April 16, 2014

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Copyright, Technology, and Access to the Law

James Grimmelmann has an interesting new essay, “Copyright, Technology, and Access to the Law,” on the challenges of ensuring that the public has effective knowledge of the laws. This might sound like an easy problem, but Grimmelmann combines history and explanation to show why it can be difficult. The law – which includes both legislators’ statutes and judges’ decisions – is large, complex, and ever-changing.

Suppose I gave you a big stack of paper containing all of the laws ever passed by Congress (and signed by the President). This wouldn’t be very useful, if what you wanted was to know whether some action you were contemplating would violate the law. How would you find the laws bearing on that action? And if you did find such a law, how would you determine whether it had been repealed or amended later, or how courts had interpreted it?

Making the law accessible in practice, and not just in theory, requires a lot of work. You need reliable summaries, topic-based indices, reverse-citation indices (to help you find later documents that might affect the meaning of earlier ones), and so on. In the old days of paper media, all of this had to be printed and distributed in large books, and updated editions had to be published regularly. How to make this happen was an interesting public policy problem.

The traditional answer has been copyright. Generally, the laws themselves (statutes and court opinions) are not copyrightable, but extra-value content such as summaries and indices can be copyrighted. The usual theory of copyright applies: give the creators of extra-value content some exclusive rights, and the profit motive will ensure that good content is created.

This has some similarity to our Princeton model for government transparency, which urges government to publish information in simple open formats, and leave it to private parties to organize and present the information to the public. Here government was creating the basic information (statutes and court opinions) and private parties were adding value. It wasn’t exactly our model, as government was not taking care to publish information in the form that best facilitated private re-use, but it was at least evidence for our assertion that, given data, private parties will step in and add value.

All of this changed with the advent of computers and the Internet, which made many of the previously difficult steps cheaper and easier. For example, it’s much easier to keep a website up to date than to deliver updates to the owners of paper books. Computers can easily construct citation indices, and a search engine provides much of the value of a printed index. Access to the laws can be cheaper and easier now.

What does this mean for public policy? First, we can expect more competition to deliver legal information to the public, thanks to the reduced barriers to entry. Second, as competition drives down prices we’ll see fewer entities that are solely in the business of providing access to laws; instead we’ll see more non-profits, along with businesses providing free access. More competition and lower prices will mean better and more effective access to the law for citizens. Third, copyright will still play a role by supporting the steps that remain costly, such as the writing of summaries.

Finally, it will matter more than ever exactly how government provides access to the raw information. If, as sometimes happens now, government provides the raw information in an awkward or difficult-to-use form, private actors must invest in converting it into a more usable form. These investments might not have mattered much in the past when the rest of the process was already expensive; but in the Internet age they can make a big difference. Given access to the right information in the right format, one person can produce a useful mashup or visualization tool with a few weeks of spare-time work. Government, by getting the details of data publication right, can enable a flood of private innovation, not to mention a better public debate.

Comments

  1. Hal says:

    It’s a little misleading to picture a big stack of paper with all the laws ever published. As I understand it, the law is organized in a hierarchical fashion to form what is called the (or a) “code”. United States laws are gathered into the U.S. Code which is in a number of volumes and is pretty well structured. It’s not that hard usually to figure out which code section is relevant to any particular activity. Now that it is readily searchable it is even easier to use.

    There are many other codes which are relevant, such as the Code of Federal Regulations, which includes all the different regulations issued by U.S. government agencies, which is still hierarchical. There are similar codes at the state and municipal levels as well. But they are generally well organized, from my limited layman’s perspective.

    Court decisions are more problematic, they are not as organized and not as easy to find or to read once found. Deciding whether a given court ruling applies to a given situation really does require expertise, which you’ll probably need to pay a lawyer for. So I’m not sure there is too much public benefit to making this part of the law more easily accessible.

  2. Steve R. says:

    For my job I have to occasionally look up legal decisions. The ability to obtain them directly from the courts (as pdf documents) is slowly getting better. However, the availability of public information, such as court documents, through private entities presents a greater issue.

    I fully sympathize with private firms seeking out public data and assembling public data that adds value for the consumer. However, the private firms that make public data available must NOT be allowed to prevent government agencies from disseminating information that is in the public domain. For example, in May 2005 the Electronic Frontier Foundation reported: “Sen. Rick Santorum, R-Pa., the Senate’s third-ranking Republican, is pushing a bill that critics say would force the Weather Service to disseminate much of its data only to private companies.” This is a major No No.

    While private companies are entitled to collect and sell public data, the “real” solution is that the government design a better interface for the public to retrieve data. Competition in a free market system should not be limited to private corporations. The government also has a right to compete in the market place.

  3. Steve R. says:

    Of course, immediately after posting, my memory kicked in for a recent article in Forbes. The title of the article is: “The Law Goes Open Source” by Daniel Fisher. Mr. Fisher writes: “A new breed of online services is putting the law within the reach of everybody” … “Eight years and $7 million later Rosenthal and Walters have their alternative, an online legal-research service called Fastcase. It uses computer algorithms to perform all the case indexing now done by the thousands of human editors at Westlaw and Lexis. “

  4. Barry says:

    I usually don’t have that much trouble with referring to statutes (or even local ordinances). The United States, most states, and lots of municipalities have all their laws available online in a (usually) fairly easy to reference/search system.

    The real problem is that statutes often don’t mean jack, because the courts apply 74-pronged tests for this and that to most of those statutes (the vagueness of which seems to be reasonable, and in the defendant’s favor, for most criminal statutes, but they can get extremely difficult to understand and reference for other matters).

    For that matter, almost all of common law is nearly completely inaccessible to the layperson surfing the web from home. Much of common law is only ensconced in rulings from the bench that cite precedents going back centuries through our British legal heritage.

    While the courts are generally doing a better job than they used to when it comes to making the judiciary accessible to the public – many rulings are posted online, sometimes mere hours after they are handed down – you guys make a great point that it’s the *indexing* that’s really at issue today, more so than the accessibility of today’s rulings. One could almost imagine one day going to Google Law rather than needing to consult a lawyer for every little thing.

  5. paul says:

    This version of the history appears to elide the rather long period when copyright was used as a club (or perhaps a nuclear-powered chainsaw) to prevent anyone who wanted to refer to nominally uncopyrighted law and court decisions from doing so without paying monopoly rents to the compilers of the canonical printed version. (A search on “Westlaw” and “page numbers” should refresh some memories or produce new ones.)

    Although this risk is lower when legal information is available in computerized form, it’s still there if the “open” formats are arcane enough, and if courts or legal publications insist on submission in other, possibly closed formats.

    (Oh, and “Google Law” — a third, supoenable party with strong orthogonal profit motives recording every legal cranny you’re investigating for the purpose of selling you (or someone else) ancillary services — kinda makes my skin crawl.)

  6. Ed Felten says:

    Paul,

    Grimmelmann lays out the history in more detail, including the West/pagenumber story. I had to abbreviate the history (severely) to fit the blog format.

  7. Harl Delos says:

    [i]The United States, most states, and lots of municipalities have all their laws available online in a (usually) fairly easy to reference/search system.[/i]

    That doesn’t help when you live in one of the states that doesn’t. I’m speaking of Pennsylvania.

    When the text of the law isn’t available online, how can you really argue that “ignorance of the law is no defense” with a straight face?

  8. Jim White says:

    Huh? Pa code is online at http://www.pacode.com/secure/browse.asp

  9. Spudz says:

    Even if it was merely not easy to find, that is still a problem.

  10. Spudz says:

    What the heck’s happened to the page “New bill advances open data, but could be better for reuse”, right below this one? The bottommost few comments are missing, along with the form for submitting new ones.

  11. Spudz says:

    Eh? The bottom of that page is still missing, completely. It’s a strange bug since it’s not affecting every similarly-structured page on the site.