Open Source for Open Law

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					Open Source for Open Law
OSCOM 3 Berkman Center for Internet & Society
May 30, 2003 Wendy Seltzer -- Berkman Center, Fellow Electronic Frontier Foundation, Staff Attorney
online: (sorry for the non-open format)

• • Applying the methods of open source development to legal argument.

Law is (partly) open source
• Its source code is freely available
– Statutes and caselaw are not copyrighted or copyrightable
• modulo some details …

– U.S. Code : – Library of Congress, Thomas – Caselaw

Law is (partly) open source
• It's modifiable, indirectly, by good lawyering
– or more directly by good lobbying

• Good decisions describe their revision history
– ACLU v. Reno:

• It can fork and resolve forks

Law is (partly) open source
• This is fitting. After all, Due Process requires that we be able to know the law we are expected to follow.

But the process of making law has often been less open
• Legislation is often dominated by big money • So is litigation • Much policy and argument is developed behind closed doors in law firms and lobbying shops • The result is not easily accessible to the public
– specialized language – complex procedures – long history

• "Openlaw" is an umbrella for several projects aimed at making law and legal argument more publicly accessible. • Creating open fora for legal discussion. • Cases:
– Eldred v. Ashcroft (copyright term) – Universal v. Reimerdes (DeCSS)

• Chilling Effects

• Enable the public to participate in developing legal argument
– Gather arguments and analysis from non-lawyers – Give public insight into the legal process – Demonstrate support for issues of public concern

Openlaw Cases:
• Eldred v. Ashcroft, challenging copyright term extension
– –

• OpenDVD, challenging the Digital Millennium Copyright Act

• Openlaw toolkit:
– website – mailing lists, online archives, RSS feeds – bulletin boards – wikis – annotation

• “Small pieces loosely joined”

• e.g.
– background information (README) – weblog-style news updates – case files, briefs, research – drafts and revisions – searchable

• Relatively static content. • Keep a simple introduction to the project

Mailing Lists
• Discuss lists are often high-volume
– rapid feedback – challenge: not losing ideas in the noise

• Searchable archives maintain historical record • Good for brainstorming and analyzing specific questions • Not so good for large-scale drafting

• Editable web pages enable us to evolve drafts over time, working with single source tree • Free-form editing plus revision history
– Example

• Annotation, calls for comments
– See also Annotation Engine

Openlaw “products”
• Involved 500+ non-lawyers in legal discussion
– Collected examples of uses of the public domain – Technical analysis of DVD and DeCSS – Offshoots in related activist groups

• Documents
– Amicus briefs in Universal v. Reimerdes – Comments in Copyright Office anticircumvention rulemaking

• Informational archives • Toolkit for use in other cases

• Internet enables more people to publish, cheaply, to more other people • It also enables more people to monitor that speech • When companies see activity they dislike, their cost/benefit analysis often supports sending a Cease and Desist letter
– Cost = a few hours of legal time – Benefit = high probability of shutting down the activity, even if it‟s lawful

• Chilling Effects: The shadow of the law
– Deterrent effect of legal threats or posturing is often independent of the merits of the legal claim – Just the threat of “liability for statutory damages, an injunction, attorney‟s fees…” is often enough to stop online activity

• Chilling Effects Goals
– Inform Internet users of their legal rights
• Enable resistance of unfounded threats • Highlight the problems with existing law

– Gather data on the chill problem
• Inform academic research, journalism, legislative lobbying, litigation; “weather reports”

– Increase the “cost” of sending a C & D
• Shame the senders of baseless C&Ds

– Produce „Net savvy lawyers

• • • • • Good places to visit:

Wendy Seltzer --

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Description: OSCOM 3 Berkman Center for Internet & Society Harvard University May 30, 2003 Wendy Seltzer -- Berkman Center, Fellow Electronic Frontier Foundation, Staff Attorney