 I'm grateful to Carl for organizing this and for organizing everything he's done in this space. We have been code conspirators for a long time in a wide range of contexts where we think there needs to be some updating and thinking about monopoly restrictions on access to culture and knowledge. Carl has been an ally and created a commons movement for a long time, but one of the obvious low hanging fruit categories has been the law. And a point that Jimmy Boyle has made a number of times is the puzzle that we've actually seen more progress in advancing thinking about the need for flexible access to content in contexts like music and video. And text that we've seen in all the obvious contexts like the law and education and science. And so one thing I'm excited about is that we are beginning to move the ball in the places where this point should be a no brainer. And I think what Carl has been doing has been really critical in advancing that. I just want to build out one small part of what Carl said in his introduction. It's the part that I've been thinking about most recently and I couldn't discipline myself to go back to the things that I haven't been thinking about for a while. So here it is. As people around law schools know we have this whole raft of law and subjects and one of them is law and technology. But I want you to think a little bit about the way we have law because of technology. So there was this country a long time ago, it was called England. It developed this thing called the common law. People who looked like that did it. There were not that many of them at the highest level of the English common law system. And what they were able to do in their relatively small, relatively non-transparent system of law was to build a consistent and coherent body of common law. And then the common law was imported into the United States over Jefferson's outrage, but nonetheless that's what happened. And over the course of the 19th century there were of course many thousands of opinions of the common law that were developed and published. Or not published, just developed. And then a company called West came along and started to publish these opinions. And what people recognized was this assumption of common law of consistent and coherence law was false. In fact it was inconsistent, consistent and incoherent in the law. Because as you looked at law across the many jurisdictions there was no centralizing force that was actually achieving consistency and coherence in the way it existed in England. And what that led to was natural change in our understanding of the law. What could say formalism moved to realism because of technology. We had a radical remaking of the common law because of technology. And I would submit we have Justice Scalia here because of technology. For his views of the law are radically tied to this fact about the inconsistency that was produced by the recognition of the diversity of the common law system. So that's a story of what happened in the late 19th to the early of 20th century. And interesting that 100 years later, the late 20th to the early 21st century, in a certain sense we have the opposite problem. Not too much law, but too little law. We have access to law, access at least through money which if you have money is excellent in primarily services like these two traditional services and my favorite new services, the Stask case service. But the model of this kind of access we can simplify as a kind of stupid word, service. So the idea is we've got these massive databases and standard technologies for figuring out how we get access to law within these databases. And these technologies have been different ways to get people to think about how to string words together. And if you're trained long enough by librarians you can actually do it really well but most of us are not sufficiently trained. So the efficiency of search in this context is poor. Where efficiency means not the quickness with which the machine is able to pull a record and present it to the user. But the ease with which one goes from what you want to see to actually seeing it. If you think of what you want to see in a broader sense than just what is the rule of law for consideration in this jurisdiction. If you think of what you want to see as I have a pattern of facts related to my client. And I'm going to see how that pattern of facts has been dealt with by other courts in other jurisdictions. And the pattern of facts here is the crucial element that has been underserved in the way in which we search and organize the materials. Because of course the idea of the common law was similarly situated cases meaning similar fact patterns would be dealt with in the same way. But of course that level of analysis or understanding was so far beyond the traditional model of what searching and databases could be. Nobody even tried to get that. Instead we just tried to organize doctrine in a way that was cut out by keynote searches and all sorts of things like that. But we organized doctrine to allow the lawyer to do something with the facts. Okay so it's a poor system for doing what we think the law at its core should be doing matching similar cases. But at the same time we have that poor service from technology. We have this other phenomenon where the cost of lawyering is going through the roof. The actual amount of money the lawyers get paid for their work. Not at all fields of course. Certainly not in public related law. But in private related law the cost of lawyering is going up. And these two facts for searching and cost of lawyering going up lead to a hypothesis. I won't claim this is true. I just suggest that we think about it like this. In the actual practice of law the use of rules from sovereigns that gets expressed through courts is an important sense going down. We have this odd dynamic that we're pricing and loyering in the model of Langdell out of the market. Loyering the model of Langdell meaning trying to find public rules that apply to our cases or our clients or our facts. And use them effectively. We can't do that anymore because the cost of doing that in an important sense has become too great. So that we substitute something else. And the something else we substitute looks a lot like what law looked like before we had courts and rules. And you have people sitting down and negotiating out the deal. Like okay it would really be too hard to figure out what the law really would say about our facts. But look we're reasonable. We can figure out what the answer here should be. And so you have silent and you have arbitration. You have agreements that are in some sense in the shadow of the law. But that is profoundly costly to the law itself. Because the whole assumption of the law was that it would produce a public good that other people could use when they tried to resolve the conflicts or decide how they would proceed in advancing whatever their interest was in society. The public good was we could know what the rules would be that we would apply or be subject to as we try to do something. Well to the extent that we should law into this private space, this arbitration space that just exists in the shadow of the law, we lose the value of that public good. And we also lose something at the core of what lawyering was about. So there's a story that my uncle who's a hero and so I wildly overstate his qualifications in all contexts. But my uncle was the person who got me into the law. And he was a litigator in a small firm in Madison. And he was a litigator in the sense that he was in court all the time, litigating all sorts of cases from the smallest contract dispute to very large, complicated, towards cases. And he described to me a litigation he was called into with a very large New York firm. I won't get anybody angry at me, so I patterned to avoid getting people angry at me. But in this one case I won't get anybody angry at me by naming the firm. But this firm had a very complicated litigation matter to pursue. And he was meeting with the very top litigation partners of this firm. And the very top litigation partner of the firm had appeared in court five times in his career. Five times in his career. And it was, of course, who could afford to litigate things anymore. And this is again the point of the way that lawyering has just become priced out of the practice of law. And he asked, is there any litigator in this firm by which he met somebody who had actually litigated before? And no, there wasn't anybody in that firm who would litigate it because nobody litigates anymore. Everybody does everything in a side way. So the sense in this law is are there any lawyers anymore who are producing this public good of the law? Now, you know, what's needed in this space, again, this is something Carl emphasizes. I'm going to compliment that point a little bit more. What's needed is a certain kind of innovation. And the kind of innovation we need is radical new ways to take and process and understand cases. Obviously, other legal material, too, statutes and municipal rules or anything like that. But the part I want to figure out here right now is cases. And what we understand from the theory of innovation is that that sort of innovation is only going to come from outside the traditional institutions of the law. Or it would only come from outside any traditional institution because the innovator's dilemma is the story about how the people who know the most about a field or the people who know least about how to innovate in that field. So what we knew here is radical new ways to understand cases, by which I mean a kind of quote understand, meaning a radical new ways for machines to understand cases. To be able to automatically process and automatically identify the salient features into the side cases. In this sense, due to the law, what Google did to the net. Everybody here, well, except the kids. But everybody here remembers the net before the radical change in search engines that Google was the first big instance of. I remember in like 97, 98 feeling the net was going to be hopeless, like lost. There was no way to do anything using it because there was no effective way to get access to it. Because our conception of how to organize access to it had been set by these traditional yahoo. You can give you a list of everything you should look at or I'll sell you top building for your advertising work or something like that. But the actual innovation of a new way to think about accessing the material that Google gave us radically changed and increased the value of the net. And of course other people do it today too, yahoo has an amazing lab for thinking about new ways to think about a search in this context. But the point is, they began to think about making this material accessible in a way that it hadn't been accessible before. Now, the question I would ask is what are the conditions under which that kind of innovation is possible? What do we need to guarantee for that innovation to happen? Now we need to recognize innovation is risk and the return, the percentage return from innovation is tiny. Tiny on that screen right now. And then more risk in the context of innovation field, Gator's Parabas, is less innovation, less risk is more innovation. So the point that is obvious I should think about, it's taken a long time for our society to get here, is that one risk that we can eliminate is resource risk. Meaning the risk that the underlying resource that you depend upon in some sense will turn against you or be priced out of your accessibility. Priced through licenses and other initiatives. So to use a basic resource, if you take a basic resource of information, the simplest way to increase innovation around that resource is to eliminate what I call here the resource risk. There's been a lot of people who are studying this. My favorite analysis of this comes from this wonderful paper by Peter Weiss, Borders and Cyberspace, a little bit misleading title. But what it's basically talking about is the evidence we've got and the model we've got for understanding the evidence, about why open access to underlying government information resources turns out to be radically more productive for the economy than the cost recovery model that is the standard model for access to data in Europe and in big parts of law in the United States. And so I just want to share some of the conclusions of this great report. So first, as I say, the economists are either benefits to the American treasure from adopting this open access but accrue from corporate and individual taxes, from the secondary publishing and services activities stimulated by the access policies far exceed any revenues that might be generated through cost recovery processes. So the point is if you think beyond the first step where in America we give the data away for free in Europe they charge the access to data and think about the effect on the economy from giving away the data for free and the net effect on the economy is greater than the amount of money you're going to get from just paying for the cost recovery for that data. Cost recovery policies often mean that the budgetary constraints prevent some government agencies from acquiring information that has already been created or collected by another part of the government resulting in agencies either doing without or using inferior alternatives. The point that you didn't mention but a point that you've mentioned many times before is the number of state courts that don't even have access to their own opinion because their state budgets have been cut. Such that they can't afford the excess of the Westlaw searches of their own opinions. So you have government agencies that can't get access to government data because we've made government data accessible in a way that doesn't live up to these open access standards. No one supplier, public or private, can design all information products required to meet the needs of all users in a modern information-based economy. Private sector and media areas are increasingly important players in developing information economy. That's my point about the innovation dilemma, innovator's dilemma, which is what we need to do is to make sure that lots of people who are outsiders, radicals, people who don't think like the dominant entities have the right to innovate on top of the data. And that is only assured if the basic conditions that Carl described, of a bulk access permission-free, certified, signed source is available for everyone to build upon. And a recognition that efforts to build transnational data, such as meteorological or environmental, statistical or cardiographic, are hampered by national agencies bent on preserving intellectual property and pursue local cost recovery projects. This study did an estimate of the economic value produced by the data made available in either a cost recovery or an open access model. So this is in euros, the investment value in the EU was 9.5 billion, the economic value from that was 65 billion, the United States 19 billion, economic value 750 billion. What are the multiples here? In the EU, the data produced a 7.16 multiple, in the US it was a 39.5 multiple. This is real economic value produced by adopting a model of access, which is free access at the base and innovation on top. And this, of course, now being copied in Europe too, the Dutch Ministry did this fantastic study on the effect of access to government data here and saying prosperity effects would maximize when data is sold at marginal cost. Marginal cost is defined as all costs related to dissemination of public sector information, just shipping, promotional costs, personal information, technology costs. That's the most you should be charging to get access to something, an enormous additional economic activity can be expected by extrapolating the study's results to all public sector information. And that's the project at law.gov. Now, my point is we need these kinds of insights to be applied in this context. Well, again, in my view, it should have been the easiest of all contexts for this kind of open access insight to apply. So what exists explains the resistance here. Well, one part of it is a kind of common story, or we could say a common story. There's a certain kind of mistake that's made, a mistake of seeing the special case for the general case. So the special case here is that innovation and creativity sometimes requires a monopoly, right? We call it a copyright. So business is a creativity on the model of these guys or this woman. That's the kind of creativity that typically requires for it to be maximized in some important sense within the society, something like this proprietary right. But that special case is not the general case. And in the general case, we often have innovation and creativity without monopoly. So science, education, and also the law, which increasingly obviously produces lots of innovation with that kind of exclusive right. And so the common lesson here, common lesson that we've talked about at Harvard for a long time, the exclusive right here, might help the monopolists or the people who get the benefit of the exclusive right. They can point to very high profit rates, which lead to very high stock values, which people mistake for general economic benefit to society, but it's not. It's general benefit to a particular company. That's what that produces. It helps the monopolist, but it hurts innovation and hurts the spread of that knowledge. And of course, it's not just an error. It's not just these people have done their sums incorrectly or just are mistaken about the fact. There's also a very fundamental interest here. In some sense, there's all the money in the world on the side of protecting exclusive access to these resources. Because it's a very safe business to be in the business of selling municipal codes. People have got to buy them. There's no risk in that business. If you can get that monopoly right, it's extremely valuable to you and as Judge Posner taught us more than 35 years ago, you're willing to spend up to $1 less than the value of that right to protect that monopoly right. So it's not just that people like Carl can go around and just state these obvious truths and the world is going to collapse around these obvious truths. It's going to take a big fight because it's not just a fight against mistakes. It's a fight against very significant economic interests. So all the money in the world is against this obvious. I think the point that we need to get support for and having librarians behind this is critical. Is that we've had a world where the law is effectively been played in the monopoly way for too long, maybe 150 years, depending on how you count it. And it's time, in my view, that we try something new, something new, something new. Here is this free access to this material project which Carl started. So that's the points I'm happy to make. I did it more quickly than you wanted me to. It's meant to be a general discussion as far as this workshop. And that's one reason Larry did 15 minutes and we have 15 minutes to bombard him with questions. So any? Another, I think, yes. I think another reason that it's hard, I thought you were going to say it because you came right up to it and I'm sort of curious to see why and what to do about it, is that there's a tragedy at the Commons, where even, sort of aside from interest calculations, it's a locally reasonable decision for the federal courts to keep the cost in pace here. So even if the 120 million turns into a billion dollars to the Treasury, that's not destroying money that the federal court system will get back. So it actually is an optimal decision for them. And, of course, everyone's making these locally optimal decisions and that's the tragedy of the Commons, that globally that's no longer the optimal decision. That seems an easier problem to solve than fighting lapses, which I say, kind of, you know, they're a client of ours and you know how powerful and wealthy they are. But that seems an easier thing to solve looking locally and trying to figure out, you know, it's the same with the patent offices. There's some way that we can make a bargain with them that they get an equivalent share of the general prosperity so that they're not losing by making that thing. Do you have any thoughts on how to do that? I completely agree with the description of the dynamic. Although I wouldn't say it follows from that that it's an easier problem, because, of course, the powerful interest on the other side is going to exploit this fact to try to drive local constituencies to fight hard to keep their right to collect their inefficient tax. Now, you know, we've seen these inefficient taxes throughout history as people have stopped to develop into Europe until they figured out that the Danube should not be a series of local taxes which would just be a river where people could move goods. And that's going to happen here too and it requires some kind of leadership at a higher point, but I was going to resist trying to talk about the corruption issues, but let's just, you know, frank about it until we can get policy makers sufficiently independent from those sorts of wealthy interests. It's not wealth, but it's just special interests here. They're not going to be able to recognize that fact. I mean, we see this repeatedly in lots of contexts. For example, you know, if you take some of these, some of these very large stores like Walmart or, I don't remember, this kind of fishing store, the Bass store, something like that, which come into local regions and they say, okay, we'll build a store here, but only if you eliminate our property tax. And if you don't, we're going to do it in the next county over, so you're going to lose all the benefit from that. Now, as any economist would tell you, this is completely insane for people to be doing this because what they're doing is they're giving up the tax base. They're competing with people who are paying tax, so those small businesses are driven out of business. And if you look at the actual returns from these large businesses, if they had to pay tax, they would not be profitable. They only are profitable because they're not paying taxes like the rest of us, right? So here's an obvious public good, and I collect an action column here. These local communities ought to get together and just ban this kind of activity and enforce everything. But there too, we can't get that kind of agreement because these businesses leverage this local point against the more general. So I agree with you. I just don't think it necessarily points us to the easiest path, but I think that there's a compelling argument to be made to these people. I think that one way is to wait for the federal judiciary to become fully enlightened and to join our side in this fight against Lex's next. But on the theory that that's hard, I think there ought to be some bargain we can cut with now. There ought to be some way we can say, look, here is the way that you will not be especially harmed. You know, here is, I mean, this happens in the Patent Office. You can increase your, you can set your own fees and keep the money if, right? There's always these negotiations with Patent Office who controls the revenue stream. It just seems to me that if we can come up with some way to enlist Pacer on our side of the debate, that we're in much better position to make the argument against the private interests. And that we won't be able to do that if we just wait for them to become enlightened and serve the public interests. I think that's going to happen. So, I agree we should be waited. And I don't think anything Carl's been doing has been about waiting. And I agree that we could structure it like that. Then we could grease the wheels towards the right answer. I guess I'd just come back to my pessimism about that fiscal deal being struck. Because there's so many places where it still goes the other way. And the other one that's very familiar to people around this place is Spectrum, right? Where the actual economic benefit from auction in Spectrum is probably negative, right? Because the value you get from auction, the revenue you get is less than the amount of economic activity that you drive out because you've set it off as an exclusive property right as opposed to something available in the Commons. But you can't, you couldn't say to Congress they should give up the millions of dollars that they're getting in that revenue because of their total gain to society. They just don't hear that kind of reasoning. So we need to get them to see that reasoning, especially here. But I think it's going to be a hard fight. Let me make two brief points on that. So, on the question of the benefits going back into the courts as opposed to generally the society. So the actual revenue stream last year was about 80 million dollars on Pacer. By the way, these numbers come from Steve Schultz who came out of Harvard and is now at Princeton. It turns out the executive branch spends 20 or 30 million dollars a year accessing the Pacer system. The Justice Department spends four million dollars a year. And so there is a possible compromise there in which the executive branch takes some of this money and moves it over and we recognize that our law schools aren't getting access. And so there's a potential for some of that to happen. The second point is, believe it or not, Lexus Nexus and Fast Case and quite a few of the other vendors have been very strong participants in law.gov. Now, I'm not saying Lexus Nexus has endorsed all these concepts. But their CEO was at the Center for American Progress two days ago and was talking about how he believes access to raw materials is one of his biggest costs. That he spends a tremendous amount of time negotiating cross licensing arrangements, getting poorly formatted documents and reformatting them. And so to him, he sees a great potential for more efficiency and cost of materials and just as importantly a more level playground and he actually believes he adds more value than his competitors, as does Fast Case. Their CEO was there as well. And so they actually see some potential benefits in this kind of a movement. I still think it's going to take national leadership and a movement of groundswell from librarians and students and law professors and deans to make this happen. Is your speech going to be copyrighted or can we have copies of that after you? No, I don't think I'd do a CC zero. Okay. And I do have a question for around Fast Case and it's a small question. But Fast Case brings up the Code of Mass Regulations into Math 12 or the Library's Mountain that pays for it. And I haven't written Fast Case to send me its Honor Public website so people can't find it to the public. But there's something that irks me now about Fast Case using our material that we created in the public and you're right. They won't charge me because I'm here in the state so the amount of money we have to pay to buy it back which I'm not going to do. So should I be irked? I'm irked. I'm stay irked, but should I be writing Fast Case? So you're upset because they're taking what you've made available for free in their selling? And yet when there was another publication internally that another company wanted to put under there, I was told by my lawyers not to give it to them because they're going to make money on it and it was created in the public domain. And I thought, all right, well, I'm just going to do it like that. So this is a hard argument to make but let me try to make it the wrong way. You should not be irked. You should celebrate that. You should be happy about it. The more people who figure out ways to take the material you're putting in the public domain for free and make it profitable to make it out there, it spreads the information and it's their objective to spread the information. And if you don't allow them to be able to make money off it, we're not going to have enough innovation around it. So one of the most interesting points in the history of free software, the free software, the new Linux operating system, was that when current entities decided they wanted to come in and start to make money off of this, the founders of the free software movement celebrated that idea. They didn't want the money. They didn't try to get them. It's not like where just free software still lives in poverty. The thing is, he knew that until you had that kind of commercial support, you wouldn't spread and make free software succeed. And I think that's the same way you should think about this. The more people who use and make money from your data, the more it shows how valuable your data is, even if you're not getting that kind of money. But I take it you went in the business you went into not because you wanted to make a lot of money, but because you wanted to spread knowledge. In fairness to them, it says, and that's wild front libraries, wide across the country. We've had other people take it and take off the heading and then use just the data. And when you click through it, it clicks to our stuff, but then something else goes wrong. Yeah. I mean, Carl mentioned this project. We were part of CC0 and Carl's, some of Carl's work was the first stuff released under this Creative Commons Zero protocol, which is basically a way to say we wave all rights that we could wave in this context. But one thing we've been talking about in this context is how to add back norms. So I don't want to sue you if you do something with my public domain data that I don't like. But I do think it's appropriate to say, look, the decent person says you got this from the following place, or here's the original source, or here are the people who you should thank for this type of data. And I think that's a totally appropriate layer of normative restriction that should be put on the spread of this stuff. But I don't think there should be any legal restriction. Thank you for this. So this may be a naive question, so apologies if I'm trying. But I'm wondering if you all, and I mean everybody in the room here, actually other business models in the situation, I think they sort of think of medical information as a somewhat similar type of world where you have doctors who practice medicine and you don't want to run into the unauthorized practice of medicine and you don't want to run into the unauthorized practice of law, there's reasons around why the forces would be to contain that type of information. And yet, as a consumer, I can go and find a lot of information about medicine. So I just throw that out as an interesting example and question mark whether or not some of the services that have been developed, which big money, might apply to this same kind of giving people access to information about the law. Now I'm thinking more about the end user consumer more than necessarily employers or law firms, but just throw that out there for any thoughts I have. I completely agree with the methodology. We've got to be looking across fields to see who does it well and who delivers this well. I'm skeptical that we would come to the conclusion that medicine does a problem. Just an example, I didn't need to... Yeah, but other context I think we should be looking exactly that way to see how they do it with us. Yes, sir. More of a statement than a question, but I see the problem is twofold in the sense of dissemination of the information, so providing intelligent navigation capabilities to find the right profile-specific information. But I see a fundamental problem with the way the content is created as well. When you drill down to specific state legislatures, you'll find that they're extremely prior and proprietary in the way they create content. They do it because they've always done it that way. You could go down even further into the Senate and the House and they're very different, so you have completely different methodologies and the process and so forth. And not to insult anyone in the room, but you have a career to public service folks that are driving this, that are really in control of the situation and are not motivated to change. So how do you motivate individual state governments and individual municipalities to not only adopt these intelligent navigation tools but to standardize the way content is created? So I think you're the expert in this. So there's really a couple aspects to what I felt. There's the obvious things like setting walls on dissemination and copyright restrictions. But there's also a need as you point out for standardizations. So for example, Paul Verkile was the new chairman of the administrative conference of the United States. Over 100 regulators and folks that do administrative law. The National Center for the State Courts, the administrative office of the courts. One of our strongest recommendations is that they need to come up with standards. What is adequate metadata? What is proper document structure? The authentication is an example of a standard. And that's one of the things that I think are missing right now. Now, you know, that said, if all they gave us is word perfect files via an email gateway, that would be better than the current system. But it's not going to bring us to the point where we truly have an efficient and productive system. And that's going to require standards and it's going to require bringing the level of the production of data up. The Office of the Federal Register and the Government Printing Office have been doing a wonderful job on the Federal Register and the Code of Federal Regulations. It's in well-formatted XML. It's authenticated. It's available in bulk. And we've been pointing to that as an example that government can, in fact, do it properly when they want. That's a very good point, standardization. To your point, we're not a medical. There's a HL7 standard. Our content is created. There were standards in aerospace and the Department of Defense has been using standards for many, many years to address this problem. So it's a very good point. There has to be a grassroots effort in adopting some common standards in terms of the way content is created. And it's got to be them doing it. Because, as I said, there's tens of thousands of courts out there and they can all decide what they want to do and there's a good reason for that. And so the important thing is not for us to be saying they need to do it better. The important thing is for the Judicial Conference and the Association of Supreme Court justices and the states to decide what they want to do it better. And so a lot of what we need to do here is not beating up the judges and the other officials. It's convincing them that there's a real problem that they need to adopt and internalize. And that's been a lot of the goal of creating this big tent and trying to bring it up to them as a problem that they can recognize and then begin to deal with. So I have to go catch a plane and I apologize.