for bootstrapping purposes, an internal CA. Its certification policy is set at installation time according to the company policy.

Together with an X.509 certificate goes a keypair. The private part of this keypair is usually protected by some means (related once again to the general policy the platform provider wants to adopt). VirtualLife, by default, protects the private part of the keypair with a password. The password is exclusively used to unlock the access to the locally stored keypair and is not used for authentication. (This is the same approach used by openssh when using keybased authentication.)

Decentralized peer-to-peer architecture. First of all, VirtualLife can inherently be run on separate servers (even servers located at different physical locations). This means that the architecture of VirtualLife — unlike the architectures of other similar virtual worlds today — allows for a configuration in which no single provider/company owns and rules the entire virtual world. When, within VirtualLife, Zones (i.e., world subparts) federate with a specific Virtual Nation (see details below), they implicitly accept and abide by its rules. They make use of Nation services, and can customize part of the laws to some extent, depending on the original Constitution and law in the Nation. Every VirtualLife avatar is able to verify the current set of laws that rule the specific part of the world he or she is logged in to. Changes in the laws are allowed through a democratic e-voting process.

A Virtual Nation is a set of VirtualLife users sharing the same purpose and values. Within each Virtual Nation are virtual entities based on such real-world concepts as “constitution,” “government,” “register office,” etc. Legal values such as “avatar integrity,” “honour,” “freedom of thought,” “freedom of association,” “sanctity of property,” etc. are implicitly or expressly provided for in the code of conduct within the Virtual Constitution that governs each Virtual Nation.

A Virtual Nation

A Virtual Nation is defined by:

The list of Virtual Zones belonging to it;
The allowed avatars (virtual citizens), authorised by the Virtual Nation;
A constitution (that will be mapped onto a set of technologically implemented laws).

Legal and social cooperation frameworks. Within VirtualLife, people primarily cooperate directly in the 3D world, where avatars can assemble, arrange, prepare, or edit their surroundings. Other mechanisms for social interaction and cooperation within VirtualLife include:

Public text chat
Private encrypted text chat
Voice over IP (VOIP)
Reputation and evaluation mechanisms
Friendship relationship
Contracts
Online dispute resolution
E-voting.

Interactivity and scripting. The Lua language and the Scripting Engine allow interactivity and programming of complex behaviour within VirtualLife. Scripting has been targeted toward programmers, privileging power over ease-of-use. Scripting is on both server side (to define the behaviour of interactive entities and to implement some “virtual laws”) and client side (to personalize the graphical user interface and to create building tools).

Nodes, Virtual Zones, and Virtual Nations. Each virtual world in VirtualLife consists of a peer-to-peer network with nodes connected using a secure protocol. Control in each virtual world subpart (referred to as a “Virtual Zone” or, simply, a “Zone”) is managed by a Zone server (Z-server). A collection of Zones forms a Virtual Nation, consisting of a network of Virtual Zone servers. The peer-based connection model of a Virtual Zone is depicted below:

Peer-based connection model of a virtual zone

Virtual Zone server. Unlike in traditional client-server approaches, there is no centralized point of truth regarding the state of entities in the P2P virtual environment. The truth is maintained in a distributed fashion, where a single node on the network is the authority for a particular entity. The authority node is the only node that sends “update” messages to the rest of the peers, where the latter resolve their internal representations with the truth obtained from the authority.

Network and P2P communication infrastructure

Innovative features in the virtual legal framework

Today, most virtual worlds try to prevent conflicts through rules of conduct contained in end-user license agreements (EULAs) and terms of service. But this regulation is not enough. The existence of rules does not prevent a user from engaging in bad behaviour towards another user. When a user feels that an injustice has occurred, the only way the user can seek justice is to report the abuse to the virtual world’s creators, who can decide to ban or punish the offender. In some cases, the creators invest in specific techniques to keep the virtual world “under surveillance,” e.g., the peacekeepers in Active Worlds. VirtualLife takes a different approach to regulation.

VirtualLife’s legal framework is a three-tier system:

A “Supreme Constitution”;
A “Virtual Nation Constitution” (e.g., Constitution VN1, … , Constitution VNn);
A set of diverse sample contracts.

The Supreme Constitution expresses the fundamental principles of VirtualLife that every user has to adhere to. Additionally, the Supreme Constitution sets out the basic organisational rules according to which the laws of a Virtual Nation, the second tier of the framework, are formed.

A Virtual Nation Constitution contains special and more detailed provisions as regards, for example, the protection of copyrighted objects used in that Virtual Nation, or the authentication procedure required to become a member of that Nation. The Supreme Constitution and each Virtual Nation Constitution are ordinary contracts, implemented by way of click-wrap agreements.

Contracts. The third tier of the VirtualLife legal framework consists of a variety of sample contracts that parties may use to formalise the terms of their transactions, though parties remain free to use their own contractual terms. Currently, two pre-filled contractual templates are being developed, that will be offered to both the Professors’ group and the Students’ group in VirtualLife. Additional clauses of these model contracts concern such issues as the role of an auditor, the VirtualLife reputation system, and dispute resolution.

Effecting the Virtual Constitution at the level of contract law contributes to law enforcement. The EULA represents soft constraints on VirtualLife users’ behaviour through the users’ avatars. Apart from this, a user of VirtualLife software is not ruled exclusively by the previously mentioned sources of law in VirtualLife; the user is also governed by his or her real-world national law — VirtualLife users cannot escape from the law of the material world.

Virtual laws. Within a Virtual Nation, laws are also defined via a dedicated constrained language that is able to translate concepts related to copyrights and rights of use over in-world objects, into the terms of the underlying virtual reality engine permissions system. These laws are defined in terms of permissions respecting in-world entities, and rights-to-change those permissions, that each avatar category grants to other avatar categories. For example, different values and rules are covered by “NoCopy,” “CopyRight,” and “CopyLeft” Nations. Permission language tables serve to implement particular rights.

Related work

Respecting legal issues, the concept of electronic agent has received much scholarly attention; see, e.g., Artificial Intelligence and Law, vol. 12, no. 1-2 (2004). Respecting issues related to the construction of virtual worlds, such as operational implementation, a recent issue of the same journal was devoted to software agents and normativity; see Artificial Intelligence and Law, vol. 16, no. 1 (2008). Anton Bogdanovych (2007) has developed the concept of “virtual institutions” (VIs), defined as “3D virtual worlds with normative regulation of interactions.” VIs incorporate the strengths of normative multiagent systems, particularly “electronic institutions”; see, e.g., Marc Esteva (2003).

Conclusions

Virtual worlds are part of the real world. However, legal and security features of virtual worlds need to be improved in order to guarantee safe and reliable virtual infrastructures.

In virtual worlds, we face the challenge of building a bridge between reality as it “ought-to-be” and reality “as it is.” Here, software engineers identify the rules for virtual worlds, and implement them in computer code. A part of these rules can be explicitly represented — this part corresponds to the “strong” interpretation of the term “normative multiagent system” (see Boella et al. (2009)). A part cannot be represented explicitly, however. Rules of this kind are formulated explicitly in the system specification, namely, in the EULA text — consistent with the “weak” interpretation of “normative multiagent system” (Boella et al.).

A complete implementation of legal rules in software is infeasible. Whereas technical rules allow little space for interpretation — and therefore can be implemented — legal rules allow too much space for interpretation. Moreover, the limits of this space can only be interpreted by lawyers and judges — not programmers untrained in law. Therefore engineers developing legal information systems cope with the following problems:

Abstractness of norms. Norms are formulated (on purpose) in very abstract terms.
Open texture. See H.L.A. Hart’s example of “Vehicles are forbidden in the park.”
Teleology. The purpose of a legal norm usually can be achieved in a variety of ways.
Legal interpretation methods. The meaning of a legal text cannot be extracted from the text alone. Apart from the grammatical interpretation, other methods can be invoked, such as systemic and teleological interpretation.

In the VirtualLife system, these challenges have been addressed through an architecture in which legal norms and technical constraints complement each other. This architecture points to the development of virtual worlds manifesting new levels of reliability and security.

Vytautas Čyras is associate professor at the Faculty of Mathematics and Informatics of Vilnius University (VU), Lithuania, EU. He teaches computer science and artificial intelligence. He received a Master’s degree in computer science from VU (1979) and a Ph.D. from Lomonosov Moscow State University (1985) with a doctoral dissertation entitled “Synthesis of Loop Programs over Multidimensional Data Structures.” In 2007, he earned a Master’s degree in law from VU. He is interested in legal informatics and legal theory.

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

Accessible Law

Adding legal commentary to free access to law services, Crowdsourcing and free access to law, Crowdsourcing and legal information systems, Crowdsourcing the writing of secondary legal resources, free access to law, free law data, Legal commentary, Legal information institutes, Legal social media, Public access to legal information, Secondary legal resources, Web 2.0 and law, Wikis and law 8 Responses »

Feb 152011

Professor Richard Leiter, on his blog, The Life of Books, poses The 21st Century Law Library Conundrum: Free Law and Paying to Understand It:

The digital revolution, that once upon a time promised free access to legal materials, will deliver on that promise; it’s just that the free materials it will deliver, even if it comprises the sum total of all primary law in the country at every level and jurisdiction, will amount to only a minor portion of the materials that lawyers need in order to practice law, and the public needs in order to understand it.

This article explores what more we need in order to understand the law and how this need can be met, from a UK perspective.

Free access to law

Free access to primary law is of course a prerequisite for the interpretation and understanding of the law. In the UK and most countries with a common law tradition, the cause of free access to law is espoused by the Free Access to Law Movement, a collective of legal information institutes that began with the creation of the Cornell Law School Legal Information Institute (LII) in 1992. In the UK we are represented by the British and Irish Legal Information Institute (BAILII), set up in 2000 with the enormous help of the pioneering Australasian Legal Information Institute (AustLII). In October 2002, at the 4th Law via Internet Conference in Montreal, the LIIs published a joint statement of their philosophy of access to law in the following terms:

Legal information institutes of the world, meeting in Montreal, declare that,

Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;

Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;

Independent non-profit organisations have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published.

So, to paraphrase liberally, we have a right to access the laws of our land, free of charge and openly licensed. “The problem for aggregators like LII,” Leiter points out, “is that the information that they provide is only as good as the sources available to them. And governments are just not very good sources of their own information.” In the US, Law.Gov is a movement working to raise the quality of government information, proposing a distributed repository of all primary legal materials of the United States. It believes that “the primary legal materials of the United States are the raw materials of our democracy. They should be made more broadly available to enable an informed citizenry,” and that “governmental institutions should make these materials available in bulk as distributed, authenticated, well-formatted data.” In other words, we need more than free access to law; we need free access to good law data.

UK legislation

In the UK we were fortunate that the previous administration’s Power of Information agenda was being implemented by the Office of Public Sector Information (OPSI), whose role also includes that of Queen’s Printer (of legislation). In December 2006, the long-awaited Statute Law Database (SLD) had been published, having been more than 10 years in development. This provided (subject to a number of shortcomings) point-in-time access to all in-force UK primary legislation since the year dot (forever), and access to all secondary legislation published since 1991. Responsibility for the SLD then lay with the Statutory Publications Office (SPO), part of the Ministry of Justice. In 2008 the decision was taken to merge the SPO into OPSI, who had been publishing all as-enacted legislation since 1988. The merger would bring the online legislative services together, creating a single place where visitors could access the widest range of legislative content held by the government, alongside supporting material. That service is Legislation.gov.uk, launched in July 2010, which has now replaced the SLD and OPSI legislation services.

The Legislation.gov.uk interface provides simple and direct browse access to legislation by type, year and number, and simple or advanced searches to locate matching legislation. Primary legislation can be viewed as at any point in time since 1991. More important than this improved access to legislation, however, is the fact that the content is open. It is all well-structured XML; any piece of legislation or legislation fragment can be addressed reliably and simply in various useful formats via the URI scheme; and any list of legislation resulting from a query can be delivered as an Atom feed. And a new licensing model for public sector information (which in the UK is subject to Crown copyright) was introduced at the same time – the Open Government Licence.

Unfortunately, there are insufficient government resources to maintain an up-to-date, consolidated statute book, as Shane O’Neill observes:

The lack of up-to-date consolidation – no fault of the Legislation.gov.uk team who have laboured valiantly on their Sisyphean task – must be a concern to those who harboured greater ambitions (not least Government and judiciary). It leaves access to an up-to-date and consolidated statute book in the hands of those who have invested in and deliver highly exclusive legal information services [Westlaw/LexisNexis – hereafter Wexis].

The Legislation.gov.uk service is delivered by The National Archives (of which OPSI is part) with John Sheridan, Head of e-Services and Strategy, at the helm. John describes the development in some detail in an earlier post on VoxPopuLII:

We had two objectives with legislation.gov.uk: to deliver a high quality public service for people who need to consult, cite, and use legislation on the Web; and to expose the UK’s Statute Book as data, for people to take, use, and re-use for whatever purpose or application they wish.

There’s more about the technical project and the people behind it from Jeni Tennison, technical lead and main developer (at TSO), on her blog. John is also on the expert panel of technologists advising the government on making public sector information more open and accessible on the Web, an initiative which led to the development of data.gov.uk, which currently provides access to over 5,600 central government datasets.

UK case law

Unfortunately, the public provision of case law in the UK is woefully inadequate, and we have to rely on the efforts of BAILII (a charity) to collate and deliver anything approaching a comprehensive collection of recent judgments. BAILII does a grand job in the circumstances, but – through no fault on its part – it is not comprehensive and it is not open. The various courts all publish their judgments in their own fashion, with no consistency of approach; in fact the High Court of England and Wales does not publish its own judgments at all, but passes selected handed-down judgments to BAILII to publish. To make matters worse, our right to access this case law is far from clear. There is some argument whether judges are public servants or not and hence whether their judgments are public sector information or not. In addition, regarding older judgments, the low level of originality required for copyright protection in the UK means that almost all older cases are copyright of either the transcriber or the reporter (or the publisher who commissioned them).

Understanding the law

Does free access to law or, even better, free access to good law data, make the law accessible? Will it empower the average citizen? Unfortunately not. As Leiter says, it is only a fraction of what lawyers need to practice law and the public needs to understand it. The law is not practically accessible: it is difficult to identify, obtain and understand legal resources, and they are frequently out of date. Whilst it is reasonable to expect legal advisers to invest in the necessary commercial services to inform themselves, these services are becoming increasingly unaffordable for the less affluent law practices and third sector advice bodies. For the non-lawyer, the law is all but impenetrable, and solving many legal problems and resolving disputes is in practice affordable only to the rich or those who are eligible for some kind of state support. Lord Justice Toulson in R v Chambers [2008] EWCA Crim 2467 famously bemoaned the complexity of legislation:

To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons. … First, the majority of legislation is secondary legislation. …Secondly, the volume of legislation has increased very greatly over the last 40 years …Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation. … Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.

The give-us-the-data-and-we’ll-organise-the-world crowd also display a touching naïvety when it comes to the law. For example, on the launch of Legal Opinions on Google Scholar, Anurag Acharya, “Distinguished Engineer” at Google, said:

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. … we were struck by how readable and accessible these opinions are. Court opinions don’t just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations.

Any initiative that makes the law more accessible is to be welcomed, but to empower the average citizen you have to go the extra mile, by explaining the law. Lawyers and legal researchers have spent years learning the law and acquiring the skills that enable them to navigate and reliably interpret primary law and precedent. They will find value in free access to law and in Google Scholar and other free services that are built on that, but they and the average citizen need more. That need is met largely by commercial publishers, and, while there many smaller independent publishers who provide good value in their niches, as O’Neill observes:

Legal publishing has long been dominated by two huge duopolists (Reed Elsevier’s LexisNexis and ThomsonReuters) whose scale alone enables them to provide a consolidation of the mix of primary, secondary, case law which characterises our common law system. This has created what [barrister Francis Davey] in The Times on 23 May 2006 characterised as “a two-tier justice system with only the very rich able to access the full consolidated law while those lawyers doing pro bono work are discriminated against.”

But there is an increasing amount of quality free legal commentary and analysis on the Web, and we can dream on.

The law wiki dream

Writing in Times Online in April 2006, the eminent Professor Richard Susskind, legal tech guru and adviser to the great and good, spelt out his vision for a “Wikipedia of English law”:

This online resource could be established and maintained collectively by the legal profession; by practitioners, judges, academics and voluntary workers. If leaders in the English legal world are serious about promoting the jurisdiction as world class, here is a genuine opportunity to pioneer, to excel, to provide a wonderful social service, and to leave a substantial legacy. The initiative would evolve a corpus of English law like no other: a resource readily available to lawyers and lay people; a free web of inter-linked materials; packed with scholarly analysis and commentary, supplemented by useful guidance and procedure; rendered intensely practical by the addition of action points and standard documents; and underpinned by direct access to legislation and case law, made available by the Government, perhaps through BAILII. … A Wikipedia of English law could be an evolving, interactive, multimedia legal resource of unprecedented scale and utility.

Susskind referred specifically to wikis and “a Wikipedia,” and that was taken rather literally by those who enthusiastically first took up his challenge. But I don’t believe he necessarily intended it literally, and I don’t believe that “a Wikipedia” or indeed the wiki platform is appropriate. Wikipedia has to be seen as a one-off; no wiki project since has come anywhere near its scale or success. We are most unlikely to build an encyclopedia of UK law from scratch; but why would we try when there is already a vast free legal web?

The free legal web

In 2008, enthused by the developments in open government and by the amount of quality legal commentary that was percolating up on the Web, I proposed to set up a service to exploit this – FreeLegalWeb. In the manifesto I listed the free access law resources then available, and I now list them with appropriate updates, here:

We have [free and open access to legislation]

[We have] other official documents, forms and guidance from government and a commitment to making these resources more accessible and encouraging user generated services.

We have another substantial free access primary law database – BAILII.

We have a number of specialists already maintaining specialist law wikis and enthusiasts contributing law articles to Wikipedia.

We have a growing number of law bloggers, many of whom provide succinct, expert ongoing commentary and analysis.

We have many other individuals, firms and publishers who publish case summaries, articles, updaters and guidance for free access on their websites.

We have public, charitable and private services providing free guidance and fora for the public faced with legal processes.

And finally, we have Web 2.0 technologies that enable (potentially) all these sources to be interrogated, aggregated, “mashed up” and repurposed.

That sounded like a free legal web to me; all we had to do was join it up and curate it! But how feasible is that?

A “bunch of goo”?

Bob Berring, legal research guru and Professor of Law at the University of California, Berkeley, gave his thoughts on the matter on YouTube in October 2009. He believes that government efforts in the provision of free legal information have failed because there are no incentives; and that “volunteer efforts”, worthy as they may be, are unlikely to be sustained. He rightly says that legal information is not easily packaged: we need a map and a compass to navigate it; it needs to be organised and value added. I think we all agree with that. But his conclusion appears to be that only Wexis have sufficient incentive and only they can mobilise the necessary army to add sufficient value for it to be useful. For Bob, the free legal information that’s out there is “a bunch of goo,” and the only thing that can sort out the mess is “the market system”. That’s clearly not the case:

government has an incentive to make legal information more accessible
the legal profession has an incentive to make legal information more accessible
various non-profits have an incentive to make legal information more accessible
citizens have an incentive to make legal information more accessible
and there are many private enterprises short of Wexis who have an incentive to make legal information more accessible.

… How?

Curating the legal web

For help I’m increasingly turning to Jason Wilson, Vice President at Jones McClure Publishing. He has a nice clean minimalist blog with great pics accompanying each post. More importantly, he’s interested in the kind of questions I’m also trying to answer, such as: Can we crowdsource reliable analytical legal content?

I have given considerable thought to this problem (and I have a greater interest in solving it than most), and I just don’t see how a Demand Media or similar model could ever produce good or reliable analytical material.

But in the next breath he acknowledges that a lot of good stuff has indeed already been generated by the crowds, and asks how we will organise that legal web. Actually the question is buried at the end of a dense post about “exploded data” (the value of analytical content):

My thought at this point is that the legal web is in an infancy that we can’t even fathom yet. There is cloud of associated information that our current computer assisted legal research vendors cannot give to us based on their algorithms, especially when they remain in walled-in gardens that don’t account for the vast and valuable information being created by users. The question is whether we will step up to organize this sea of data, or wait until a program can do it for us?

Moving on, in a more accessible post on Slaw he asks how we can effectively curate the legal web:

Curating this growing body of analytical content will be difficult. It suggests a person-machine process of locating and separating good content from bad, and categorizing, verifying, authenticating, and editorializing that content. It will undoubtedly require the creation of a rich taxonomy to help organize and manage the content for later discovery, clean metadata, and a good search engine, and raises issues from data permanency to copyrights to brand dilution. It’s a mess. But a worthy one I think.

and in the comments to that post:

I suppose the point to my post is whether we can wrap a wiki-like structure and interface around the legal web, and make it a destination for learning about both general topics and specific issues, rather than just a portal for all results that match search terms.

Yes we can! However clever the machine, these tasks – “locating and separating good content from bad, and categorizing, verifying, authenticating, and editorializing” – to a large degree require human intervention. But that intervention need only be light touch once we figure out how most effectively to harness the wisdom of the crowds.

Conclusion

Free access to law is not a panacea, but there is plenty of scope for delivering more accessible law by leveraging not just free law but the free legal web; for delivering free services that are good enough for the average citizen, and for lower cost commercial services that are good enough for the average lawyer. Big Law will continue to need Wexis, but the “lower-tier” can be much better served. The final word I will leave with Tom Bruce:

We need to make informed choices between inexpensive automated approaches that work by brute force and the hand-crafted, highly-accurate approaches of legal bibliography that are not always scalable or affordable. We need to recalibrate what we mean by “authority”, and begin to think about measures of quality and reliability for legal text that avoid the creation of unnatural monopolies in legal information.

[Editor’s Note: For more information on crowdsourcing legal commentary, please see Staffan Malmgren’s post. On using social media to enhance access to free legal resources, see Olivier Charbonneau’s post. On making primary law useable by non-lawyer citizens, see earlier posts by Judge Dory Reiling and Christine Kirchberger. For earlier replies to Bob Berring, see Tom Bruce’s responses here and here.]

Nick Holmes is a publishing consultant specialising in the UK legal sector and is Managing Director of legal information services company infolaw (infolaw.co.uk). He is also the founder of FreeLegalWeb CIC (freelegalweb.org).

Email: nickholmes [at] infolaw [dot] co [dot] uk. Twitter: @nickholmes.

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

PACER, RECAP, and the Movement to Free American Case Law

Court docket systems, Court documents, Court information systems, Crowdsourcing and legal information systems, free access to law, Judicial information systems, Law.gov, PACER, Public access to legal information, U.S. Federal Courts 27 Responses »

Feb 032011

Readers of this blog are probably already familiar with the U.S. Federal Courts’ system for electronic access called PACER (Public Access to Court Electronic Records). PACER is unlike any other country’s electronic public access system that I am aware of, because it provides complete access to docket text, opinions, and all documents filed (except sealed records, of course). It is a tremendously useful tool, and (at least at the time of its Web launch in the late 1990s) was tremendously ahead of its time.

However, PACER is unique in another important way: it imposes usage charges on citizens for downloading, viewing, and even searching for case materials. This limitation unfortunately forecloses a great deal of democracy-enhancing activity.

The PACER Liberation Front

In 2008, I happened upon PACER in the course of trying to research a First Amendment issue. I am not a lawyer, but I was trying to get a sense of the federal First Amendment case law across all federal jurisdictions, because that case law had a direct effect on some activists at the time. I was at first excited that so much case law was apparently available online, but then disappointed when I discovered that the courts were charging for it. After turning over my credit card number to PACER, I was shocked that the system was charging for every single search I performed. With the type of research I was trying to do, it was inevitable that I would have to do countless searches to find what I was looking for. What’s more, the search functionality provided by PACER turned out to be nearly useless for the task at hand — there was no way to search for keywords, or within documents at all. The best I could do was pay for all the documents in particular cases that I suspected were relevant, and then try to sort through them on my own hard drive. Even this would be far from comprehensive.

This led to the inevitable conclusion that there is simply no way to know federal case law without going through a lawyer, doing laborious research using print legal resources, or paying for a high-priced database service. My only hope for getting use out of PACER was to find some way to affordably get a ton of documents. This is when I ran across a nascent project led by open government prophet Carl Malamud. He called it PACER Recycling. Carl offered to host any PACER documents that anybody happened to have, so that other people could download them. At that time, he had only a few thousand documents, but an ingenious plan: The federal courts were conducting a trial of free access at about sixteen libraries across the country. Anyone who walked in to one of those libraries and asked for PACER could browse and download documents for free. Carl was encouraging a “thumb drive corps” to bring USB sticks into those libraries and download caches of PACER documents.

The main bottleneck with this approach was volume. PACER contains hundreds of millions of documents, and manually downloading them all was just not going to happen. I had a weekend to kill, and an idea for building on his plan. I wrote up a Perl script that could run off of a USB drive and that would automatically start going through PACER cases and downloading all of the documents in an organized fashion. I didn’t live near one of the “free PACER” libraries, so I had to test the script using my own non-free PACER account… which got expensive. I began to contemplate the legal ramifications — if any — of downloading public records in bulk via this method. The following weekend I ran into Aaron Swartz.

Aaron is one of my favorite civic hackers. He’s a great coder and has a tendency to be bold. I told him about my little project, and he asked to see the code. He made some improvements and, given his higher tolerance for risk, proceeded to use the modified code to download about 2,700,000 files from PACER. The U.S. Courts freaked out, cancelled the free access trial, and said that “[t]he F.B.I. is conducting an investigation.” We had a hard time believing that the F.B.I. would care about the liberation of public records in a seemingly legal fashion, and told The New York Times as much. (Media relations pro tip: If you don’t want to be quoted, always, repeatedly emphasize that your comments are “on background” only. Even though I said this when I talked to The Times, they still put my name in the corresponding blog post. That was the first time I had to warn my fiancée that if the feds came to the door, she should demand a warrant.)

A few months later, Aaron got curious about whether the FBI was really taking this seriously. In a brilliantly ironic move, he filed a FOIA for his own FBI record, which was delivered in due course and included such gems as:

Between September 4, 2008 and September 22, 2008, PACER was accessed by computers from outside the library utilizing login information from two libraries participating in the pilot project. The Administrative Office of the U.S. Courts reported that the PACER system was being inundated with requests. One request was being made every three seconds.

[…] The two accounts were responsible for downloading more than eighteen million pages with an approximate value of $1.5 million.

The full thing is worth a read, and it includes details about the feds looking through Aaron’s Facebook and LinkedIn profiles. However, the feds were apparently unable to determine Aaron’s current residence and ended up staking out his parents’ house in Illinois. The feds had to call off the surveillance because, in their words: “This is a heavily wooded, dead-end street, with no other cars parked on the road making continued surveillance difficult to conduct without severely increasing the risk of discovery.” The feds eventually figured out Aaron wasn’t in Illinois when he posted to Facebook: “Want to meet the man behind the headlines? Want to have the F.B.I. open up a file on you as well? Interested in some kind of bizarre celebrity product endorsement? I’m available in Boston and New York all this month.” They closed the case.

Turning PACER Around

Carl published Aaron’s trove of documents (after conducting a very informative privacy audit), but the question was: what to do next? I had long given up on my initial attempt to merely understand a narrow aspect of First Amendment jurisprudence, and had taken up the PACER liberation cause wholeheartedly. At the time, this consisted of writing about the issue and giving talks. I ran across a draft article by some folks at Princeton called “Government Data and the Invisible Hand.” It argued:

Rather than struggling, as it currently does, to design sites that meet each end-user need, we argue that the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data.

I couldn’t have agreed more, and their prescription for the executive branch made sense for the brain-dead PACER interface too. I called up one of the authors, Ed Felten, and he told me to come down to Princeton to give a talk about PACER. Afterwards, two graduate students, Harlan Yu and Tim Lee, came up to me and made an interesting suggestion. They proposed a Firefox extension that anyone using PACER could install. As users paid for documents, those documents would automatically be uploaded to a public archive. As users browsed dockets, if any documents were available for free, the system would notify them of that, so that the users could avoid charges. It was a beautiful quid-pro-quo, and a way to crowdsource the PACER liberation effort in a way that would build on the existing document set.

So Harlan and Tim built the extension and called it RECAP (tagline: “Turning PACER around” Get it? eh?). It was well received, and you can read the great endorsements from The Washington Post, The L.A. Times, The Guardian, and many like-minded public interest organizations. The courts freaked out again, but ultimately realized they couldn’t go after people for republishing the public record.

I helped with a few of the details, and eventually ended up coming down to work at their research center, the Center for Information Technology Policy. Last year, a group of undergrads built a fantastic web interface to the RECAP database that allows better browsing and searching than PACER. Their project is just one example of the principle laid out in the “Government Data and the Invisible Hand” paper: when presented with the raw data, civic hackers can build better interfaces to that data than the government.

From Fee to Free

Despite all of our efforts, the database of free PACER materials still contains only a fraction of the documents stored in the for-fee database. The real end-game is for the courts to change their mind about the PACER paywall approach in the first place. We have made this case in many venues. Influential senators have sent them letters. I have even pointed out that the courts are arguably violating The 2002 E-Government Act. As it happens, PACER brings in over $100 million annually through user fees. These fees are spent partially on supporting PACER’s highly inefficient infrastructure, but are also partially spent on various other things that the courts deem somehow related to public access. This includes what one judge described as expenditures on his courtroom:

“Every juror has their own flatscreen monitors. We just went through a big upgrade in my courthouse, my courtroom, and one of the things we’ve done is large flatscreen monitors which will now — and this is a very historic courtroom so it has to be done in accommodating the historic nature of the courthouse and the courtroom — we have flatscreen monitors now which will enable the people sitting in the gallery to see these animations that are displayed so they’re not leaning over trying to watch it on the counsel table monitor. As well as audio enhancements. In these big courtrooms with 30, 40 foot ceilings where audio gets lost we spent a lot of money on audio so the people could hear what’s going on. We just put in new audio so that people — I’d never heard of this before — but it actually embeds the speakers inside of the benches in the back of the courtroom and inside counsel tables so that the wood benches actually perform as amplifiers.”

I am not against helping courtroom visitors hear and see trial testimony, but we must ask whether it is good policy to restrict public access to electronic materials on the Internet in the name of arbitrary courtroom enhancements (even assuming that allocating PACER funds to such enhancements is legal, which is questionable). The real hurdle to liberating PACER is that it serves as a cross-subsidy to other parts of our underfunded courts. I parsed a bunch of appropriations data and committee reports in order to write up a report on actual PACER costs and expenditures. What is just as shocking as the PACER income’s being used for non-PACER expenses, is the actual claimed cost of running PACER, which is orders of magnitude higher than any competent Web geek would tell you it should be (especially for a system whose administrators once worried that “one request was being made every three seconds.”). The rest of the federal government has been moving toward cloud-based “Infrastructure as a Service”, while the U.S. Courts continue to maintain about 100 different servers in each jurisdiction, each with their own privately leased internet connection. (Incidentally, if you enjoy conspiracy theories, try to ID the pseudonymous “Schlomo McGill” in the comments of this post and this post.)

The ultimate solution to the PACER fee problem unfortunately lies not in exciting spy-vs-spy antics (although those can be helpful and fun), but in bureaucratic details of authorization subcommittees and technical details of network architecture. This is the next front of PACER liberation. We now have friends in Washington, and we understand the process better every day. We also have very smart geeks, and I think that the ultimate finger on the scale may be our ability to explain how the U.S. Courts could run a tremendously more efficient system that would simultaneously generate a diversity of new democratic benefits. We also need smart librarians and archivists making good policy arguments. That is one reason why the Law.gov movement is so exciting to me. It has the potential not only to unify open-law advocates, but to go well beyond the U.S. Federal Case Law fiefdom of PACER.

Perhaps then I can finally get the answer to that narrow legal question I tried to ask in 2008. I’m sure that the answer will inevitably be: “It’s complicated.”

Steve Schultze is Associate Director of The Center for Information Technology Policy at Princeton. His work includes Internet privacy, security, government transparency, and telecommunications policy. He holds degrees in Computer Science, Philosophy, and Media Studies from Calvin College and MIT. He has also been a Fellow at The Berkman Center for Internet & Society at Harvard, and helped start the Public Radio Exchange.

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PACER, RECAP, and the Movement to Free American Case Law

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

Is a Private Copyright in State Statutes Constitutional / Enforceable?

How Copyright Law is Applied to State Codes

Policy: Should We Root for Publishers?

How States Can Take Back their Codes

Conclusion

Free access to law

UK legislation

UK case law

Understanding the law

The law wiki dream

The free legal web

A “bunch of goo”?

Curating the legal web

Conclusion

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