Principles for a New EraLink (Thanks, James!)
In setting out principles for thinking about copyright in this new age of technological access to the law, I’m not going to focus here on existing copyright doctrine. Rather I’d like to look at what the essential freedoms are in relationship to law. These freedoms are the ones that everyone ideally needs to have to consult and make use of “the law”; my argument is that computer and Internet technologies enable us to go much further in ensuring them than ever before. Think of them as guiding principles.
* The right to access: First and most fundamentally, people need to be able to get at the law. This puts a basic initial duty on the government not merely to publish the law but to publish it online in accessible formats with the right metadata, so that people can find it and know what it is. We shouldn’t exclusively rely on the government, any more than we relied on it exclusively in the 19th century. But governmental online publication is the first step, the one that makes the rest possible.
* The right to distribute: Once primary legal information is online, anyone should be able to pick it up and republish it as they see fit. That could be coordinated with other materials in larger collections, it could be pushed out to mobile devices, it could be reformatted or sliced and diced in some clever new way. Law shouldn’t get in the way of people who are taking it on themselves to publish it.
* The right to extract: Then there’s the intermingling problem. Anyone has to be free to do what Richard Peters did: to extract the public-domain legal materials and reproduce them. This is a strong principle, and needs to override any voluntary agreements to the contrary. That is, a private publisher shouldn’t be able to require that you give this right up if you get the legal materials under digital rights media management with a clickwrap contract. It shouldn’t matter that you click “I agree not to tell people what the law is.” You should still be free to tell people what the law is.
* The right not to extract: The flip-side of this principle is important, too. You shouldn’t be able to make things hard to extract. No one should have to write a parser to strip out that green sentence from the midst of all the red that surrounds it. To the extent that copyrighted material has been so intermingled with public-domain legal material as to make it a significant challenge or to require significant work to extract the underlying material, there should be a right to redistribute the collection as a whole. Whatever the most accessible version of the law is, you have a right to use that version.
One might object that this rule erases the incentive to make annotations. On the contrary, it provides an incentive to make your annotations cleanly, with a clear layer separation between the primary materials that are the law and the secondary annotations that help people understand the law.
* The right to cite: Finally, there’s citation. Anyone, of course, is free to use the citations themselves; Oregon basically concedes this one. But to the extent that a citation system becomes a standard (and especially where government requires you to use a particular citation system), anyone should be able to reproduce the necessary citation information as part of their own materials. (West has sued companies that want to reproduce what’s called “star pagination”; that is, little flags in the text or the opinion that show you whenever the West case number changes. They’ve won in one federal appeals court and lost in another.) Otherwise, a standard citation system allows its creator to assert de facto copyright control over the underlying legal materials.