• It’s canonical, complete, and up-to-date, coming as it does directly from the FR publisher. This solves a number of problems with private actors’ efforts to provide open access to primary legal source materials, as necessary and valuable as those efforts continue to be (particularly for the great bulk of the iceberg “below the waterline”—to wit, the two centuries of government data predating the digital era, published only in paper form). Pagination of the original source is also preserved to aid pinpoint citation.
• It standardizes regulatory OA policy across the entire Executive Branch. No more agency-by-agency variation in the ease of finding proposed regs online. (Memo to the judicial branch: time for the lower federal courts to catch up to what the Supreme Court is already doing in OA archiving!)

More available at my old hometown rag and at BoingBoing.

The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be “no” for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain.  As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement.  But as a purely statutory matter (as many others have recognized), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.

I argue in the paper that these parts of the statute may create a big headache down the road for the open-source software community, and for other large-scale informational projects (like Wikipedia, for instance) whose legality depends on the provisions of specialized copyright licenses.  Legally, all those projects rest on an interlocking set of permissions among contributors to reuse one another’s work.  But under the statute, any of those permissions can be  revoked in the future, even if the contributor promised not to.  Possible problem: what happens when somebody who contributed code to an open-source project many years ago revokes permission to continue using their work?

In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress.  I’ll post the abstract of the paper after the jump.

Here is the abstract:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (”GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.

Would love to hear any feedback.

Law students spend hundreds of thousands of dollars each year on statute books or statutory supplements for their courses. These statutory supplements, notorious for their weight and bulkiness, are compilations of subject-specific statutes and regulations, most of which are publicly available at no charge. This article discusses the advantages of digital statute books, details how the authors created a digital statute book that was used in two securities regulation courses, and evaluates the result of that experiment.

In brief, Professor Bradford created a downloadable PDF copy of the statutes and regulations needed for his Securities Regulation class.  It’s a massive document, over 2,400 pages, enough to give any law student severe spine problems if they printed it out and carried around in their backpack.  But of course, the point of the statute book being digital is that you don’t have to do that.  Furthermore, Bradford made it possible to highlight and annotate the document in Acrobat Reader.  If you’re interested in seeing it, you can download the whole thing from Bradford’s class page.

There are plenty of sites in the world that aim to serve as repositories for legal scholarship. Some of them are run by particular law schools and serve to advertise scholarship produced by that institution’s faculty. Others, like SSRN, aggregate scholarship from a variety of sources. Wikisource differs from all of them in that its mission is broader: Wikisource doesn’t want to be a scholarly archive, it wants to be a library. The very breadth and generality of that objective, however, gives Wikisource some advantages as an open-access repository that I don’t think have been adequately explored elsewhere.

To illustrate the point, I put my recent piece on the DMCA up on Wikisource.  Here it is: Fair Circumvention, 74 Brook. L. Rev. 1 (2008). The Wikisource version, I think, improves in a number of interesting ways over the PDF version available at SSRN.

• It includes the full text of the article, searchable, indexable, and cut-and-pasteable, on a single web page. All of which makes the article more useable and easier to find by people (including legal generalists, who might not be acquainted with SSRN) who are doing research in this area. The text is indexed by Google.
• Wikilinks to primary source materials make it easy to verify the research. If I have mischaracterized, say, the (in)famous Universal City Studios v. Reimerdes DeCSS case, you can find out easily, because Reimerdes is also on Wikisource, just a click away. Most of the statutes cited in the piece are available, too. As more primary source authorities are added to the site, the number of links from the article can also grow. Those primary source materials would be excluded from a site that aspired only to archive research; their easy accessibility on Wikisource, in contrast, makes the research better.
• Easy authentication and pinpoint citation because the original page scans from the published version are preserved alongside the the digitized text, just a click away using the page number links that appear in the left-hand margin of the site.   (The page numbers are anchors, too, making it easy to create external links that point directly to a particular page of the article—for example, here’s p. 5).

Doing it this way entails a little extra effort, although as I tried to illustrate during my CALI talk, a certain amount of that effort can be crowdsourced. There is also a legal issue involved in ensuring that the applicable license permits the work to be hosted on Wikisource. Still, as a proof of concept, I think using Wikisource as a legal scholarship repository holds some interesting possibilities. Would be happy to hear any feedback.

UPDATE: Peter Suber points out that some open-access journals in the field of medicine are already experimenting with offering wiki versions of their articles alongside the published PDFs. An idea whose time has come for legal scholarship as well? Perhaps one of the OALP journals should experiment with this.

UPDATE #2: Thanks for the shout-outs from All the Modern Things and Et Seq.

I’m speaking tomorrow morning, delivering a revised version  of a talk I have given before on using peer-production techniques to foster open access. My slides are public, although I’m never terribly happy just reading other people’s slides divorced from the content of their presentation. Some of the links in the slides, however, may be of interest. I’ll have more to say about the presentation later in the week.

• The move to Web applications challenges the open source model – copyleft only works if you’re distributing software to your users. With network services, for example, the GPL becomes a permissive license – if you’re running a Web server that is under the GPL, you aren’t distributing the code, so there’s no obligation under the license to provide that code to your users. Web apps thus can undercut open source goals / obligations, and also have the effect of equalizing the various flavors of licenses (BSD, GPL, etc.).

• The Affero GPL seeks to move network-based services closer to the PC-based model for open source licensing – the AGPL modifies the GPL’s bargain by linking the source provision requirement to the modification of the underlying code and its distribution user interaction over a network [Update 26 May: Aaron corrected me!]. Copyright remains the fulcrum: modification (creation of a derivative work) gives the license its grip, ensuring that users have access to source code. In addition, the AGPL reduces vendor lock-in: if the vendor goes out of business, or begins behaving badly, users have the code. However…
• Data is the primary challenge to open source in cloud computing – access to source doesn’t help much if the data from a Web application remains inaccessible. Often, the only interface to a Web application’s data is via the site itself – if there’s no API, or a limited API, the transaction cost of shifting to a different vendor or application increases dramatically. This may be particularly acute for financial or business data.
• The set of social relationships that is critical to the Web – think Facebook – isn’t yet addressed by the open source model. Being able to set up your own version of Facebook is effectively worthless if you can’t migrate the social connections that characterize social networking. It’s hard to replicate the value of a Web community by taking the underlying code and installing it on your computer or server. (How well would “Bambauer’s Book” fare if I decided I was sick of Facebook and wanted to start my own?) Network effects can thus create lock-in.
• There are three key challenges in a world of cloud computing: data portability, privacy (typically governed by contract, but think also about Fourth Amendment issues), and compatibility (particularly protecting the integrity of social relationships during migration). Before networked apps, access to source took care of these concerns – you could examine both the data formats and how the data was processed by the code to address concerns. Terms of service – the parameters of the relationship between the user and the networked service – thus become critical in addressing these worries for cloud computing…
• For the GPL model to migrate to networked services, copyright and licenses aren’t enough – we also need technological features that protect user freedoms. This becomes difficult to mandate, though, as the universal applicability of copyright no longer does this work for us. To enable user autonomy, for example, data has to be portable, which means that network services must provide APIs to communicate with other services. Take for example LiveJournal – the code is under the GPL, but there’s no way to get access to all of the relevant data that a user creates and depends upon. In terms of data security, banks have become a model for why protected is needed.
• To replicate the GPL model for Web services, we need three things: 1) access to source, 2) carefully designed terms of service, and 3) technological features (such as data APIs).
• Aaron identified Identi.ca, a micro-blogging service ( = like Twitter), as a key proof of concept for open source Web services. It’s licensed under the AGPL v3 (#1 above). The service’s ToS specify which data is private and which is not (#2 above) – private data isn’t shared, but is only used to provide services to users, and Identi.ca will only turn data over to the government under a court order. The service also describes exactly what it does with the public data it stores, constraining its freedom with regards to that information. Finally, Identi.ca has an API (a clone of the Twitter API, evidently) that lets users get their data out of the service (#3 above). Users can also export relationships in a standardized format (Friend of a Friend). Identi.ca addresses the vendor lock-in concern by implementing the Open Authorization protocol, which allows separate instances of the network software to communicate with each other. This enables interoperability without exposing private data. If you want, you can have your own Identi.ca version – and it can talk with other versions! For Twitter addicts, Identi.ca will talk to Twitter (well, at Twitter) if you have an account for Tweeting.

I thought Aaron’s talk was absolutely fascinating. The key worry that remained with me is that we’re really dependent on vendors to make the open source model work: if they don’t enable tech features, such as data APIs, or put together obnoxious terms of service, we won’t get the equivalent of the GPL’s freedoms in the networked services world. It’s not clear how to counteract this – Aaron is bullish about best practices and the example set by services such as Identi.ca – but at least, thanks to Aaron and SFLC, we have an accurate sense of the challenges.

Now that the semester is over, I am preparing to give a short lunch presentation to my colleages next week on this topic. My aspiration is for everybody to go into the fall journal submissions season with a little better understanding of the terms of the transaction that occurs when you sign a publication agreement. (My secondary goal is to foster open access; as readers of this blog will know, and you may see for yourself by clicking on our “open access” tag, this is a pet issue of mine.)

To guide the discussion, I have written a very short introduction to publication agreements for authors. It’s purposefully aimed at a nonspecialist audience, so there are plenty of things it doesn’t cover. But I don’t think it does such a bad job at teeing up the issue. An excerpt:

Suppose you wish to live in my house. You and I might reach two sorts of agreements to make that happen. First, I could sell you my house. In that case, it would become your house: you could live in it, hold raucous parties, trash the place, resell it, or do anything you wished. Second, I could rent you the house. It would still be my house, but you would have my permission to do whatever we agreed to in the lease.

Publication agreements are like that. You can assign your copyright in the work, which is like selling your house. Now it’s not your work any more: it belongs to the publisher. Perhaps they will give you permission to continue using it in certain ways, but at the end of the day, they own it. Alternatively, you can retain your copyright in the work, but grant the publisher the permissions it needs to publish it (including the permission to, for example, include the work in the major electronic legal research databases). This alternative is like renting your home. It’s still your work, but you and the publisher have agreed that they may use it in certain specified ways.

I’d love to hear any feedback readers of this blog may have on the piece. This whole thing is Creative Commons licensed, so of course you are free to copy and adapt it yourself.