So it’s always been distressing to me that PACER, which provides access to federal court records beyond just the final decisions that Google Scholar (or even LexisNexis and Westlaw) specialize in. Sure, for most legal work, the final decisions matter the most, but for historians and other scholars, seeing the party materials and “raw” details of the cases provides useful data for analysis. I had always hoped that PACER–which I hear runs a surplus anyway–would trend downward in price as the cost of delivering electronic access decreases. Instead comes this news:

The cost of electronic access to court files through the Public Access to Court Electronic Records program, better known as PACER, will rise to 10 cents per page from the current 8 cents per page, the Judicial Conference said.

via Federal courts to hike records’ fees 25% — Josh Gerstein — POLITICO.com.

I suppose it’s a nice gesture that they will waive the fees if you spend under $15/year, and I suppose the role of grant money is to fund my access to such materials, but honestly, I don’t think this is a good trend. I suppose the courts were focused on for-profit lawyers–or more specifically, on extracting a bit of silver from those lawyers–when they considered the pricing for PACER, and I see their point. This is the kind of necessary decision when taxes don’t fully fund government infrastructure (like the courts), but I lament the move to extract more capital from what ought to be public records.

The trend should be towards more open government and open courts, not the reverse.

Now the Obama Administration (specifically, the Office of Science and Technology Policy, or OSTP) is considering extending the policy to other federal agencies that fund academic research.

via Putting the “Public” In Publicly-Funded Research | Electronic Frontier Foundation.

I am a big supporter of open access to research. I think it provides a large public benefit at a minimal cost to anyone, even private publishers (who, I think, can and do make most of their profit on rapid dissemination of new materials to those who want them now, not six months or more later). Yes, publishers add some value through editorial management and processing, but most authors aren’t compensated, and many publishers are making large profits without adding enough value to justify the cost.

I’m excited to announce that starting today, Google Books will offer free downloads of these and more than one million more public domain books in an additional format, EPUB. By adding support for EPUB downloads, we’re hoping to make these books more accessible by helping people around the world to find and read them in more places. More people are turning to new reading devices to access digital books, and many such phones, netbooks, and e-ink readers have smaller screens that don’t readily render image-based PDF versions of the books we’ve scanned. EPUB is a lightweight text-based digital book format that allows the text to automatically conform (or “reflow”) to these smaller screens. And because EPUB is a free, open standard supported by a growing ecosystem of digital reading devices, works you download from Google Books as EPUBs won’t be tied to or locked into a particular device.

via Inside Google Books: Download Over a Million Public Domain Books from Google Books in the Open EPUB Format.

This kind of access shows some of the potential of the public domain to allow for innovation and reuse. Thank Google — and Google advertisers, of course — for making it free. (They could legally sell public-domain works — there is no legal requirement that such access be free and open.)

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The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) — suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the ‘open access’ movement that effectively seeks this objective without modification of the law faces fundamental difficulties.

via “Should Copyright Of Academic Works Be Abolished?” | Berkman Center.

An interesting proposal that I look forward to reading in more detail. My gut feeling is that, as an academic author, I would be comfortable with this, provided attribution was mandated (as with Creative Commons, which is really based on copyright). After all, while I do not expect to profit directly from any academic work I produce, I need the attribution to me to stay in order to survive in an academic profession that rewards publications and writings. If I lose the attribution, I lose that.

As I said, I look forward to reading Professor Shavell’s draft article in more depth.

The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

via the International Free and Open Source Software Law Review.

Cearta.ie adds some more details:

It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

via cearta.ie » New Open Source Law Journal.

So what’s in the first edition? Here’s the (very interesting) table of contents:

Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC

Articles

• The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande
• Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps
• Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen
• Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz

Case Law Reports

• Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley

Book reviews

• ‘Open Source Technology and Policy’ by Fadi P. Deek and James A.M. McHugh, Andrew Katz

Tech Watch

• Tech Watch, Adriaan de Groot

Platform

• Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver

This looks like a journal to watch going forward.

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• International Free and Open Source Software Law Review Launched (computerworlduk.com)
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Ed Kohler points us to a long, but fascinating blog post, by Stuart Shieber, a CS professor at Harvard, discussing the somewhat ridiculous copyright situation that many academics deal with in trying to promote their own works. I’ve heard similar stories from other professors I know, but this one is worth reading. Shieber points out the importance of academics getting their research published in journals, but how annoying it is that most journals require those academics to give up all sorts of rights — including the right to distribute their own research on their websites. However, he notes that most published academics simply ignore this rule, and you end up with a “don’t ask, don’t tell” policy. Even though they’re legally prevented from putting up a PDF of their work on their website, they do so anyway, and journals just look the other way.

via The Ridiculous Copyright Situation Faced By Academics Who Want To Promote Their Own Research | Techdirt.

Traditional journals and publishers make this deal required for authors, especially in the sciences. In medical journals, the NIH open-access mandate has opened up this to some extent, since it requires authors to get consent to put their article in PubMed Central. The restriction is understandable, though, given publisher’s old business models. But the world is changing, and journals — scientific and otherwise — are having to adapt.

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It’s now clear that practically everything Web technology touches starts down the path to gratis, at least as far as we consumers are concerned. Storage now joins bandwidth (YouTube: free) and processing power (Google: free) in the race to the bottom. Basic economics tells us that in a competitive market, price falls to the marginal cost. There’s never been a more competitive market than the Internet, and every day the marginal cost of digital information comes closer to nothing.

via Free! Why $0.00 Is the Future of Business.

Jason Plant takes this idea and extends it to law firms: could a law firm really offer services for nothing?

Could we every get to the point that the knowledge systems in law firms become so good that a simple search could trawl thousands of precedents and cases in a firms KM (Knowledge Management) and DM (Document Management) systems and bring you back the agreements that could be used with virtually no partner/associate billable time. Meaning very low costs that could be covered elsewhere (e.g. by adverts)?

via Free! Why £0.00 Is the Future of Business.

A little more background on the concept provides more context. So, first Chris Anderson notes the powerful difference from the consumer perspective between free and cheap:

From the consumer’s perspective, though, there is a huge difference between cheap and free. Give a product away and it can go viral. Charge a single cent for it and you’re in an entirely different business, one of clawing and scratching for every customer. The psychology of “free” is powerful indeed, as any marketer will tell you.

Chris also points out that “free” does not mean that someone, somewhere isn’t making money — advertiser-support Web sites are a key example of this:

Traditionalists wring their hands about the “vaporization of value” and “demonetization” of entire industries.… But free is not quite as simple — or as stupid — as it sounds. Just because products are free doesn’t mean that someone, somewhere, isn’t making huge gobs of money. Google is the prime example of this. The monetary benefits of craigslist are enormous as well, but they’re distributed among its tens of thousands of users rather than funneled straight to Craig Newmark Inc. To follow the money, you have to shift from a basic view of a market as a matching of two parties — buyers and sellers — to a broader sense of an ecosystem with many parties, only some of which exchange cash.

I do not believe that the lengthening economic recession has not proven any of this wrong, although more and more businesses are struggling to find ways to fund the very real costs that exist. Even if marginal costs per user are still dropping towards zero, servers, bandwidth, and storage still cost the provider real money. Yet, consumers appear even more price conscious today, and paying anything at all can seem like too much. The short-term challenge for many companies is to survive when third-party funders are harder to find, and customers are shy about paying for anything. Perhaps as consumers see companies with services they value go out of business, the massive gap between “free” and “cheap, but nor free” will lessen — but I wouldn’t count on it.

Back in the legal world, however, it is more of a stretch to me to imagine how this would work. Certainly it is possible that Jason’s Knowledge Management services may well make simple legal queries cheaper. Even now, self-help legal Web sites have grown beyond what was ever available previously, and open-access legal search makes case law increasingly accessible to everyone (in a technical sense, anyway). Technology will increasingly make routine legal matters — wills, real estate conveyances, simple contracts — possible to handle without a lawyer, or without paying a lawyer a great deal of money.

But while I suspect these services might extend legal access (“access to justice,” as it’s termed), I am not convinced that it will undercut the legal market as a whole, at least not in the short-to-medium term — not until human intelligence is significantly replaceable by artificial means. Thus, services based on human input, creativity, and analysis will be the last outpost of replaceability. For example, musicians have not been replaced. Humans still need to create original music. It is the distribution model that has changed.

Distribution, as the music industry has found, is subject to technological replacement. Similarly, distribution of legal services is already undergoing changes, as “virtual law offices” emerge, and some services are even outsourced to other countries. Barriers — bar membership requirements for example — might make this challenging, but those are, in a sense, artificial barriers, as are copyright laws.

This, musicians can still earn money for in-person concerts, where it is impossible to replicate the human element. The same will continue to be true for attorneys. But distribution of legal analysis, as with music, will change.

There are key differences, though: music does not require modification based on context, while legal analysis is incredibly fact and jurisdiction specific. So distribution will get cheaper, but marginal costs — due to modifications and application — will not drop as much in law as in music. Still, “freemium” business models, or models where third parties pay, may well be extensible to legal services. For example, firms perhaps could provide simple wills and contracts for free, and charge for customization. Legal analysis in a broad sense could also be free — but you need to pay us to apply it to your facts (is this not what legal blogs are doing now?).

So lawyers are safer than musicians in this sense — but nonetheless technology will revolutionize legal services, and law firms that adapt to the ideas behind “free” as a business model will survive and prosper — those that fail to adapt will not.

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According to the Advocate’s Studio, a recent change to the Texas Rule of Appellate Procedure gives “memorandum” opinions full precedential value — but those opinions are currently only accessible through the very expensive Westlaw or LexisNexis:

Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the Texas legislature insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.

The general trend, building on similar approaches in scientific publishing as well as open-source software, has been to open up access to legal opinions. The goal is to make the law — an absolutely fundamental part of society — more accessible to the public. It is, to borrow from a rather different context, rather like allowing people to read the Bible in their own language, rather than requiring to go to a priest trained in Latin.

Hopefully, the Texas example is the exception to the trend away from proprietary lock-in, and not an indication that we are moving backwards.

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Minneapolis News — Westlaw rises to legal publishing fame by selling free information:

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch.

The article goes on to discuss interesting ideas for businesses operating in today’s economy: “find a niche with growth potential,” “organize information to make it useful,” “the Internet is a distribution model — not a product,” “turn words into math, “separate the signal from the noise,” “computers can’t do everything,” “treat content like patented material,” “print’s not dead, it just needs online help.”

An absolutely key point that I think the article makes through its examples and discussions is exactly the opposite of the idea that “West makes its money by selling free, public information.” When one looks at the business model more closely, that is exactly what West no longer does. (Except to lawyers who have yet to adapt, I suppose.) Instead, what it really sells is the organization, signal-vs.-noise separation, and the “online help” of human editors who add value to the “free, public information” that is the foundation of West’s business.

Much as I love them, many other resources providing open access to legal materials facilitate that foundational access, but do not yet add the extra layer of value that is why people pay West and Lexis so much money. (Sometimes that extra value is not necessary, of course, so frugal lawyers should always consider when it’s worth paying for otherwise available materials.)

But, really, this is a strong, pro-business public-policy argument in favor of facilitating dissemination of foundational data and information: it makes it possible to create new business models based on adding value to that information. Google does this, although it frequently has to fight in various ways to keep its access to that information, as we have seen recently as newspapers — who perhaps are currently in the business of providing foundational information — have tried to limit Google’s ability to add value. Without the foundational data (like news, but also including all the other data out there via the Web), how can Google add any value?

Imagine how much less innovation we would have seen if linking constituted copyright infringement, and if “fair use” was eliminated — Google and all the value it adds would likely not exist. Whether or not copyright ought to exist in its current form, I think there are strong, pro-business reasons for allowing exceptions to its monopoly reach, and this article highlights that quite effectively through its examples.

In short, I say: (1) as a business, add value to survive and expand, (2) good public policy encourages innovating through new means of adding value, (3) similarly, good public policy makes foundational information (like legal decisions) widely accessible (either proactively or by allowing exceptions to copyright monopolies).

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Marketplace: Publicly funded research for a price:

Publicly funded research doesn’t seem so public when the public has to pay to read the results in a journal. A proposed law would help publishing companies preserve their business models, but it would limit public access to the research.

Publishers continue to resist the open-access movement, it seems. This Marketplace (as heard on public radio) report does a decent job of laying out some of the issues. The comments are worth reading as well.

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