The MetaLex Document Server

Legal identifiers, Legal metadata, Legal semantic web, Legal text processing, Legal XML, Legislative information systems, Regulatory information systems, Semantic Web and law 3 Responses »

Oct 252011

In this post I describe the process and requirements that eventually led to the MetaLex Document Server, a server that hosts all versions of Dutch national statutes and regulations published since May 2011, both as CEN MetaLex, and as Linked Data. Before I set out to do so, however, I would like to emphasize that, although the development of the server and its contents was a one-man-job, the road to make it possible surely was not solitary. A couple of people I’d like to mention here are Alexander Boer, Radboud Winkels, and Tom van Engers of the Leibniz Center for Law, together with whom I have worked over the past ten years to develop, test, and publish the ideas that underlie CEN MetaLex. Also, the team around legislation.gov.uk clearly has done a lot of great and inspiring work in this area.

So, what happened? Over the course of last spring, I was involved in several small-scale projects that shared a specific need: version-aware identifiers for all parts of legislative texts. The first of these was a report for the Swiss Federal Chancellery on possible technological solutions for a regulation drafting system to be used by the Swiss government. Second to arrive on my desk was a project for the Dutch Tax and Customs Administration (Belastingdienst), in which we were asked to develop a concept-extraction toolkit that would allow them to make explicit where concepts are defined, where they are reused, and how they relate to other concepts (e.g., from an external thesaurus). The purpose of this project was to investigate whether we could replace with technology what is currently a manual process of turning legislation into business processes that fuel citizen- and business-oriented services. The Belastingdienst needs this to better cope with the yearly changes to tax regulation issued by the Ministry of Finance. The Dutch Immigration and Naturalisation Service (IND) faces exactly the same problem: of discovering what part of their business processes is affected by each legislative modification. Updates to legislation require continuous, significant investment in IT re-engineering.

The root of the problem

But don’t modern European governments already have elaborate facilities for supporting this workflow? I’m afraid not.

Currently, regulation drafting is a process of sending around Word documents, copy-and-pasting from older texts, “version hell,” signing by a Minister, and sending the enacted regulations off to a publisher, who will then turn it into some XML format to feed a publishing platform to generate HTML, PDF, and paper versions of the texts. This process is not designed with a content management perspective, and most if not all metadata is thrown away in the process.

Part of the problem is one of organisational change: convincing legislative drafters to use a more structured approach in their daily work. The Dutch Ministry of Security and Justice is currently developing a legislative editing environment (similar to the MetaVex editor developed at the University of Amsterdam), but it will take awhile before this is adopted in practice.

Requirements

To develop a chain of tools for managing legal information, both as text and as knowledge models, we need to address a number of key requirements:

An integrated legislative drafting and editing environment that supports advanced version and provenance tracking (e.g., version tracking of successive changes to draft texts). Provenance information is very important for eliciting the procedure that led to an official version (both pre- and post-publication), as well as its underlying motivation.
A format in which these texts are stored that is flexible enough to allow both editing and publication to various formats (such as PDF and HTML).
The ability to persistently identify every element of a legal text. Versioning of texts, references, and metadata requires identifiers that reflect the different versions of these resources. The various parts of a text should be versioned independently, allowing for transitory regimes.

A versioning mechanism should distinguish between a regulation text as it exists at a particular time, and the final regulation. The IFLA Functional Requirements for Bibliographic Records (FRBR) (Saur, ’98) makes the following distinctions: the work as a “distinguishable intellectual or artistic creation” (e.g., the constitution); the expression as the “intellectual or artistic form that a work takes each time it is realised” (e.g., “The Constitution of July 15th, 2008”); the manifestation as the “physical embodiment of an expression of a work” (e.g., a PDF version of “The Constitution of July 15th, 2008”); and the item as a “single exemplar of a manifestation” (e.g., the PDF version of “The Constitution of July 15th, 2008” residing on my USB stick).

These identifiers should be dereferenceable to the element they describe, or a description of the element’s metadata.
Metadata and annotations should be traceable to the most detailed part of a text, as well as to its version, when needed. The same requirement holds for references between texts, allowing for fine-grained analysis of interdependencies between texts.
It is furthermore a requirement that these identifiers be transparent and follow a prescribed naming convention. This allows third parties to construct valid identifiers without having to first query a name service.
The metadata itself should be made accessible in a standard format as well.

Making do with what we’ve got

As we don’t have any time to waste, and have neither the organisational infrastructure, nor the funds, to use or develop any other (richer) information source, we need to make do with what’s currently available. How hard is it to build a chain of tools that meets at least part of these requirements? And, what information does the Dutch government already provide on which we can build the services that it itself so dearly needs?

Wetten.overheid.nl is the de facto source for legislative information in The Netherlands. Users can perform a full text search through the titles and text of all statutes and regulations of the Kingdom of the Netherlands. They can search for a specific article, as well as for the version of a text as it stood at a specified date. Wetten.overheid.nl also provides an API for retrieving XML manifestations of statutes and regulations.

Identifiers

What about identifiers? Wetten.nl supports deeplinks to particular versions of statutes and regulations, but is not very consistent about it. For example:

http://wetten.overheid.nl/cgi-bin/deeplink/law1/bwbid=BWBR0005416/article=6/date=2005-01-14

and

http://wetten.overheid.nl/BWBR0005416/TitelII698946/HoofdstukII/Artikel16/geldigheidsdatum_14-01-2005

both point to article 6 of the Municipal law, as it was in effect on January 14th, 2005. A third mechanism for identifying regulations is the Juriconnect standard for referring to parts of statutes and regulations. XML documents hosted by Wetten.nl use these identifiers to specify citations between statutes and regulations. For instance, the Juriconnect identifier for article 6 of the Municipal law is:

1.0:c:BWBR0005416&artikel=16&g=2005-01-14

But… the standard does not prescribe a mechanism for dereferenecing an identifier to the actual text of (part of) a statute or regulation.

The BWB XML service and format

XML manifestations of statutes and regulations are retrievable through an API on top of the “Basiswettenbestand” (BWB) content management system. This REST Web service only provides the latest version of an entire statute or regulation. The BWB XML document returned is stripped of all version history: it does not even contain the version date of the text itself.

An index of all BWB identifiers, with basic attributes such as official and abbreviated titles, enactment and publication dates, retroactivity, etc. is available as a zipped XML dump or a SOAP service. Unfortunately, the XML file is corrupt, and the date of the latest change to a statute or regulation reported in the index is not really the date of the latest modification, but of the latest update of the statute or regulation in the CMS. See the picture above.

The BWB uses its own XML schema for storing statutes and regulations; this schema does not allow for intermixing with any third-party elements or attributes, ruling out obvious extensions for rich annotations such as RDFa. And, BWB XML elements do not carry any identifiers.

A more general XML format: CEN MetaLex

CEN MetaLex is a jurisdiction-independent XML format for representing, publishing, and interchanging legal texts. It was developed to allow traceability of legal knowledge representations to their original source. MetaLex elements are purely structural. Syntactic elements (structure) are strictly distinct from the meaning of elements by specifying for each element a name and its content model. What this essentially does is to pave the way for a semantic description of the types of content of elements in an XML document. The standard prescribes the existence of a naming convention for minting URI-based identifiers for all structural elements of a legal document. MetaLex explicitly encourages the use of RDFa attributes on its elements, and provides special metadata-elements for serialising additional RDF triples that cannot be expressed on structural elements themselves. MetaLex includes an ontology, which defines an event model for legislative modifications. The legislation.gov.uk portal has adopted the MetaLex event model for representing modifications.

Getting from BWB to CEN MetaLex

The MetaLex schema is designed to be independent of jurisdiction, which means that it should be possible to map each legacy XML element to a MetaLex element in an unambiguous fashion. Fortunately, we were able to define a straightforward 1:n mapping between BWB and MetaLex (see below) by a semi-automatic conversion of the BWB XML DTD.

The transformation of legacy XML to MetaLex and RDF is implemented in the MetaLex converter, an open source Python script available from GitHub. Conversion occurs in four stages:

mapping legacy elements to MetaLex elements,
minting identifiers for newly created elements,
producing metadata for these elements, and
serialising to appropriate formats.

Step 1: Mapping

For the transformation of BWB XML files, the converter is sequentially fed with all BWB XML files and identifiers listed in the BWB ID index. Based on the mapping table, the converter traverses the DOM tree of the source document, and synchronously builds a DOM tree for the target document. In cases where the MetaLex schema doesn’t quite “fit,” the converter has to make additional repairs.

We evaluated the ability of MetaLex to map onto the BWB XML by running the converter on 300 randomly selected BWB identifiers. The artikel element accounts for 72% of all corrections, and corresponds to 68% of all htitle substitutions (5 % of total). This means that only a very small part of BWB XML does not directly fit onto the MetaLex schema. The main cause for incompatibility is the restriction in MetaLex that hcontainer elements are not allowed to contain block elements (and that’s perhaps something to consider for the MetaLex workshop).

Because of the limitations of the API, version information, citation titles, and other metadata are retrieved through a custom-built scraper of the information pages on the wetten.nl Website.

Step 2: Minting Identifiers

For every element in the document we create transparent URL-like URIs for the work, expression and manifestation levels, and two opaque URIs for the expression and item levels in the FRBR specification.

For transparent URIs, we use a naming scheme that is based on the URIs used at legislation.gov.uk, with slight adaptations to allow for the Dutch situation. In short, work level identifiers are based on the standard BWB identifier, followed by a hierarchical path to an element in the source, e.g., “chapter/1/article/1”. These URIs are extended to expression URIs by appending version and language information. Similarly, manifestation URIs are extensions of expression URIs that specify format information such as XML, RDF, etc. Juriconnect references in the source BWB XML are automatically translated to this naming scheme.

The opaque version URI is needed to distinguish different versions of a text. The current Webservice does not provide access to all versions of statutes and regulations (only to the latest), let alone at a level of granularity lower than entire statutes or regulations. We therefore need some way of constructing a version history by regularly checking for new versions, and comparing them to those we looked at before. By including in the opaque URI a unique SHA1 hash of the textual content of an XML element, and simultaneously maintaining a link between the opaque URI and the transparent identifier, different expressions of a work can be automatically distinguished through time. This is needed to work around issues with identifiers based on numbers: the insertion of a new element can change the position (and therefore the identifier) of other elements without a change in the content of the elements.

By this method, globally persistent URIs of every element in a legal text can be consistently generated for both current and future versions of the text. By simultaneously generating an opaque and a transparent expression level URI, identification of these text versions does not have to rely on numbering.

Step 3: Producing Metadata

The MetaLex converter produces three types of metadata. First, legacy metadata from attributes in the source XML is directly translated to RDF triples. Second, metadata describing the structural and identity relations between elements is created. This includes typing resources according to the MetaLex ontology, e.g., as ml:BibliographicExpression; creating ml:realizes relations between expressions and works; and creating owl:sameAs relations between opaque and transparent expression URIs. The official title, abbreviation, and publication date of statutes and regulations are represented using the dcterms:title, dcterms:alternative and dct:valid properties.

Events and Processes

Event information plays a central role in determining what version of a regulation was valid when. Making explicit which events and modifying processes contributed to an expression of a regulation provides for a flexible and extensible model. The MDS uses the MetaLex ontology for legislative modification events, the Simple Event Model (SEM) and the W3C Time Ontology for an abstract description of events and event types, and the Open Provenance Model Vocabulary (OPMV) for describing processes and provenance information. These vocabularies can be combined in a compatible fashion, allowing for maximal reuse of event and process descriptions by third parties that may not necessarily commit to the MetaLex ontology.

Step 4: Serialization

The MetaLex converter supports three formats for serialising a legal text to a manifestation: the MetaLex format itself, viewable in a browser by linking a CSS stylesheet; RDFa, Turtle and RDF/XML serializations of the RDF metadata; and a citation graph. The converter can automatically upload RDF to a triple store through either the Sesame API, or SPARQL updates. The citation graph is exported as a ‘”net” network file, for further analysis in social network software tools such as Pajek and Gephi. We are exploring ways to use these networks for determining the importance of articles (in degree) and the dependency of legislation on certain articles (betweenness centrality), and for analysing the correlation between legislation and case law.

Publication

The results of this procedure are published through the MetaLex Document Server (MDS). The server follows the Cool URIs specification, and implements HTTP-based redirects for work- and expression-level URIs to corresponding manifestations based on the HTTP accept header. Requests for an HTML mime-type are redirected to a Marbles HTML rendering of a Symmetric Concise Bounded Description (SCBD) of the RDF resource. Similarly, requests for RDF content return the SCBD itself; supported formats are RDF/XML and Turtle. A request for XML will return a snippet of MetaLex for the specified part of a statute or regulation.

The MDS provides two convenient methods for retrieving manifestations of a statute or regulation. Appending “/latest” to a work URI will redirect to the latest expression present in the triple store. Appending an arbitrary ISO date will return the last expression published before that date if no direct match is available. Lastly, the MDS offers a simple search interface for finding statutes and regulations based on the title and version date.

Results and Take Up

We have been running the converter on a daily basis, on all versions of statutes and regulations made available through the wetten.nl portal since May 2011. This has resulted in a current total of 29,120 document versions: 28 thousand versions in the first run, the rest accumulated through time. For these document versions, we now store 119 million triples of RDF metadata in a 4Store triple store. Compared to the size of legislation.gov.uk (1.9 billion triples, since the 1200s), this is a modest number, but at the current growth rate we will soon need to look for alternative (more professional) solutions. Check the http://doc.metalex.eu Website for the latest numbers.

I am happy to say, also, that this work has not gone unnoticed. The IND was particularly enthused by the versioning mechanism, and is in the process of adopting the MDS approach as their internal content management system. Similarly, the ability to link concept descriptions to reliably versioned parts of legislation has been an eye opener for the Belastingdienst. We are also in touch with several people at ICTU, the organisation behind Wetten.nl, to help them improve their services.

Dr. Rinke Hoekstra is a postdoctoral researcher at the Leibniz Center for Law at the University of Amsterdam. He is the developer of the MetaLex Document Server, the principal author of the LKIF Core ontology of basic legal concepts, and one of the initial developers of the MetaLex XML format for legal sources.

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.

The Uniform Electronic Legal Material Act Is Ready for Legislative Action

authentication, Preservation of electronic legal information, Preservation of legal information, Public access to legal information, Standards 6 Responses »

Oct 152011

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

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

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

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

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

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

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

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

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

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

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

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

Authentication (Sections 5 and 6) :

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

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

Preservation (Section 7):

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

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

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

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

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

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

Permanent Access (Section 8):

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

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

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

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

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

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

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

CSL, Metadata, and Legal Information that Just Works

Legal citation, Legal citations, Legal descriptive metadata, Legal metadata 5 Responses »

Oct 022011

In the wake of a decisive victory at the Battle of Sekigahara in 1600, Tokugawa Ieyasu treated rival Japanese warlords to a simple but effective instrument of control, pioneered in the preceding Era of the Warring States. The Daimyo, as the defeated clan heads were known, retained control of their respective domains, but were required to reside in the newly established seat of government at Edo (now Tokyo) in alternate years. They were free to return home in the off-years, but only by leaving their princesses and heirs behind in the walled gardens of the capitol, as a token of the enduring bond of friendship and mutual admiration that united the Shogun and his sometimes grudging subordinates.

The processions of competing Daimyo moving to and from the seat of real power soon became a measure of status, and the cost of these semi-annual journeys would eventually consume fully half of each Daimyo’s disposable income. This contributed greatly to the prosperity of communities stationed along the wayside, where tradesmen, innkeepers, chefs, entertainers, and the occasional thief shared in revenue extracted from the peasants in the Daimyo’s fiefdom back home. A cynic might say that the practice of san-kin-kōtai (参勤交代) was little more than an elaborate system of hostage-taking, but in its way it was very good for business — at least if you did not have the misfortune to be a peasant.

Japan later shed the hobbles of feudal regulation, of course, and the population are now free to move about as they please; but for Daimyo read content, and for the Daimyo’s princesses and progeny read metadata, and you have a description of a familiar Internet business model. Too familiar, perhaps, as most of us now rely on content supplied through walled gardens for much of our research work.

Just as the freedom of individuals is improved by lifting restraints on travel, so the flow of content is more meaningful when accompanied by the descriptive metadata that is its natural companion. As observed by others in this space (most recently here and here), there are barriers today to the free flow of legal information. As will be outlined below, hamstrung metadata is, unfortunately, one of them. This information — mundane details like the date, court, and party names of a legal decision, and the volume, journal, page or identifier used to locate it — are curiously hard for machines to find in the pages issued by any of the leading commercial services in the 40-year-old online legal information industry.

More than any fundamental difference in the materials themselves, captive metadata accounts for the striking gap that has emerged between the research tools available in law and in other disciplines. Driven by the needs of researchers in the sciences and the humanities, personal research platforms that thrive on metadata are now widely available: to make them servants of the law, they want only to be fed.

One element of this alternative infrastructure that depends on rich metadata provision is the Citation Style Language (CSL), which is the proper subject of this essay. The next three sections provide a short introduction to CSL, followed by a few observations on the state of legal metadata provision on today’s legal Internet. The essay concludes with a comment on some of the lights that seem to be flickering into view at the end of this particular tunnel, and on the prospective benefits of at last bringing the law within reach of a modern research support ecosystem.

About CSL

The Citation Style Language is an XML vocabulary for accurately describing citation and bibliography formats. Given the breath of life by the original Zotero citation formatter, CSL is now entering its eighth year of development, can boast two full production implementations, and drives citation formatting in at least six major bibliographic or text processing projects, with total user numbers in the millions.

The illustration to the right provides a simplified view of CSL processing flow. In greater detail it works like this:

A running copy of the processor is cast (“instantiated”) using the rules specified in a particular CSL style file.
The calling application sends fine-grained item metadata to the processor.
The processor registers data it receives, for the purpose of tracking the document context of each item.
The calling application sends a request for a citation or a bibliography listing. In the former case, the call will supply information about document state (note numbers and the like), and additional details specific to the request (such as a pinpoint page number).
The processor analyses the request, calculates any auto-generated item variables, and applies any disambiguation rules defined in the style to assure that item references are unique.
The processor returns the citation or bibliography listing as a serialized string in the language (such as English or French) and the markup format (such as XHTML or RTF) that it has been configured to deliver.

The upshot of all this swirling machinery is that generic metadata can be used to generate citations in arbitrary formats. In operation, this means that an article originally written according to, say, the Oxford Standard for Citation of Legal Authorities (OSCOLA) can be reformatted on the fly to conform to the requirements of, say, the McGill Guide, or perhaps the Australian Guide to Legal Citation (PDF) or the ALWD Manual. This functionality is used daily by researchers in most fields worldwide, and there is no reason the law should be an exception.

The automated generation of citations is just one benefit of this processing flow; it also enables the embedding of cited metadata directly in the source document (for sharing between collaborators), and it allows links to referenced resources to be attached at the point of production (for ease of referencing after publication). Hints of resistance from some quarters notwithstanding, such tools clearly promise to save law professors, law students, lawyers, court clerks, judges, and others who must do legal drafting a tremendous amount of time.

Formatting citations

There are a few commonly-encountered wrinkles in legal data and citation styles that CSL and the citeproc-js formatter have been carefully designed to address. To give readers a glimpse of this work, a few basic elements of the language are laid out below. We’ll begin with the following sample citation in the OSCOLA style: Jones & others v Wright [1991] 3 All ER 88.

The bare case name can be produced with the following construct:

<text variable="title" font-style="italic" strip-periods="true"/>

(Note the use of font-style=”italic” to render the variable content in italic type, and of the strip-periods=”true” attribute, which will be discussed below.)

The year element can be produced with the following code:

<date variable="issued" form="text" date-parts="year" prefix="[" suffix="]"/>

(Note the use of prefix and suffix.)

To build the full cite, we join these and other elements together by wrapping them in a group element and setting a single space as the delimiter. In the example below, we also define this construct as a macro, so that it can easily be reused in multiple contexts in the style:

<macro name="oscola-case">
    <group delimiter=" ">
        <text variable="title" font-style="italic" strip-periods="true"/>
        <date variable="issued"  form="text" date-parts="year"
              prefix="[" suffix="]"/>
        <number variable="issue"/>
        <text variable="container-title"/>
        <text variable="page-first"/>
    </group>
</macro>

If we want to use this cite form for English legal cases only, we can wrap it in a condition:

<choose>
    <if type="legal_case" jurisdiction="gb" match="all">
        <text macro="oscola-case"/>
    </if>
</choose>

(Note the type, jurisdiction and match attributes, and the use of a text node with a macro attribute to call our macro.)

With the code above, we will obtain something close to our target cite format if we arrange for the calling application to feed the processor JSON input like the following:

{
    "container-title": "All England Law Reports",
    "date": {
        "date-parts": [["1991"]]
    },
    "issue": "3",
    "page": "88",
    "title": "Jones & others v. Wright"
}

Looking carefully at this input, we can see that there are some small discrepancies in the metadata:

the period after the v; and
the full name of the reporter.

These details can be handled automatically in the processor. The first issue is trivial: quashing periods is a general requirement of OSCOLA, and this one will be removed by the strip-periods=”true” attribute that we set on the title element. The second issue requires a bit of further explanation.

Applying abbreviations

In our sample input, the journal name has been spelled out in full to avoid ambiguity. This is an example of best practice, although the field content does differ from our desired output of “All ER”. The current version of Zotero provides a journalAbbreviation field for each item, but this has known limitations, and is not suitable for legal writing.

Many styles require that commonly cited journal names, at least, be abbreviated. Some styles have mandatory and idiosyncratic abbreviation requirements. As Judge Posner commented recently (PDF) concerning the requirements of Bluebook: A Uniform System of Citation: It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it … There is no tax on letters, of course, but the lack of a truly uniform system of abbreviation means that such elaborate schemes impose a significant cost in their own right. In Zotero, if journal abbreviations are registered directly on individual items in the user’s personal library, they must be entered manually for each item, both when the original item is created, and each time the user wants to generate citations in a different style. This is not acceptable: metadata should be generic.

With a view to squaring the needs of users with those of the more demanding styles, the citeproc-js processor allows arbitrary abbreviation lists to be registered and managed on a per-style basis.

Here’s how it works. When the processor encounters a field that requests form=”short”, it looks for the field content in an externally-supplied abbreviation list derived from a small (persistent) database. If there is no match, the processor opens an empty entry for the field in its (ephemeral) run-time registry. In an application that draws on this functionality, the user can visit the run-time listing at any time, and enter suitable abbreviations. These are then registered in the persistent external database, where they are remembered for future use with the current style.

In our case, the user would enter “All ER” as the journal abbreviation, and the application would store and deliver auxiliary input like the following:

{
    "container-title": {
        "All England Law Reports": "All ER"
    }
}

Abbreviations list support has not yet been implemented in mainstream projects, but I have built a small Firefox add-on for use with Zotero that draws upon it, and I am happy to report that it does work, as advertised, both for journal abbreviations, and for other similar purposes (such as “hereinafter” support).

In our CSL code, invoking the abbreviation list machinery requires only a small change to the citation macro:

<macro name="oscola-case">
    <group delimiter=" ">
        <text variable="title" font-style="italic" strip-periods="true"/>
        <date variable="issued"  form="text" date-parts="year"
              prefix="[" suffix="]"/>
        <number variable="issue"/>
        <text variable="container-title" form="short"/>
        <text variable="page-first"/>
    </group>
</macro>

A full style will be more elaborate, but the basic logical structures are the same, with conditional statements used to select simple nested groups of nodes that describe the output to be produced.

I’ll draw a line under the technical discussion at this point, but you get the idea.

CSL is an elegant and expressive language that has grown under the tutelage of strict demands from academics and graduate students in many fields. The language is fully documented in the CSL Specification. The proposed extensions for full legal support, documented in the citeproc-js CSL Specification Supplement, have been carefully formulated, and I am open to feedback. Style development is proceeding apace, and increments and milestones are being reported through the CitationStylist.org website, which serves as a clearinghouse for legal and multilingual style development. From experience with the first target style for full implementation (the Creative Commons licensed OSCOLA), the prospects for CSL style support for legal resources that “disappears”, as such tools ought to do, are very bright.

Input from the Web

In addition to bringing us open-source community-driven citation formatting technology, Zotero offers one-click acquisition of content, to a full-featured personal electronic library on the user’s desktop. This is handy, even essential, in today’s world of overabundant information sources. It is facilitated by the fact that in most fields of study, aggregator sites have a long history of providing access to structured metadata from their pages.

The server-side technology that enables one-click content acquisition well predates the Internet. Libraries that run their catalogs on the 1980’s MARC standard or one of its variants can and often do expose these records to the Internet. Aggregators in the sciences typically provide BibTeX records, which researchers have relied upon since the original format was frozen in 1988. Booksellers and publishing consortia offer metadata keyed to ISBN numbers, and the publishers of academic and other journals participate in the DOI system for assigning unique IDs keyed to canonical metadata for individual articles. The world of academic discourse is swimming in rich, life-giving metadata. Until, that is, one arrives on the salted shores of the law, where there is no water, and precious little sand.

The metadata story on the paywalled sites is very straightforward: exposing it would not be in the vendor’s commercial interest, so there isn’t any. It’s hard to fault the logic. Even if we insist on the unflattering feudal analogy with which this essay opened, it’s worth remembering that Japan’s Shogunate endured for 250 years before finally giving way to change. Business opportunities don’t come much better than that, and one can hardly expect the leading providers to react any differently.

There is variety in the ecosystem, however, and not all suppliers of legal source are driven by the same pattern of economic incentives. Providers that expose their content with metadata stand to benefit from CSL and other infrastructure-in-waiting, which can significantly raise the real value of their service. To state the point more precisely: supplying fine-grained metadata is essential for a publisher’s content to be attractive to third-party reference management tools like Zotero — it’s important enough to be in the project’s guidance notes.

This is a separate point from the movement for universal or format-neutral citation formats. Promotion of these is also important, but from the perspective of data acquisition, they are not sufficiently uniform across jurisdictions to serve, by themselves, as primary metadata for a general research platform. As a well-intended example, consider this tag embedded in a case from CanLII:

<meta name="DC.Title"
      content="Smith v. Jones, 2003 CanLII 19166 (NWT RO)"/>

In order to register this item in a reference manager database, we need to know what each of the elements means. This will be obvious to a local practitioner, but a Zotero page translator would need to include hand-crafted pattern-matching functions to parse out the elements and assign them to field variables. If I were doing the coding (ignorant as I am of Canadian law), I would be stumped by several of these elements:

19166: From the size of the number, I guess that it is a document identification number, but if it were smaller, I might mistake it for a page number. That could result in my misclassifying the cite as one to a printed reporter, and that in turn could affect the formatting of pinpoint identifiers in styled output generated from the harvested data.
NWT: This appears to be a geographic identifier (Northwest Territories?), but I am not sure. I am also unsure whether such identifiers always appear in citations; whether or not they might include spaces, numbers, or other characters; and what the full set of possible identifiers looks like.
RO: This one has me completely stumped, so I would be mailing friends who might know something about Canadian law.

The answers would be obvious to a Canadian lawyer, of course, and with a bit of effort I could look up the details. But multiplied across the jurisdictions of the world, that is an effort that would prove fatal to the task. A meta tag containing a full formatted citation is better than nothing, but with fine-grained metadata and simple descriptive variable names for each of the elements, the code would practically write itself. It really does make all the difference.

A further issue concerns parallel references, which I mention here for the sake of completeness in ranting. In a world that offers an API to the entire fictional economy of Farmville, one would think that the various and sundry parallel citations to, say, Quackenbush v. US would be available as a simple machine-readable graph. But as we have seen, the leading paywalled providers don’t even supply the date of the decision in structured form, let alone parallel citation mappings: the data they publish is basically useless for this purpose.

The least-painful path at present is to visit Google Scholar with Zotero, and fetch the case from the hit listing (not from the case page itself). This yields a set of three cross-linked items that reflect the parallel reports of the case. One click and you’re away — but consider what happens behind the scenes: (1) the Zotero translator performs contorted screen-scraping of (2) the displayed citations in the Google listing, which (3) were in turn reverse-engineered from scanned source, and hence (4) cannot be trusted for 100% accuracy. It is a testament to human ingenuity that this is possible at all, but the underlying infrastructure is an embarrassing bundle of wet string.

Parallel references are tracked internally, of course, by the major service providers. Lack of user-side access to these mappings has the side effect (bizarre, from the standpoint of other fields) of placing uncommon importance on human-readable citations, because they are the only available means of identifying a given case across multiple data silos. Given current publishing arrangements, the problem is intractable, and for the present the best we can do on the reference management side is to provide means of recording these relations in personal libraries when they are identified by individual users.

In lieu of concluding

To end on a positive note, compliments are due to the growing number of publishers and dissemination initiatives that have gone the distance to expose well-structured metadata. In the CitationStyles.org project, my own immediate aim is to get the CSL output story into shape, and I confess that I have not followed recent (and some not-so-recent) developments as closely as I should. As styles firm up and field assignment conventions come to be settled, I’ll be looking forward to work (by others, as well as a bit myself) on serving the growing number of open-access legal publishers that provide structured metadata.

Zotero is a flexible feeder, and the specific format in which metadata is presented is less important than that it be separated into discrete fields. The meta field assignments in the Cornell LII Supreme Court judgments (CASENAME, DOCKET, DECDATE) serve the purpose. The BibTeX source served by Google Scholar works as well. The legislative metadata at legislation.gov.uk also works. The microformats metadata embedded in Federal cases on law.resource.org gives us enough to work with, and the very complete details in the RECOP material are quite useful when they are carried through in refactored pages (as they are in the Free Law Reporter served by CALI).

One of the benefits to be anticipated, as we make our way toward improved interoperation between publishers and third-party reference management tools for law, is a reduction in the barriers to collaboration between law and other disciplines. Legal citation conventions are by nature quite demanding, and removing some of their sting will improve access not only to the law itself, but also to participation in its discourse.

All signs of rain, and very welcome for grassroots projects like CSL.

Frank Bennett is Associate Professor in the Graduate School of Law at Nagoya University. His active projects related to legal informatics include the citeproc-js CSL processor, an experimental multilingual branch of the Zotero reference manager (MLZ), and the CitationStylist.org initiative for creating a CSL family of legal styles.

The CSL language was originally conceived by Bruce D’Arcus. The CSL 1.0 schema and specification are maintained by Bruce D’Arcus and Rintze Zelle.

(Readers should kindly note that despite Frank’s tasteful choice of hat in the photo to the left, the views expressed in this post are his own, and do not necessarily reflect those of Cornell University or the Cornell Legal Information Institute.)

Is it Time for Law Libraries to Collaborate on Description for Their Own Institutions’ Legal Scholarship?

Legal knowledge representation, Legal metadata, Legal ontologies, Legal publishing, Legal semantic web, Linked Data and law, Semantic annotation of legal texts, Semantic Web and law 2 Responses »

Sep 302011

Over the past couple of years, there has been a great deal of discussion — particularly in relation to the Durham Statement [1] — about technical standards and preservation issues for law reviews that publish openly and exclusively online. Other colleagues have already blogged or written more formally about the lack of metadata being produced in the production of law reviews, and about problems in indexing open access law journal literature. [2] In a previous VoxPopuLII post, Dr. Núria Casellas discussed the significance of semantic enhancement and how it affects how we should be thinking about providing access to legal information. [3] So I would like to marry the two discussions, by formally asking my academic law librarian colleagues whether the time has come for us to work together to develop an ontology [4], a substantive knowledge system that could be used by our law schools’ legal journals in “marking up” content for consumption on the Internet.

This ontology should be applied not only to what we think of as traditional law journal content, but also to “related” content — such as companion blogs, video, data, etc. This related content will inevitably grow, as what we think of as a “journal” evolves. Indeed, a typical “journal” will most likely look very different years from now than it does today. As members of the institutions that publish one of the major forms of literature in law, and as members of organizations that possess significant legal metadata and subject expertise, law librarians are uniquely positioned to facilitate the discoverability and utility of law reviews published on the Web. Such a project also has the potential to support additional projects such as new metrics and ways in which to look at scholarship.

If this system were indeed widely adopted, it could facilitate a type of access to law journal content that has not been accomplished with existing, centralized means of access, such as Google Scholar, the ABA’s project, and commercial databases. Ideally, I would like to see our community develop a cooperative that could provide a hosted technical infrastructure to be used by institutions that lack the financial or technical resources to invest in a major repository service or open source solutions. While this idea seems “utopian” at this point, I think that our community could realistically pursue standards and language for the more “substantive” aspects of the metadata, even if we are unable to agree on the ultimate solutions for preservation or platforms that “serve up” the content. Such an ontology could also serve as a precursor to even more ambitious, collaborative projects to make legal information more accessible and discoverable.

What do you mean by an ontology? Don’t you just mean a taxonomy or “shared vocabulary”?

I frame the idea as an “ontology project” because publishing on the Web has increasingly become about structured, open, Linked Data and marking up content for the Semantic Web [4]. As the significance of Linked Data grows, it is important for us to think about access to legal scholarship in terms of knowledge systems that contemplate access to information in those terms. The use of structured data/schemas in publishing law reviews would be optimized by human knowledge/expertise for the expression of ideas and language to be applied in that data. We need to think about subject access beyond the standard, familiar hierarchical “subjects” that we have come to use in our existing taxonomies, indexing, and classification systems. [5] We should be thinking about these “subjects” in a way that shows deeper interrelationships between concepts and “types” and that “interacts” and is “interoperable” with other systems. The ontology approach contemplates access to information from a variety of perspectives in relational and situational ways.

Law reviews could be published in a way that incorporates a particular ontology that could also be mapped to other ontologies. Linking ontologies in this way would yield useful connections across systems, bodies of knowledge, and perspectives, including multilingual thesauri, interdisciplinary knowledge, and practice-oriented and “pro se” consumer perspectives. Thinking about the project as an “ontology” also brings to mind three other important features of the system: (1) the “philosophical” definition of the term “ontology”; (2) the significance of “language” and subject expertise; and (3) the flexibility that would allow us to build something dynamic and responsive to the ever-changing nature of law. Such an approach contemplates the approach to legal information advocated in Dr. Casellas’s piece. [6]

Don’t legal indexes already do this? Why reinvent the wheel?

When some of these issues were raised last October at the workshop entitled “Implementing the Durham Statement: Best Practices for Open Access Law Journals”, someone asked why we should “reinvent the wheel” when other longstanding systems (e.g., law journal indexes) are already doing this. Most of these longstanding systems are based on paid subscription models and are not open in a way that facilitates rapid response to evolving developments in the law, or use by those who consume legal information. More importantly, this project would really be about facilitating publishing and improving access to online content by providing a quality, substantive, open knowledge structure for journals to use for marking up content and building access into publication. This project would not be an attempt to displace or “usurp” indexes which focus on access to content from the “outside” perspective of the publication itself (and which are increasingly concerned with marketable enhancements like full-text access, search features, user interface, Web 2.0 functionality, etc.).

The “wheels” we might be accused of reinventing also include “federated searching” and Web-scale discovery systems being purchased by libraries, but I think similar arguments about cost, perspective on the content, and scope would still apply. Development of our project and adoption of Web-scale discovery systems are not mutually exclusive. Web-scale discovery systems could potentially integrate and map to our system. In any event, the point is not to “throw out“ existing systems, but to create an additional knowledge structure that is open and potentially informed by and interoperable with other existing systems.

How would we proceed?

There are many approaches to ontology development [7], including derivation from or text-mining of legal texts [8], top-down development by humans, and building upon or extracting from existing ontologies. [9] Any of these methods (or a combination thereof) could work in the case of developing an ontological structure that could be applied to law review content.

A “top–down” approach based on the knowledge of individuals could start with librarians. But it should also involve working with law school faculty and scholars having expertise in particular subject areas, as well as with authors of law journal articles, and editors of law journals themselves (particularly those focusing on specialized legal topics). [10] Each law school has faculty and librarians who possess specialized legal subject knowledge — as well as collections in particular areas of law — that could enrich the project. In addition to contributing their substantive knowledge, librarians would have an opportunity to develop a language and a system that reflect how they think about and look for information.

Other colleagues have already suggested greater engagement with law school faculty, for purposes of learning about how faculty conduct and think about research. [11] A project like this would give us the opportunity to engage our stakeholders respecting how they think about, contextualize, and relate topics. (Perhaps we could learn more about the way law library stakeholders think about information by presenting them with samplings of articles, and inquiring as to how the stakeholders would “expect” to find those articles.) Instead of forcing those knowledgeable about their field to learn the taxonomy and structure we have been given by traditional systems, we would be harvesting the expertise of those subject specialists in order to create richer metadata that contemplates their habits and knowledge. Faculty, authors, and journal editors with subject expertise coupled with law librarians could potentially provide a very sophisticated, dynamic, and responsive system.

We should also consider looking at existing ontologies and other systems, including Library of Congress and other popular and relevant systems used in law. There are several ontologies related to law that could inform the project and that could also potentially be mapped. [12] Systems to be consulted (and mapped) could include ontologies designed for primary law and local knowledge management in legal settings, as well as ontologies in subject areas outside the law. Also, some law schools might have their own local systems that could inform ours.

Finally, while we would probably want to avoid using text mining as the only method, the project should also contemplate doing some mining and extraction from law journal literature itself. Such an approach might be particularly helpful in grappling with older legal concepts and appreciating the use of certain terms/language over time.

Whatever method(s) we select, we have a host of inspiration from other projects in legal informatics and from projects in other disciplines (particularly in the sciences) that strive to provide naming conventions within disciplines, and map knowledge across systems through coordinated efforts. Although it is a much more ambitious project than ours, John Willbanks’ Neurocommons project provides us with a model of how such a project could garner participation and grow, particularly if we were to coordinate with other projects and ontologies being developed. [13]

If we build it, who will use it?

If we do develop such a system, who would actually apply it in publishing law reviews? Hopefully, libraries will take the lead and realize that this is a role that they themselves should be fulfilling. While many libraries facilitate repositories and other platforms for publishing law journals and provide training and reference/research support for cite checking and preemption, many do not provide markup and metadata work on the articles themselves. In a recent survey by Benjamin Keele and me in relation to a paper we have been writing, only 1 in 57 respondents reported doing any work on article metadata for their journals. [14] Librarians are already cataloging books and spending time grappling with metadata development and changes in the ways in which we describe our cataloged resources (RDA, FRBR, etc.). Further, librarians today spend a lot of time and money purchasing or building “repositories” or other platforms for their law journals. Greater support of metadata development for our own institutional output (beyond provision of simplistic taxonomies) is a natural outgrowth of such activities. As other librarians have commented, providing institutional repositories is not sufficient. [15]

Such activity could contemplate new roles for catalogers. A recent NISO Webinar on the impact of Linked Data on library cataloging suggested that library catalogers will be less focused on creating “records” and more concerned with “graphs”. The presenters commented that catalogers will enhance the increasing amount of minimal metadata coming directly from publishers, and provide access to original and local content. [16] Some libraries have already integrated metadata work into their workflows for cataloged resources, and it is possible for a law library to integrate journal work into its technical services workflow. [17] From a reference perspective, librarians are already often exposed to journal content in the early stages of publication through support of preemption checking, student note/comment research help, and cite checking support. Librarians are thereby in a good position to understand the “aboutness” of the content. Such involvement could provide law librarians with a natural progression toward being more involved in helping journals “mark up” their content. It is an opportunity for us embrace more wholeheartedly the role of law libraries as publishers and knowledge managers. Many of our colleagues in the open law movement, in knowledge management in legal practice, and in other disciplines have made forays into this area. [18]

Some would probably argue that libraries do not have sufficient staff to get involved in law journal publishing activities, particularly in markup. In addition, some institutions have entire offices outside the library that support publication activities. Even if libraries feel that they are not in a position to manage the workflow of the application of this knowledge system, the most important contribution librarians can make lies in expertise or intellectual input. Application of this ontology could also be performed by law students themselves or other law school staff. Further, authors themselves are potential users and providers of metadata. In many other disciplines, especially the sciences, more authors are using author add-in tools and other software programs to help mark up their manuscripts for publication. Specialized tools could be developed to facilitate authors’ adding metadata to their own law review articles. (Many law authors are already used to contributing keywords to SSRN papers.)

“But…”: Obstacles and opportunities

As I write this piece, I anticipate comments such as, “That would be too big of an undertaking,” and: “Is that really our role?” While libraries are feeling the pressure of more limited resources and time, I would argue that this project would synergize with libraries’ existing interactions with our primary users (faculty and students) and could be built into other outreach activities. In the end, it could actually help to create an organic system responsive to users’ needs. Pursuing this project in tandem with other coordinated activities to facilitate open access law journals, law librarians would join many of our university library colleagues in thinking of ourselves in the role of producer/publisher and in providing new opportunities for our library staff (both technical services and reference/subject specialists).

I envision a host of other issues and problems (too many to enumerate in this posting) that might arise in relation to a project such as this, but I consider none of them “insurmountable.” Below is a sample of some issues that come to mind:

Coordination/governance: Who would control the project? Who would be the final arbiter of what is adopted? Past discussions of the Durham Statement have suggested the possibility of an organization providing support for journals that tried to “comply” with the Durham Statement. [19] Such an organization might consider taking on a project such as this. Perhaps leadership for this project could evolve in some way out of institutional and personal relationships, such as those that have evolved for collection development, [20] or possibly through some coordinated efforts of American Association of Law Libraries (AALL) Special Interest Sections (particularly ALL-SIS, TS-SIS, and RIPS-SIS). If our own institutions are not willing to support such a project, individual librarians on their own (myself included!) might be willing to contribute time and energy to the project. We are also fortunate to have a supportive community of technologists in the open law and knowledge management fields, who could serve as potential partners. The important aspects of the project are that it should be owned by an entity with diverse representation and interests, and that it should be established as something that will be free.

Target content and scope: Would we be framing subjects as they tend to exist in U.S. law review literature? While the structure would be designed for use by law reviews, if it were kept open and without restrictions, it could potentially be adopted by peer-reviewed journals and mapped to other indexing systems, either through Web-scale discovery or other systems. How do we frame an ontology that contemplates incorporation of multiple legal systems and relation to multiple languages? How do we deal with the translation issues that may arise? How would the ontology map to other systems and multilingual thesauri? Should we be contemplating ontologies in other disciplines that have addressed these issues?

Could it be for naught? One might ask, “If we build it, will they come?” Even if provided with such a system (as well as other best practices and support), would law reviews actually adopt it? Even if they do not apply such a system to their data structures, the substantive system that evolves could also be applied from the “outside” by third parties if the content itself is open. While one could argue that this would truly be “reinventing the wheel” in duplicating the efforts of existing indexing systems, one could argue alternatively that the scope, nature, and openness of the resulting system would offer a unique contribution to the indexing environment and would at least provide an additional alternative to the existing systems.

Technical questions: Which particular tools should we use to work collaboratively? What machine-readable formats would we contemplate using? How would we deal technically with systemic changes to the ontology and its application? There is a long list of tools and formats suitable for this project, and of methods for dealing with changes to metadata resources such as ontologies.

How would we contemplate application of this ontology in existing publishing platforms? What tools would we contemplate journals using to mark up documents with metadata from the ontology? Many of the repositories and platforms libraries are currently using permit enhancement of metadata with keywords, user-generated tags, or existing basic subject categories. But existing repositories and platforms do not necessarily facilitate markup that is optimized for the Semantic Web.

Who is the audience? Who is looking for such an ontology? If the language and concepts are at least in part based on the needs and knowledge of our faculty and students, do we develop something tailored to their use instead of developing something that serves broader norms? How could we take into consideration how others (pro se’s, court personnel, etc.) might be looking for information, and map or relate our ontology to other systems that incorporate those users’ perspectives? How could we develop an ontology that contemplates relating to primary law?

Rights issues: Are there rights issues involved in adaptations or derivations of others’ ontologies? How would we want to handle rights issues/licenses respecting the ontology that we develop? [21] Hopefully, the answer is freely and openly!

So what do you think?

Hopefully, this post will spur a discussion that could be continued on this blog or in another forum. In any event, law libraries should be rethinking their roles in the production of law review metadata. Law libraries should be considering how the evolution of the Semantic Web and cataloging standards might impact how they provide support for their own institution’s journals.

NOTES

This post is based in part on two draft papers: Benjamin Keele and Michelle Pearse, How Law Libraries Can Help Law Journals Publish Better (poster session presented during the 2011 AALL Annual Meeting in Philadelphia, PA on July 23-26, 2011), and Michelle Pearse, Whither the Future of Law Journal Indexing?.

[1] Richard A. Danner, Kelly Leong, and Wayne Miller, The Durham Statement Two Years Later: Open Access in the Law School Journal Environment, 103 Law Library Journal 39, 52 (2011), http://scholarship.law.duke.edu/faculty_scholarship/2358/; Implementing the Durham Statement: Best Practices for Open Access Law Journals Conference, http://www.law.duke.edu/libtech/openaccess/conference2010 (October 22, 2010).

[2] Tom Boone, Librarians Key to Open Access Electronic Law Reviews, http://tomboone.com/library-laws/2009/09/librarians-key-open-access-electronic-law-reviews (September 3, 2009) ; Sarah Glassmeyer, Getting to Durham Compliance, SarahGlassmeyer(Dot)Com, http://sarahglassmeyer.com/?p=442 (April 26, 2010); Edward T. Hart, Indexing Open Access Law Journals…or Maybe Not, 38 International Journal of Legal Information 19 (2010), http://scholarship.law.cornell.edu/ijli/vol38/iss1/5/.

[3] Dr. Nuria Casellas, Semantic Enhancement of Legal Information: Are We Up for the Challenge?, VoxPopuLII, http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/ (February 15, 2010).

[4] Some resources related to this topic appear at http://schema.org and http://linkeddata.org. Some argue that the Semantic Web might already be ill-fated: Janna Quitney Anderson and Lee Rainie, The Fate of the Semantic Web, http://www.pewinternet.org/~/media//Files/Reports/2010/PIP-Future-of-the-Internet-Semantic-web.pdf (Pew Research Center 2010). Tom Gruber defines an ontology as “a specification of a conceptualization”: http://www-ksl.stanford.edu/kst/what-is-an-ontology.html; Tom Gruber, in the Encyclopedia of Database Systems, Ling Kiu and M. Tamer Ozsu (Eds.), Spring-Verlag, 2009 http://tomgruber.org/writing/ontology-definition-2007.htm and http://semanticweb.org/wiki/Ontology. Joost Breuker and colleagues elaborate: “The term ‘ontology’ may have different meanings: (i) philosophical discipline; (ii) informal conceptual system; (iii) a formal semantic account; (iv) a specification of a conceptualization; (v) a representation of a conceptual system via logical theory, (vi) the vocabulary used by a logical theory, (vii) a meta-level specification of a logical theory.” J. Breuker et al., “The Flood, the Channels and the Dykes,” in Joost Breuker, Pompeu Casanovas, Michael C.A. Klein and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channeling the Legal Information Flood (IOS Press 2009), at 11. Adam Wyner defines “ontology” in the following way: “An ontology represents a common vocabulary and organization of information that explicitly, formally, and generally specifies a conceptualization of a given domain. Ontologies are related to knowledge management (cf. Rusanow’s ‘Knowledge Management and the Smarter Lawyer’) and taxonomies (cf. Sherwin’s article ‘Legal Taxonomies’). But an ontology is a more specific, explicit and formal representation of knowledge than provided by KM [knowledge management]; and it is richer and more flexible than a taxonomy….In making an ontology, one turns tacit expert knowledge into explicit representations that can be shared, tested and modified by people as well as processed by a computer.” Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009). Dr. Núria Casellas gives a good explanation of the Semantic Web and ontologies: Dr. Núria Casellas, Semantic Enhancement of Legal Information: Are We Up for the Challenge? http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/ (February 15, 2010).

[5] Christopher A. Welty and Jessica Jenkins, Formal Ontology for Subject, 31 Journal of Knowledge and Data Engineering 155 (1999) (also available at http://www.cs.vassar.edu/~weltyc/papers/subjects/subject.html); Hope A. Olson, The Power to Name: Locating the Limits of Subject Representation in Libraries (Kluwer Academic Publishers, 2002); Knowledge Representation with Ontologies: Present Challenges – Future Possibilities, 65 International Journal of Human-Computer Studies 563 (2007), doi: 10.1016/j.ijhcs.2007.04.003.

[6] “In the subfield of computer science and information science known as Knowledge Representation, the term ‘ontology’ refers to a consensual and reusable vocabulary of identified concepts and their relationships regarding some phenomena of the world, which is made explicit in a machine-readable language. Ontologies may be regarded as advanced taxonomical structures, where concepts are formalized as classes and defined with axioms, enriched with description of attributes or constraints, and properties.” Dr. Núria Casellas, Semantic Enhancement of legal Information: Are We Up for the Challenge? http://blog.law.cornell.edu/voxpop/2010/02/15/semantic-enhancement-of-legal-information%e2%80%a6-are-we-up-for-the-challenge/. See also Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009) (suggesting Web-based collaborative ontology development where legal professionals contribute to a free, open ontology for law); Dr. Adam Z. Wyner, Weaving the Legal Semantic Web with Natural Language Processing, VoxPopuLII, http://blog.law.cornell.edu/voxpop/2010/05/17/weaving-the-legal-semantic-web-with-natural-language-processing/ (May 17, 2010).

[7] Bill Cope, Mary Kalantzis and Liam Magee, Towards a Semantic Web: Connecting Knowledge in Academic Research (Chandos Publishing 2011), at 72 (noting several studies on investigating approaches and software); A Holistic Approach to Collaborative Ontology Development Based on Change Management, 9 Web Semantics: Science, Services and Agents on the World Wide Web 299 (2011), doi:10.1016/j.websem.2011.06.007; “Ontologies can be designed by means of methods such as…encompassing top-down expertise elicitation from humans, bottom-up learning from documents, and middle-out application of design patterns, which can be specialized from domain-independent ontologies, extracted from best practices, existing ontologies or other knowledge sources, as well as learnt from conceptual invariances found in experts’ documents.” Aldo Gangemi, “Introducing Pattern-Based Design for Legal Ontologies,” in Joost Breuker, Pompeu Casanovas, Michel C.A. Klein and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channelling the Information Flood (IOS Press, 2009), at 53.

[8] Enrico Francesconi, Semantic Processing of Legal Texts: Where the Language of Law Meets the Law of Language (Springer 2008).

[9] “Creating and developing ontologies requires domain expertise and the ability to capture this knowledge in a clean conceptual model.” Roberta Cruel, Olga Morozova, Markus Rhode, Elena Simperl, Katharina Siorapes, Oksana Tokarchuk, Torben Wiedenhoefer, and Fahri Yetim, Motivation Mechanisms for Participation in Human-Driven Semantic Content Creation, 1 International Journal of Knowledge Engineering and Data Mining 331 (2011), doi: 10.1504/IJKEDM.2011.040653.

[10] This approach of working with faculty and other scholars from the legal academy would be similar to the “socio-legal” referenced by Dr. Casellas in her post regarding her Institute of Law and Technology project. Dr. Adam Z. Wyner has also advocated web-based collaborative ontolology development where legal professionals contribute to a free, open ontology for law. Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web”, Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009).

[11] Stephanie Davidson, Way Beyond Legal Research: Understanding the Research Habits of Legal Scholars, 102 Law Library Journal 561 (2010), http://www.aallnet.org/main-menu/Publications/llj/LLJ-Archives/Vol-102/publljv102n04/2010-32.pdf; Richard A. Danner, Supporting Scholarship: Thoughts on the Role of the Academic Librarian, 39 Journal of Law & Education 365-386 (2010), http://scholarship.law.duke.edu/faculty_scholarship/2071/ .

[12] Robert Richards, Legal Information Systems & Legal Informatics Resources: Knowledge Representation: Legal (Selected) http://www.personal.psu.edu/rcr5122/Ontologies.html; Robert Richards, Legal Information Systems & Legal Informatics Resources: General Resources for Application to Law, http://www.personal.psu.edu/rcr5122/OntologiesGeneral.html; Joost Breuker, Pompeu Casanovas, Michael C.A. Klein, and Enrico Francesconi, eds., Law, Ontologies and the Semantic Web: Channeling the Legal Information Flood (IOS Press 2009), at 12 (table of 23 ontologies).

[13] Alan Ruttenberg et al., Life Sciences on the Semantic Web: The Neurocommons and Beyond. Briefings in Bioinformatics, 10(2): 193-204 (2009), doi: 10.1093/bib/bbp004 (“The NeuroCommons project seeks to make all scientific research materials – research articles, knowledge bases, research data, physical materials – as available and as usable as they can be. We do this by fostering practices that render information in a form that promotes uniform access by computational agents – sometimes called ‘interoperability’. We want knowledge sources to combine easily and meaningfully, enabling semantically precise queries that span multiple information sources.”).

[14] Benjamin Keele and Michelle Pearse, How Law Libraries Can Help Law Journals Publish Better (poster session presented during the 2011 AALL Annual Meeting in Philadelphia, PA on July 23-26, 2011, http://scholarship.law.wm.edu/libpubs/25/).

[15] Tom Boone, Librarians Key to Open Access Law Reviews, http://tomboone.com/library-laws/2009/09/librarians-key-open-access-electronic-law-reviews (September 3, 2009).

[16] NISO/DCMI, International Bibliographic Standards, Linked Data and the Impact on Library Cataloging (Webinar), http://www.niso.org/news/events/2011/dcmi/linked (August 24, 2011).

[17] Valeri Craigle, Legal Scholarship in the Digital Domain: A Technical Roadmap for Implementing the Durham Statement, Technical Services Law Librarian, at 1 (December 2010), http://www.library.illinois.edu/archives/e-records/aall/8501591a/news/TSLLdecember2010.pdf.

[18] See Dr. Adam Z. Wyner, “Legal Concepts Spin a Semantic Web,” Law Technology News, http://www.law.com/jsp/lawtechnologynews10/PubArticleLTN.jsp?id=1202431256007&slreturn=1 (June 8, 2009) (suggesting Web-based collaborative ontology development where legal professionals contribute to a free, open ontology for law).

[19] Wayne Miller, A Foundational Proposal for Making the Durham Statement Real, http://scholarship.law.duke.edu/faculty_scholarship/2325/ (suggesting founding an organization “whose mission is to guarantee the ongoing viability and availability of all publications that adhere to the Durham Statement’s call to action, hereinafter called the Durham Statement Foundation.”); Richard A. Danner, Kelly Leong and Wayne Miller, The Durham Statement Two Years Later: Open Access in the Law School Journal Environment, 103 Law Library Journal 39, 52 (2011), http://scholarship.law.duke.edu/faculty_scholarship/2358/ (noting that the Durham Statement “calls for law schools to end print publication in a planned and coordinated effort led by the legal education community”).

[20] Some examples include the Northeast Foreign Law Libraries Cooperative Group and “B2F2” (currently in the process of being the process of being renamed) with Boston area law librarians.

[21] John Wilbanks, “Licensing and Ontologies: Research from Creative Commons,” http://ontolog.cim3.net/file/work/IPR/OOR-IPR-01_IPR-landscape_2010-09-09/licensing-n-ontologies–JohnWilbanks-CC_20100909.pdf (September 9, 2010).

Michelle Pearse is the Research Librarian for Open Access Initiatives and Scholarly Communication at the Harvard Law School Library where she manages implementation of the law school’s open access policy for its faculty, and other projects related to scholarly communication and open access to legal information and scholarship. She is also involved in efforts to archive born-digital content for the collection, and provides research services to faculty and staff.

Universal Citation for State Codes

Competition in legal publishing, Digital legal publishing, Disruptive legal technology, free access to law, Innovation in legal technology, Legal citation, Legal citations, Public access to legal information 8 Responses »

Sep 012011

Source: AALL Universal Citation Guide (First Edition).

In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens’ access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.

A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states. Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.

To remedy this problem, we (and others) propose applying a system of vendor neutral (universal) citation to all primary legal source material, starting with the state codes. Assigning a universal, uniform identifier for state codes will make them easier to find, use, and cite. While we do not expect an immediate endorsement from The Bluebook, we hope that once these citations find their way into the stream of information, people will use them and states will take notice. We think it’s time to bring disruptive technology to bear on the legal information industry.

About Universal Citation

“Universal citation” refers to a non-proprietary legal citation that is applied the instant a document is created. “Universal citation” is also called a “vendor-neutral,” “media-neutral,” or “public domain” citation. Universal citation has been adopted by sixteen U.S. states in order to cite caselaw, but universal citation has not yet been applied to statutes by any state. A review of universal citation processes for caselaw is helpful in understanding how we may apply universal citation to statutes.

Briefly, a case follows this process before appearing as an official reported decision:

When issuing a written decision, a court first releases a draft called a slip opinion, which is often posted on the court’s Website. Private publishers then republish the slip opinion in various legal databases. A party can cite the slip opinion using a variety of citation formats, depending on the database.

Afterwards, the court transmits the slip opinion to the jurisdiction’s Reporter of Decisions, who may be a member of the judicial system or a private company. The Reporter edits the opinions, and then collects and reprints them in a bound volume with a citation. To cite a particular page within a case, which is also referred to as pinpoint citation, a party cites the case name, the publication, the volume, and the specific page number that contains the cited content.

Before the advent of electronic publishing, these books were the primary source for legal research. And, while publishers still print cases in book format, the majority of users read the cases in digital form. However, opinions in online database lack physical pages. To address this, online publishers insert page numbers into the digital version of an opinion to correspond to page breaks in the print version. Thus, the pinpoint citation (or star pagination) for an opinion, whether in print or online, is the same.

Under most court rules, and Bluebook guidance, once the official opinion is published, the Reporter citation must be used (see Bluebook Rule 10.3.1).

The decisions are published by a private company, usually Thomson West, and anyone wanting to read them must license the material from the company. Thus, if you want to cite to judicial law, you must pay to access the Reporter’s opinions. (Public law libraries offer books and database access, but readers must visit the physical library to use their resources. Google Scholar also provides free access to official cases online, but they must pay to obtain and license the opinions. In other words, Google, not the end user, is paying for the access.)

Universal citation bypasses the private publisher, and allows courts to create official opinions immediately. Under this system, judges assign a citation to the case when they release it. They insert paragraph numbers into the body of the opinion to allow pinpoint citation. This way, the case is instantly citeable. There is no intermediary lag time between slip and official opinion where different publishers cite the case differently, and there is no need to license proprietary databases in order to read and cite the work. In the jurisdictions that have adopted this system, the court’s opinion is the final, official version. Private publishers may republish and add their own parallel citations, but in most jurisdictions the court does not require citation to private publishers’ versions. (However, Louisiana and Montana require parallel citation to the regional reporter.)

The American Association of Law Libraries (AALL) developed the initial standards for vendor neutral citation formats. AALL published the Universal Citation Guide in 1999, and released an updated edition in 2004. The Bluebook adopted a similar scheme in Rule 10.3.3 – Public Domain Format. Under this format, a universal citation should include the following:

Year of decision
State’s 2-letter postal code
Court name abbreviation
Sequential number of the decision
“U” for unpublished cases
Pinpoint citation should reference the paragraph number, instead of the page number

The majority of states employing universal citation follow the AALL/Bluebook standard, but a few have adopted their own styles. (Illinois, Louisiana, Mississippi, New Mexico, and Ohio employ universal citation but use a different format than the AALL/Bluebook recommendation.)

Most states that use universal citation adopted it in the 1990s. Cornell Law Professor Peter Martin details these events in his article Neutral Citation, Court Websites, and Access to Authoritative Caselaw. Professor Ian Gallacher of Albany Law School has also written about the history of this movement in Cite Unseen: How Neutral Citation and Americas Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. To date, 16 states assign universal citations to their highest court opinions. (To date, Arkansas, Illinois, Louisiana, Maine, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming have adopted universal citation for caselaw.) Illinois is the most recent state to adopt the measure (in June 2011), and the concept has been gaining traction in the legal blogosphere. John Joergensen at Rutgers-Camden School of Law started a cooperative effort called UniversalCitation.org this summer.

Universal Citation and State Codes

Applying universal citation to state statutes can provide the same benefits as to caselaw, making statutes easier to find and cite, and improving access. While all states publish some form of their laws online for the public, as Ed has noted, these versions of state laws are often burdened by copyright and licensing restrictions. With these restrictions in place, users are not free to reuse, remix, or republish law, resulting in stifled innovation and external costs associated with using poorly designed Websites that take longer to search.

Though the AALL provides guidance on universal citation for statutes, no state has adopted it. The Bluebook does not specifically reference universal forms of citations for statutes and generally requires citation to official code compilations. There are exceptions for the digital version of the official code, parallel citations to other sources, and the use of unofficial sources where they are the only available source. (Bluebook Rule 12 provides for citation to statutes, generally. The Bluebook addresses Internet sources in Rule 18.)

The AALL’s Universal Citation Guide provides a schema for citing statutes in a neutral format. Rules 305-307 lay out standardized code designations, numbering, and dating rules, and each state has a full description in the Appendices. Basically, the format uses the state postal code, abbreviations for the name of the statutes (Consolidated, Revised, etc.), and a date.

As a result, the universal citations look similar to the official citations.

The AALL universal citation uses a name abbreviation for the state name and the name of the statute compilation. AALL’s format does not use periods in the abbreviations. It also uses a different convention for the year. The Guide’s recommendation is to date the code by a “legislative event,” to make the date more precise. Using “current through” dating provides a timestamp for the version of the code being used. This approach is less ambiguous than listing simply the year.

States like California and Texas have very large, segmented code systems with more complicated official citation schemes. The AALL mirrors these with the universal version, giving each subject matter code an abbreviation similar to the one used by The Bluebook.

Universal citation does not designate whether the code version is annotated, and of course it does not mention the publisher of the source.

Experimenting with Universal Citation

Justia is now applying the AALL’s universal citation to the code compilations on our site. We add this citation to the most granular instance of the code citation, along with a statement identifying and explaining it. So far, we’ve added citations to the state codes of Hawaii, Idaho, Maine, and South Dakota.

We started with Hawaii. The official citation and the universal citation are fairly similar:

Official: Haw. Rev. Stat. § 5-9 (2010)
Universal: HI Rev Stat § x-x (2010 Reg Sess)

This is how the code looks on the Hawaii Legislature’s site:

This is how the code section looks on Justia. We added the citation right above the text of the statute.

On our site, the full citation is visible, so readers can quickly identify and cite to it. The “What’s This?” link next to the citation explains the universal citation.

We used the Legislature’s site to determine the date.

We also added the universal citation to the title tags. This allows search engine users to see the universal citation in their search results. It makes the search results more readable, because the text of the statute name appears next to the citation. For example, compare a search for “Haw Rev Stat 5-9”

with “HI Rev Stat 5-9”:

With the search results for the universal citation (properly tagged), more information about that citation is presented. This helps the user quickly identify and digest the best search results.

We hope to accomplish three objectives by attaching universal citations to our codes. First, we want to give people an easy way to cite the code without having to look at proprietary publications. Not all citation goes into legal briefs or other documents that require formal citation to “official” sources listed by The Bluebook. The AALL universal citation scheme is easy to read and understand, and uses familiar abbreviations (like postal codes). Providing a citation right on the page of the code section will help people talk about, use, and cite to code sections without having to access “official” sources behind a paywall.

Second, we hope to demonstrate that universal citation can be applied in an easy and straightforward manner. The AALL has already developed a rigorous standard for universal citation; we are happy to use it and not reinvent the wheel. Legal folks here at Justia researched the AALL citation and the proper year/date information, and programmers applied the citation to the corpus. Anyone can do this, including the states.

Third, we want to encourage the adoption and widespread use of vendor-neutral citation schemes. There’s been a lot of talk about vendor-neutral citation for caselaw, and we are excited by efforts like UniversalCitation.org. Applying these principles to state codes will help get universal citation into the stream of legal information online. Just seeing the citation and the “What’s This?” page next to it will introduce readers to the concept. The more people use universal citations for state statutes, the more states will be forced to examine their reliance on third party publishers as the “official” source.

Next Steps

We plan to apply the universal citation to all of the codes in our corpus, but we have encountered some obstacles to achieving this for all 50 states. First, some of the codes are quite large and difficult to parse. Ari Hershowitz has documented his efforts to convert the California code into usable HTML. States like California, Texas, and New York will be more labor intensive. Second, the currency, or timestamp, is not always readily apparent on the state code site. With Idaho, I had to make a call to the Legislative Office to find out exactly when they last updated the code.

Source: AALL Universal Citation Guide (First Edition).

The third, and perhaps most troubling, issue is the “unofficial” status of the online state code repositories. With the exception of a few states (see Colorado), the codes hosted on the states’ own Websites are papered over with disclaimers about their authenticity. While I understand the preference for “official” sources when citing a code, there seems to be no good reason why the official statutes of any state are not available online, for free, for everyone. These are the laws we must obey and to which we are held accountable. Does the public really deserve something less than official version? The states are passing the buck by disclaiming all responsibility for publishing their own laws, and relying on third-party publishers, which charge taxpayers to view the laws that the taxpayers paid for. I hope that as we apply a universal citation to our state statutes, the law will become more usable for the public. By taking disruptive action and applying these rules to our large corpus of data, we hope that more people will see the statutes and cite using universal principles, and that the states will take notice.

We have assigned a universal citation to the first few states as a proof of concept. We will also be sharing our efforts by supplying copies of the code with the universal citations included for bulk download at public.resource.org. As we move forward with the remaining 46 states, we would love your input. Comment here or contact me directly with your thoughts.

Peace and Onward.

[Editor’s Note: For other VoxPopuLII posts on universal citation and the status of content in legal repositories, see Ivan Mokanov’s post on the Canadian neutral citation standard, and John Joergensen’s post on authentication of digital legal repositories.]

Courtney Minick is an attorney and product manager at Justia, where she works on free law and open access initiatives. She can be found pushing her agenda at the Justia Law, Technology, and Legal Marketing Blog and on Twitter: @caminick.

Reaching Sustainability of Free Access to Law Initiatives

free access to law, Legal information institutes, Public access to legal information 3 Responses »

Aug 152011

In May of this year, one of us wrote a post discussing two research projects being conducted at the University of Montreal’s Chair in Legal Information. One of those projects, known by its team as the “Free Access to Law – Is It Here to Stay?” Project, has just concluded. This co-authored post is about that project, the stories we heard throughout conducting the research, and what we can learn from those stories about sustaining legal information institutes (LIIs) — a concern that came up on many occasions at this year’s Law via the Internet Conference in Hong Kong, and again in the blogosphere in Eve Gray’s recent post, and Sean Hocking’s post on Slaw, among others.

The first section of this post — written by Isabelle Moncion of Lexum — is about the “Free Access to Law – Is It Here to Stay?” project as a whole, and the second portion, written by AfricanLII co-founder Mariya Badeva-Bright, focuses on lessons learned as applied to The African Legal Information Institute (AfricanLII).

First, a few words about the methodology of the “Free Access to Law – Is It Here to Stay?” project. In 11 countries and regions –- Burkina Faso, Hong Kong, India, Indonesia, Kenya, Malawi, Mali, Niger, the Philippines, South Africa, and Uganda –- researchers under the coordination of the Chair in Legal Information, AfricanLII, and the Centre for Internet and Society interviewed users of Free Access to Law (FAL) services, and practitioners who create and maintain those services, for purposes of building case studies on one FAL initiative per country. The research was guided by the Local Researcher’s Methodology Guide, which among other things asked the question, “What determines the sustainability of operations of Free Access to Law initiatives?” Along with the case studies (available here, published in the language in which they were written), a Good Practices Handbook (humbly renamed “Good” rather than “Best,” as stories from the FAL initiative showed that unfortunately, but not surprisingly, an always-successful series of practices does not exist) was written based on the results found in the case studies. The handbook will be online soon.

Do check out the case studies and good practices to find out more, as they will be able to provide you with much more in-depth analyses than we can provide in this post. But for now, allow me (Isabelle Moncion) to share a few stories and observations, and perhaps a preview of some good practices, before Mariya shows how these stories can be applied to building new, and supporting existing, LIIs.

PART 1 Sustainability… isn’t just about funding –

This statement is as much a conclusion from the case studies as it is the result of group discussions — held prior to the field research — devoted to defining “sustainability.” Did sustainability mean how we fund LIIs, or was it start-to-finish practices leading to that funding? We went with the latter, and field stories showed that that was the right choice.

Organisational capacity is pivotal to a FAL initiative’s capacity to stick around. In Mali, funding wasn’t so much the issue: the FAL site disappeared when the student intern who had decided to launch the site — after noticing the immense quantity and quality of legal information available at the NGO where he was working, and concluding that this information should be made available online — completed his internship. In Indonesia, funding is without a doubt a challenge, but the Indonesian FAL site currently depends on a single individual, who is unable to devote the time required to maintain the site. The situation is similar in Niger, where the editor must go from court registry to court registry with an external hard drive to collect judgments. The Hong Kong Legal Information Institute‘s (HKLII’s) team is also small, but thanks to a judiciary-supported workflow, the team has been able to offer its users a high quality, reliable service. The Southern African Legal Information Institute (SAFLII) case study further demonstrates that organisational capacity facilitates response to financial crises. To quote from the Good Practices Handbook, “… it is important to build redundancy and transfer knowledge to ensure continuity even on tight budgets. Having a meaningful internship programme with intense mentoring covering the two core skill areas of IT [information technology] and content management, coupled with good documentation, could contribute enormously to the viability of the FAL initiative.”

Organisational capacity also means knowing where one is headed. How many FAL initiatives did we encounter, whose personnel told us their objective is to “reinforce the rule of law” and their target audience is “everyone”? These are no doubt admirable and overarching goals of FAL, but if not coupled with specific objectives, these goals do little to help determine an organisation’s priorities and response to the needs of a particular stakeholder group that is potentially capable of financing the FAL initiative in the future.

Innovation… isn’t just another buzzword –

After using “sustainability” as many times as I have in this post, and now throwing in “innovation,” I beg you to indulge me in this section, and assure you that I will attach meaning to my list of buzzwords. (I promise I’ll save “empowerment” or “participatory governance” for another day, but I may have to use “capacity building” soon.)

Innovation seems like an obvious “good practice” –- but what does it mean in the context of FAL? Many organisations now claim to have “innovation” as part of their values, but as Ginger Grant pointed out so well at a conference on Managing by Values, when asked, “Who are the organisation’s troublemakers?” bosses and managers seem proud to reply that they have none. Well if you have no troublemakers, asks Grant, who’s innovating?

Small FAL teams with limited resources have been able to succeed. Small teams seem to favour the birth of new ideas, which face less resistance than they may in larger teams. Larger teams have managed to reach their size precisely because they initially did something that no one else was doing at the time, but staying innovative can become an increasingly challenging feat.

Having a team knowledgeable in both (legal) information management and IT, knowing who the users are and what their needs are (e.g., making the effort to find out why and how users use the service, and how else they might use the service if resources were unlimited; using Web 2.0 technologies for all they have to offer respecting getting user feedback; etc.), and staying in touch with others doing similar work (the Free Access to Law Movement (FALM); the open source software movement; various open-access, access-to-knowledge, open-knowledge, etc. movements) are just some of the ways FAL initiatives have managed to stay ahead of the curve. This is in part how SAFLII and Kenya Law Reports became among the first LIIs to look in to mobile services. This is how the Canadian Legal Information Institute (CanLII) began offering point-in-time comparison of statutes. This is also how Indian Kanoon — described in this VoxPopuLII post — rests upon a single software engineer and hasn’t stopped growing since its launch.

Where there’s a will –

… there may not always be a way, but there is definitely no way without a will.

In any of the eleven countries studied, the success of FAL initiatives is often the result of key individuals passionate about the task at hand. In places where FAL initiatives have suffered, it is again often the result of lack of interest or competing priorities. Working to (here it comes) build capacity and foster innovation is the M.O. of FAL practitioners motivated often by nothing more than a conviction that “it’s the right thing to do.”

And I hear now what we’ve been told so often throughout the course of the study: “But what do you do when there just isn’t any money?” Of course, this is a monumental challenge for a number of FAL initiatives, but where legal information is being produced, legal information needs to be accessed. The beauty (and essence) of FAL is that content is available to users accessing content for professional reasons, and to any other user, whether he or she is interested in legal information for personal matters, education, social justice, etc. But each of those users may have different needs, and going back to what I was saying above, this is why, particularly with limited resources, it’s important to know whose needs will be prioritized.

Users requiring legal information for their profession are a great stakeholder to target, as they are likely to come with funds. Insure they are receiving a service that facilitates their work and they will see benefit in ensuring the service stays around. (This is part of CanLII’s story.) But, as in the case of West Africa, the legal profession itself isn’t always well funded. So, although I started by stating that sustainability wasn’t all about funding, allow me to conclude by admitting that funding is often FAL initiatives’ greatest concern. In the course of the study, we identified the following funding sources:

Advertising on the FAL initiative’s Website
Government, including the judiciary
International development agencies
Law societies
NGOs, or members of civil society with similar missions
Private donations from users
Selling parallel, value-added services to subsidize the FAL portion of the initiative
University grants

Funding from each of these sources comes with strengths and challenges, but such funding also comes with the risk of drying up. Sustainable FAL initiatives have been able to offer user-targeted services, and to identify funding sources accordingly.

Part 2 The lessons from the Free Access to Law Study

Access to the law of many African countries is difficult, as this law is either locked away in expensive commercial databases, only available in a few law libraries housing out-of-date law reports, or simply not available. The free access to law movement in Africa, through the pioneering efforts of the Southern African Legal Information Institute (SAFLII) and the National Council for Law Reporting (incorporating Kenya Law Reports and KenLII), proved that this deplorable situation can be changed by applying information and communication technologies (ICTs) to the legal information domain. However, my personal experiences, and those of my team, in setting up and running SAFLII (until April 2010) revealed that the solution is not as easily implementable as we would have imagined it. Thoughts on the challenges faced are available through early VoxPopuLII posts by SAFLII’s team here and here.

Passion is a necessary prerequisite for a free access to law project to succeed. What we, then as a SAFLII team, learnt through our experience, was that besides zeal, IT expertise, and legal information knowledge, a great deal of business sense, structured business planning, and development were also required. We did have access to business expertise, but applying business principles to a novel, and non-profit, enterprise, without systematic guidance from those who had done it before, was very difficult. We learned to navigate the landscape “on the job.” The formulation of a business-development approach to these projects, without compromising the basic tenets of free access to law, has increasingly come into focus for many legal information institutes (LIIs) around the world and in Africa.

The first attempt at formalizing the business-development and project-management knowledge around free access to law projects was the sustainability study undertaken by LexUM and SAFLII in 2009, aptly entitled “Free Access to Law – Is It Here to Stay?” The methodology guide produced during the study was especially useful as the guide systematized all functional, operational, and strategic areas that a free access to law project should account for in its development. All areas would presumably contribute to the strengthening, hence sustainability, of such projects. While I should immediately discount the notion that all new and existing LIIs should be implementing the elaborate structures and extensive practices detailed in the methodology guide assessment matrix (and this is clearly what emerges when we review the case studies produced), a combination of approaches within the broad areas coupled with contextualization for each country would, in my opinion, foster the development of more sustainable LIIs. In that sense, a discernable outcome of the FAL study has been the elaboration of a blueprint for the development of LIIs. The blueprint is based on the collective, two-decades-old knowledge of the free access to law community.

A major aim of the study has been proving the social value that free access to law delivers. To put it squarely, that means linking free access to primary legal materials to values such as democracy, rule of law, and transparency, as well as to more concrete outcomes such as facilitating education and investment, professional capacity, etc. The study does not establish precise causal links between what FAL projects do and these high democratic values. The case studies are largely committed to individual stories that may serve as a basis for a larger study. But the study has managed to isolate links between processes, projects, outputs, and some outcomes of LII projects. The study, through the Good Practices Handbook, has identified causal links between a LII project’s design, implementation, and results. In doing so, the study has also provided the FAL and donor communities with a monitoring and evaluation framework for free access to law projects.

Free access to law projects are usually assessed on indicators such as numbers of documents published, the number of databases created, the number of unique visitors and hits to the Website, etc. But what meaning do growing document collections, growing usage, and a few words from grateful users have if the free access to law project does not use these indicators to channel support for its continued operation? The FAL study has provided us with means to identify priorities and determine the relevance of projects in terms of fulfilling objectives efficiently and effectively, all the while focusing on sustainability. The study provokes a FAL project manager to collect, and donors to seek, credible and useful information that will enable a clear picture of the status of the FAL project to emerge. In addition, incorporation of the lessons learned into the review and development of the project’s operations and strategy will be vital.

To sum up, the main lessons that I have learned from the free access to law study are about streamlining operations and strategy around core thematic areas crucial for the sustainable future of a free access to law project. As a core set of principles that should guide a LII, my LII blueprint includes the following highlights:

Think sustainability from Day 1
Demonstrate value from Day 2
Build a solid organization (no matter how small)
Identify champions for the cause and make friends for the LII
Involve all stakeholders early in the life of the LII
Be transparent about overall objectives and how to achieve them in an efficient and effective way
Be transparent about income received and expenditures made
Review strategy and develop operations with an aim of achieving sustainable free access to law

AfricanLII

The approach to free access to law that my new project — the African Legal Information Institute (AfricanLII) — takes is in many ways informed by the “Free Access to Law – Is It Here to Stay?” study. Having had the benefit of working on both elaborating the study’s methodology and conducting two of the case studies, I feel that we can continue to develop and apply the knowledge thus gathered to building a solid foundation for free access to law in Africa. The AfricanLII will be the hub that provides that platform.

Many people had spoken about the idea of establishing an AfricanLII before my colleagues Tererai Mafukidze and Kerry Anderson and I decided to form the Institute. Naturally, there were differences of opinion about what AfricanLII should do and how it should be structured. The commonality was that all saw AfricanLII as a continental-wide portal of African legal information, similar to what WorldLII, CommonLII, and AsianLII offered. The AfricanLII that we envisaged, however, is a lot different from other systems. It is not a centralized access point for African primary legal information. AfricanLII does not collect, digitize, and publish directly legal information from African jurisdictions. We do facilitate finding that information via a federated search facility and the African Legal Index. We do plan on building services around African legal information. But AfricanLII’s mission is to enable access to African legal information by entrenching free access to law principles on national level. We do this by working with institutions in individual African jurisdictions, and helping them establish national legal information institutes and develop and maintain them in a sustainable way.

A standardized approach to delivering free access to law through a regional collection point is not a viable option in Africa. I have learned this through my experience working for a regional portal of free law — SAFLII — operating in the context of a diverse, largely non-digitized, legal information environment. The regional approach does go a long way to prove value and incentivize commitment from national institutions and donors, but it does not provide room for meaningful outcomes, engagement, and a sustainable future for the concept of free access to law on our continent. (See the SAFLII case study in the FAL Project Website for more details.)

AfricanLII works with national LIIs (currently SwaziLII, MalawiLII, MozLII, SeyLII, SierraLII, and LesothoLII) to translate their particular environments into successful and sustainable free access to law operations. We implement sustainability measures on both national and regional levels. For example, targeting government and professional users to support content collection and publication in a jurisdiction is best achieved when the free access to law project is based in that jurisdiction and constantly interacts with the stakeholders to improve the value of its offering. Value additions are also best achieved by locals. AfricanLII assists national LIIs in formulating and executing strategies around local engagement. As a regional hub, we implement sustainability initiatives that make sense only on a regional level. Website monetization activities — web advertisements, directory services, and services around aggregated content, such as news and legal content or free and premium commercial publisher content mashups — are all examples of projects that are best undertaken at a regional level, where more data and more traffic make the activities more profitable. Profits are then channelled into the free access to law work of national LIIs and AfricanLII. We have planned a rollout of financial sustainability initiatives that will take effect in the short, medium, and long terms.

Financial sustainability is achievable only if national LIIs stay on track and develop sound practices in pursuit of a clear strategy. AfricanLII provides contextual operational and strategic assistance, advice, and training to new LIIs which helps these projects develop to potential. In doing so, we engage in rapid skills transfer to organizations with little to no experience in free access to law projects. AfricanLII remains available for continued support beyond the initialization phase.

The Open Society Initiative of Southern Africa (OSISA), The Open Society Institute (OSI), and Freedom House have all provided start-up funding to AfricanLII and some of the national LIIs we support. AfricanLII has developed a monitoring and evaluation framework based on this FAL study which ensures that donor money is well spent and real outcomes are achieved. AfricanLII collects and presents donors with relevant, timely, and accurate information against indicators derived in a credible process.

In conclusion, the Free Access to Law study has had a tremendous, and perhaps not entirely expected, impact on the work of free access to law publishers in Africa. I expect that we will continue to use and develop the study to suit our projects and create new ones based on it.

Isabelle Moncion is a project manager with Lexum, and was a research assistant at the Chair in Legal Information of the University of Montreal until the end of the above described research project. 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.

Mariya Badeva-Bright, Magister Iuris (Bulgaria), LL.M. (Law and Information Technology, Stockholm), co-founded AfricanLII as a project of the Southern Africa Litigation Centre, and works primarily on content, legal information management, electronic legal research training, and policy development for new LIIs in Africa. She is the former Head of Legal Informatics and Policy at SAFLII. She is also a sessional lecturer at the School of Law, University of the Witwatersrand, South Africa.

Incomprehension Compounded by Mistranslation - The Imperatives of Access to Legal Information in South Africa

Access to justice, Digital legal publishing, Electronic legal publishing, free access to law, Legal publishing, legal translation, Public access to legal information 1 Response »

Aug 012011

Farmland outside Matatiele

My father was, as was his father before him, a country lawyer in a remote but very beautiful part of South Africa, in the foothills of the Maluti mountains on the border between South Africa and Lesotho. Prominent in his legal office near the Magistrate’s Court were shelves of leather bound volumes of South African statutes, cases, and law reports, which I found impressive, with their gold blocking on red spines. Even back then, South African lawyers were well supplied with legal publications, the production of which dated back to the mid-19th century, when a Dutch immigrant, Jan Carel Juta (who was married to Karl Marx’s sister) published the first law reports. This means that the legal profession in South Africa has access to a century and a half of legal records, something of undoubted value, given that many African countries have no legal publications at all.

If it was a court day, one could hear from my father’s office the hubbub of conversations in Sotho, Xhosa, English, and Afrikaans floating down the road from outside the Magistrate’s Court, where blanket-clad Sotho men down from the mountains had tied up their horses at a hitching post alongside police vans and farmer’s trucks.

Rural settlements

This was Wild West country in the 19th century — and cross-border cattle rustling cases continue to figure large — but when I grew up, in the wake of the Second World War, it presented itself as a quiet village, in a prosperous farming area surrounded by very large ‘trust lands’ (in colonial- and apartheid-speak) of traditional Black peasant communities, where the place names were those of the presiding chiefs. This naming was a symptom of the colonial manipulation of the legal system, described by Mahmood Mamdani, to impose an autocratic and patriarchal ‘customary’ system, a heritage that lingers on in a democratic South Africa. In a legal practice like my father’s, there was a startling dichotomy between the well-paid work done for the prosperous white community with its commercial- and property-law needs, and the customary-law and criminal cases that came from the overwhelmingly larger black communities, dependent on legal aid or paying their fees in small cash installments to a clerk in a back office.

Village traders

I was thus aware at a young age of conflicting values at the intersection between western concepts of the law, its formal and Latinate expression and punctilious enforcement, and the needs of rural black communities; the problematic role that language played in the adversarial ritual of criminal court procedure, alien to many participants; and the difficulties inherent in responding to the needs of very large and widely geographically dispersed poor and disenfranchised communities. The stories my father told about his days in court as a defending attorney were often tales of incomprehension compounded by mistranslation.

This rural setting provides a vivid and useful map of divergent needs for access to legal information in the complexity of an African context. In fact this setting throws a stark spotlight on issues of legal access that are easily obscured in the global North. In an urban setting in South Africa, the issues would be different respecting details, but generally the same: the question is how to bridge the gap between the formalities and rituals of colonially-based and imported legal discourse and the ways in which the legal system impacts on the lives of most of the population. In this context, how does one transform into action Nick Holmes’s concerns, as expressed in his VoxPopuLII blog, about making the law accessible, i.e., suited to meeting the needs of citizens and lawyers in less privileged practices, in an appropriate language and format? Or, to use Isabel Moncion’s distinction between the law and justice, how does one communicate the law in such a way as to reach the people who need the information? And lastly — of vital importance in an African setting where resources are scarce — how does one make such a publishing enterprise sustainable?

I do not come to this discussion with a legal training. I would have become a lawyer, no doubt, like the generations of my father’s family, but 1950s gender stereotypes got in the way. Instead, I became an academic publisher, and then a consultant and researcher on the potential of digital media in Africa. This trajectory gives a particular coloration to my concerns for access to legal information in Africa: my approach brings together an acknowledgement of the need for professional skills and sustainability with an awareness of the serious limitations of the current publishing regime in providing comprehensive access to legal information.

Law publishing in South Africa

The fact that South Africa has a well-established legal publishing sector sets that nation apart from the rest of Africa. The strength of the legal publishing industry is a reflection not only of South Africa’s prosperity, but also of the distinctiveness of the South African legal system, a fusion of Romano-Dutch and British legal traditions. The uniqueness of this system meant that South African law publishing could not rely on purely British sources, and gave local South African legal publishers a market not subject to competition from Britain. However, the nature of this legal system also gave it a tendency, at least in its early stages, towards a particularly impenetrable mode of expression, fueled by the Latinisms of its Roman roots.

Lawyers in practice, the legal departments of big companies, and the courts are relatively well served by the South African legal publishing industry, and the system is self-sustaining. However, there are problems. One is that the industry still clings to print-based business models. The focus is on the readership that can pay and on the topics that are of interest to this readership. The danger resides in seeing this situation as sufficient: in seeing the relatively wealthy market being served as the whole market, and the narrow range of publications produced as satisfying the totality of publication needs. With the South African legal profession still struggling to diversify out of white male dominance, this is an important issue.

As global media have consolidated in the last few decades, South African legal publishers have shown a decreasing willingness to try to find ways of addressing commercially marginal markets. This has meant that, although mainstream legal publishers in South Africa have long produced digital publications, there is reliance on a high-price market model. In other countries one might talk of a failure to address niche markets, but in South Africa it is the mass of the population who are marginalised by this business model. A smaller specialist publisher, Simon Sefton’s Siber Ink, seems more aware than the bigger players of the need for accessible language and affordable prices for legal resources, as well as active social media engagement to create debates about key community issues.

Some hope of solutions to the question of access by otherwise marginalised readers lies in the development, on the margins of the publishing industry, of innovative smaller players leveraging digital media to reach new readerships, often using open source models that combine the free and the paid for.

Access to legal information – The role of government

The main efforts being put into access to legal information in South Africa are quite rightly focusing on government-generated information, which, being taxpayer funded, should be in the public domain and is indeed available on the South African Government Information site. Progress is being made by the Southern African Legal Information Institute (SAFLII) in improving the accessibility of primary legal resources, and success would mean the availability of a substantial body of information that would then be available for interpretation and translation.

Beyond this, government practice in ensuring this level of access is patchy. Some departments are good at posting legislation on their Websites, others less so. Government Gazettes, although theoretically accessible to all, can be difficult to find and navigate; and the collation of legislative amendments with the original Acts is also patchy. There is — at least in theory — an acceptance of the need in government for an open government approach, but the fact that there is a publishing industry serving the profession and the courts ironically reduces the pressure to achieve this goal.

The Truth and Reconciliation Commission

There is a danger, however, when government sees the print-publication profit model as the natural and only way of producing sustainable publications. This was brought home in 1998 with a very important publication: the Report on the Truth and Reconciliation Commission (TRC). This sad and salutary story is worth telling in some detail. But first, a disclaimer: I was working at the time for the company that distributed the Report, and I was actively involved in securing the bid from publishers, although I was not supportive of the business model that was imposed in the end.

Five volumes of testimony, analysis, and findings from the Commission were produced to high production standards. The compilers saw the archival material that lay behind these volumes as ‘the Commission’s greatest legacy’ and the published volumes as ‘a window on this incredible resource, offering a road map to those who wish to travel into our past’ (p.2). The Department of Justice, working on the stereotypical view of how publication works, insisted that production and printing costs had to be fully recovered. The Department set a high price to be charged by the appointed distributor, Juta Law and Academic Publishers.

The second set of problems arose with the digital version of the publication that Juta had offered to develop. The digital division of the legal publisher insisted on high prices. It was this inappropriate digital business model that created a row in the press. Then, a ‘pirate’ version of the publication was produced by the developer of the TRC Website, who claimed that he had the rights to a free online product. Public opinion was firmly behind the idea that the digital version should be free and that the publisher was profiteering out of South Africa’s pain.

In the end, hardly any copies of the Report were sold. The lesson was a hard one for a publishing company: digital content that is seen as part of the national heritage cannot be subjected to high-price commercial strategies.

The full text of the TRC Report is now online on the South African Government Information Website.

The LRC Website

Leaping the divide – Law and land

What is more difficult and diffuse is the route to providing access to really useful information that could help communities engage with the impact of legislation on their lives, whether the issue be housing policy or land tenure legislation, gender rights or press freedom.

If we go back to my initial example of rural communities and their access to the law, there is a dauntingly wide range of issues at stake — questions of individual agency, gender rights, fair labour practice, property rights and access to land, food sustainability, and a number of human rights issues — including legislative process as the ANC government implements the Communal Land Rights Act of 2004. In Matatiele, the village in which my father practised, there has been a long-drawn-out dispute about provincial boundaries, with the community challenging the legislative process in the Constitutional Court.

Questions of access to this kind of information are addressed in an ecosystem broader than the conventional publishing industry. NGOs and research units based in universities and national research councils address the wider concerns of community justice; using a variety of business models, these organizations produce a range of publications and work closely with communities. In the case of the Communal Land Rights Act, the Legal Resources Centre (LRC) supported a Constitutional Court challenge and published a book on the Act and its problems. The LRC, like other organisations of its kind, makes booklets, brochures, and reports freely available online. These efforts tend to be donor-funded and, increasingly, donors like the Canadian International Development Research Centre (IDRC) insist that publications be distributed under Creative Commons licenses. In the case of books published by commercial publishers, this means an open access digital version, and a print version for sale.

A major problem in providing commentary on legislative issues for the general public is that of ensuring a lack of bias. In the case of the Communal Land Rights Act — as well as for the other critical justice issues that it covers — the LRC explicitly aimed to provide a comprehensive insight into the issues for experts and the general public; the Centre accordingly placed the full text of its submissions to the hearings as well as answering affidavits on a CD-ROM and online. It also produces a range of resources, online text, and audio, targeted at communities.

Similar publication efforts are undertaken by a number of other NGOs and research centres — such as the Institute for Poverty, Land, and Agrarian Studies (PLAAS) at the University of the Western Cape and the African Centre for Cities at the University of Cape Town — on a wide range of issues. These organizations’ publishing activities tend to be interdisciplinary and the general practice is to place reports and other publications online for free download. There is a growing wave, in scholarly publishing in particular, to seek a redefinition of what constitutes ‘proper’ publishing; this process has yielded the notion of a continuum between scholarly (and professional) work and the ‘translation’ of this work into more accessible versions.

A useful strategic exercise would be to tag and aggregate the legal publishing contributions of NGOs and research centres — as these resources are often difficult to track, or hidden deep in university Websites — preferably with social networking spaces for discussion and evaluation.

Sustainability models

These civil society publishers are generally dependent on donor funding. What is needed is to recognise them as part of the publishing ecosystem. The question is how to create publishing models that can offer longer-term sustainability that might work beyond a well-resourced country like South Africa. The most promising and sustainable future looks to be in small and innovative digital companies using open source publishing models, offering free content as well as value-added services for sale. Examples are currently mostly to be found in textbook and training models, like the Electric Book Works Health Care series, which offers free content online, with payment for print books, training, and accreditation.

What is clear is that multi-pronged solutions must be found over time to the question of how to bridge the divide in African access to reliable and relevant legal information, and that a promising site for these solutions is the intersection between research and civil society organisations and community activists.

Eve Gray is an Honorary Research Associate in the Centre for Educational Technology at the University of Cape Town and an Associate in the IP Law and Policy Research Unit. She is a specialist in scholarly communications in the digital age, working on strategies for leveraging information technologies to grow African voices in an unequal global environment.

Photos: Eve Gray CC BY

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.

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.