James Grimmelman: Copyright, Technology, and Access to the Law: Old Problems and New Solutions
Here are some notes from James Grimmelman’s presentation Copyright, Technology, and Access to the Law: Old Problems and New Solutions. Grimmelman teaches at New York University’s School of Law (and puzzles with Codex).
Many sites give access to legal information, like justia.com. The state of Oregon got upset with them for posting their law and sent the site a cease and desist letter on copyright grounds.
James is active in access-to-the-law efforts, so he knows about some of these efforts firsthand, though he is not involved in the Oregon/Justia situation. He hopes to give us context through this talk, not doctrine.
Why should we care about access to the law? Democracy depends on people having access to the law, being able to read it, and being able to understand it. Governments where people don’t have access to the law aren’t very democratic. “Ignorance of the law is no defense.” Access to law is vital for fairness and consistency. It’s silly to expect someone to bring her behavior into line with laws about which she knows nothing. Access contributes to equality, but people who have the means to have more access might have an advantage over those who don’t.
The Code of Hammurabi, one of the fundamental groups of laws, attempted to give people access to the law. By being carved in stone, James explains, it became something permanent and difficult to change, unlike copyright law. Stone, at least at that point in time, was a good technology choice. Hammurabi even supposedly took the time to instruct people in the law.
Henry Wheaton was one of the first reporters for the US Supreme Court. His reports were often published before the next term of the court began. Wheaton v. Peters (1834) set the precedent of the court’s opinions not being copyrighted by any reporter. Peters began publishing works similar to what Wheaton had been doing while covering the court. Wheaton sued under copyright grounds. Others eventually came along to report on the court.
Banks vs. Manchester extended the rule to state courts. Case law also decided and specified what bits of cases could not be copyrightable, like the names of the plaintiffs and defendents, the date, the name of the court, etc. Since page numbers have become a key to citing court cases, the arrangement of the cases in works has become something copyrightable. (My browser crashed while James was explaining the details of the page numbering, so I missed a bit of what he said while I tried to recover from the crash.) The public domain material becomes tangled in some of the copyrightable arrangements in such a way that they aren’t necessarily or easily separable. Oregon is trying to argue that their arrangement makes their law copyrightable.
Copyright theory and policy is often gray or in flux, which makes case law really important and sometimes difficult to follow.
Authorship plays an important role in copyright. The government isn’t a person and has no personality, so it has no copyrights. Different countries handle that differently. Similarly, some companies try to have no personality in their annual reports while others will develop a corporate personality that comes through in their documents.
Incentives also become important. If government bodies aren’t doing a good job with regards to copyright law, people can vote them out of office. Private/public partnerships play a role in these activities, too. Access is a good thing, especially since we want to encourage works created because of copyright’s incentives. But access can get tricky when several entities compete for the same things.
The Internet really contributes to access. It’s inexpensive. It allows people to circulate the law. People can use formats other people can’t edit. It makes certain citation systems, like page numbers, obsolete and less proprietary. Basic legal publishing is not a problem. As someone pointed out during the talk, the entire global body of law could be smaller than Wikipedia. Many organizations are working on putting laws online. (”Underwritten by the Feds! Overwritten by you!”)
What should we demand from the law when it comes to access to the law? We all want the right to access. We could expand certain bits of the law, like Fair Use. What about the right not to extract? If we get rid of that, we lose incentive to make better editions of complex material, like the law. The secondary annotations that help people decipher the law are very important. Getting rid of those would be bad. The right to cite is also very important. It would be nice if people were able to freely cite and develop citation systems for these materials.
