 Anyway, I'm not going to say anything more. I'm going to leave it to him to talk about open government. So thank you, Carl. Thank you, J.Q. And thanks for having me here today. I'm going to be taking this lecture today and publishing it as an essay next week or the week after, and the video is also going to be available. So I hope you don't mind. I'll be reading a little bit from some notes. Some of the material I'm going to be talking about in this talk is about three revolutions in American jurisprudence in the law. And I'm going to start with the American Revolution. That's the obvious one. And then I'm going to talk about how the courts built a national law, a national jurisprudence in the United States. And then I'm going to talk finally about efforts to liberate American law over the last few years. I want to start with the right Honorable Edmund Burke, member of the British Parliament, who in 1775 gave a speech of a lifetime. And it was called on conciliation with the colonies. And he was explaining why England should stop having this silly war with the Americans. And he had six reasons. And some of the reasons were pretty obvious. There's a couple million Americans. It's going to be really hard to fight that many people. They're on the other side of an ocean. It takes three or four months to get our orders over there. It's really hard to fight a war at long distance. They're very clever, these Americans. They're making a lot of money. And if we weren't trying to beat them into submission, maybe we could make money. Reason number six was the one that I liked the best. He said, in no country, perhaps in the world, is the law so general of study. The greater numbers of the deputies sent to the Congress were lawyers, but all who read and most who do read endeavor to obtain some smattering in that science. A smatterer is somebody who practices a profession but is not licensed to practice. So I am a smatterer in the law because I am not a licensed lawyer. If you fix your own electricity, your own electrical system, you are smattering in the electrical profession. And what Burke saw was that most Americans were really interested in the law. And he gave two pieces of evidence. And piece of evidence number one was that many of Blackstone's commentaries, which were the definitive legal text at the time, as many copies had been sold in America as had been sold in all of England, which was remarkable given that the colonies were much smaller than England. And he also mentioned that all the people in the government are either lawyers or smatterers in the law. And that was unusual because in England, Burke happened to be a lawyer, but most members of parliament were gentlemen. They didn't practice the law and they certainly weren't carpenters or they didn't have other professions. They were simply gentlemen. And that was unusual. And the effect of this was a memorable passage in his speech. He said, this study renders men acute, inquisitive, dexterous, prompt and attacked, ready in defense, full of resources. In other countries, the people, more simple and of a less mercurial caste, judge of an ill principal in government only by an actual grievance. Here, they anticipate evil and they judge of the pressure of the grievance by the badness of the principal. They augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze. And he said, you don't want to fight these people. They're going to argue you to death. And so Americans have always had an interest in reading the law both professionally, but for all of us, for all Americans. So how did that manifest itself in this new republic that got formed? A lot of the material I'm going to talk about in this section of the talk actually comes from a gentleman named Craig Joyce, who's a professor at the University of Houston. You can search for Craig Joyce on SSRN.com, the social science research network. And he's got some beautiful papers about the early history of the Supreme Court. Now in the early days, when you attended a Supreme Court hearing, the judges didn't have written opinions. They just gathered in a room and they said they're peace. And there was no formal process of issuing opinions. It was all oral. In 1790, there was a guy named Alexander J. Dallas, and he was in Philadelphia. And he was making a living as a lawyer, but he wasn't making enough money. And so he got into business of reporting all the local courts. And in 1791, the Supreme Court moved from New York to Philadelphia. They became a local court. And Dallas decided he would start reporting them. Now in the first year, the Supreme Court really didn't do anything, right? There were no cases. They empowered members of the bar. But the first volume of the U.S. reports, which are the reports of the Supreme Court, actually has no opinions from the Supreme Court. It's all lower court opinions. And so Dallas kind of went through and kind of was capturing these extemporaneous ramblings of the justices. And he was a busy guy, and so he wasn't always able to attend. And sometimes he had to go to the bar to find out what had happened. And by the bar, I mean he had to go buy whiskey for somebody at a bar. And say, what did the justices say? And then he'd kind of write down their recollection. And that meant two things. One is that the reports were notoriously inaccurate. They really did not report the law. And the other is it took him forever. It took five years after 1791 before he issued one Dallas. It took seven years after he retired in 1800 for him to issue four Dallas, the fourth of the U.S. reports. In 1800, the new government moved to Washington, D.C., and that took Alexander J. Dallas out of the business because he wasn't going to leave Philadelphia. And a guy named William Cranch was the nephew of President John Adams. And he moved there for a real estate speculation deal that just went notoriously bust. It was just, and he needed a job. He needed something to do. And so he appointed himself the reporter of the Supreme Court. And he was just as bad, just as slow, just as inaccurate as Dallas. And by 1815, the Supreme Court had enough and they took matters into their own hands and the Attorney General actually weighed in because the Attorney General was really feeling this because he had to argue precedent in front of the Supreme Court but the reports were not issued. And he said the reporter ought to be supplanted as some penalty for his inexcusable delays. And so Justice Story and the Attorney General Rush looked for a young lawyer named Henry Wheaton that was up in New York and written something called the Digest of the Law of Maritime Captures and Prizes. And it was a wonderful scholarly work. And Wheaton, anxious to make a name for himself, was finally persuaded to move to Washington. Now, Washington, D.C. in those days was a place described as a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort. Not that different from today maybe. But in those days, you know, the justices all lived together in a rooming house because there was only one place near the Supreme Court they could find lodging. They all took their meals together. And so Wheaton moved down to Washington and became a roommate of all the justices. And from 1816 to 1827, Wheaton did an amazing job. His reporting was accurate. He attended every session. He got the justices to give him their notes. His books were beautiful, lots of white space, handsome bindings. His reports were so good when they came out that Daniel Webster sent an unsolicited review out saying he proclaimed that his opinion of the general manner in which the reporter has executed his duty is exemplary. Justice Story, who's one of the most noted names in Supreme Court history, said, I am exceedingly pleased with the execution of the work. In my judgment, your reports are the very best in manner that have ever been published in our country. And I should not be surprised if the whole profession does not pay you voluntary homage. The other thing about Wheaton is he was timely. Within two months of the end of the 1816 session, he had his reports ready for publication. During this period, Wheaton presided over what's known as the golden book of American law. Cases like McCulloch v. Maryland, Gibbons v. Ogden, the famous cases that if you take a constitutional law class that you'll be studying. Wheaton was actually so effective that the court urged that, and Congress concurred, that it be given $1,000 a year. Now that wasn't actually a real salary because he had to give 80 copies of his reports to the government. But it was the first time the government actually started paying a little money for this reporting function. But the books were expensive and he really wasn't making any money. In 1827, Wheaton resigned his office and said, I'm taking a diplomatic post. He went to Denmark and he was making four times as much money as he made as a Supreme Court reporter. And so now we get to the crux of our story. In 1828, Richard Peters Jr. became the reporter of the Supreme Court. And unlike the previous three, he was not a scholar of the law. He was a businessman and he wanted to make this pay. And so he started issuing the Peters reports, but you know, the type was smaller and the margins were smaller and the binding wasn't as good. But that had one good effect, which meant the volumes were cheaper and the lawyers did appreciate that. But he had another scheme. It turns out if you wanted to buy the two volumes of Dallas, the nine volumes of crunch and the 12 volumes of Wheaton, right, the previous Supreme Court reports, it would cost you $130. And this wasn't an era when lawyers were making less than $100 a year. It was expensive. And so Peters proposed to publish the condensed reports of cases in the Supreme Court for $6 of volume, meaning that for $36, you could pretty much get the previous collection. So it was a lot cheaper. And the justices looked at that and said, well, you know, this is really good. This means that more lawyers are going to be able to have copies and they encouraged him because they wanted to build a national jurisprudence. The previous reporters were not real pleased. Now, Dallas by this time was dead and his copyright had expired anyway, so he didn't really matter. Crunch was $1,000 out of pocket for publishing the crunch volumes still. It had cost him a lot of money and he was very upset, but he sat down with Wheaton and they cut a deal in which Peters, I'm sorry, Peters would give him 50 copies of each of the Peters condensed reports which he could turn around and sell. So he was sort of happy. Wheaton, on the other hand, did not like this because he was counting on the Wheaton volumes being his retirement fund that over the years the copies would sell and that would be his nest egg and he would retire. So Peter started publishing and he started with the Dallas and the Crunch volumes and he was a smart guy, so he took the first volume and he dedicated it most respectfully and affectionately to Chief Justice Marshall. He sent a personal copy over to Justice Story. He made sure the justices got copies and they were a huge success. By the time volume three appeared, he had a print run of 1,500 and 900 of them had been pre-sold. So big monetary success. In 1831, Peters issued the first of the Wheaton reports and Wheaton sued him. And it was a mess. It went to the district court and there were injunctions and injunctions were reversed and it was very clear this was going all the way up to the Supreme Court and by 1834 it was ready. And Wheaton came back from dead mark and Wheaton was pissed off. He was not happy. Peters saw him in D.C. and wrote back to a friend that Wheaton appeared very, very mad. And I have a couple other quotes here that I guess I don't. Let's just say that Wheaton was not happy. Peters was basically just moving forward and publishing his stuff and he really didn't care what Wheaton said. Peters fought tactically. The first thing he said is that Wheaton didn't have a valid copyright. He hadn't done all the mechanics. And he advanced also a kind of a novel argument at the time because at the time it was kind of thought that reporters might actually have a copyright in the stuff they reported because remember the judges weren't writing their opinions down, right? What they were reporting was what the reporter thought and wrote down. So Peters advanced the policy that it is therefore the true policy influenced by the essential spirit of government that laws of every description should be universally diffused to feather or restrain their dissemination must be to counteract this policy. You know, this was new law and everybody looked at that and said, well, we don't know if we believe that. So most of that court case was really about the mechanics of whether copyright was valid or not. Now the Supreme Court did not want this court case. Remember they were roommates with Wheaton. They saw Peters every single day. And so just a story in 1834 on March 18th, the day before the court was ready to announce their decision, he called the three reporters that were living in, right? Cranch and Wheaton and Peters. And he said, look, I'm doing this entirely on my own hook. I'm not speaking for the court now. But if we had the rule, we would say there's no property in the opinions of this court. But we believe that this is a fit subject for honorable compromise between the parties. Go work this out. And Wheaton just put his foot down. He said, no, this matter has to be settled and he insisted. And so the next morning the court met. Just a story took the 8 a.m. stage out of town and decided he wasn't going to be there that day. And so the opinion, at that time, the Supreme Court was kind of a mess because Andrew Jackson was the president and he was loading the court. These were the last days of the great Marshall Court and Jackson didn't like the Marshall Court. And so there was a lot of dissension and a lot of the justices were getting old. And as Justice Story said, there was a remarkable decline in the dignity, character, and courtesy of the proceedings of the court. Some of the judges were sick. Some had severe indisposition. One of the new justices, Justice Baldwin, was known to be not only eccentric but occasionally violent. And so Justice Story gone, Justice McClain read the opinion of the court. And it was a very complicated opinion and it's really kind of a mess if you actually read this thing. Wheaton during this, and I'm quoting contemporaneous letters from the time, he became strongly excited during its reading. Justice Thompson delivered a dissent. Justice Baldwin delivered a dissent. Justice McClain decided he had enough and he went back and he attacked the other justices for their dissents. Thompson responded with intemperate warmth, at which point Justice Marshall, very old, very dignified, tried to make peace by coming up with a dignified point about statutory construction. And McClain, of course, couldn't leave well enough alone. He said, that's what I meant in the first place. I mean, he re-read the statement in his opinion and then at the end he kind of looked over at the other justices that had been disagreeing with him and said this dialogue across from one another was very unpleasant, at which point Thompson rejoined in a perfect boil. Baldwin showed in no uncertain terms by looks and motions and whispers that he was not pleased either and had a strong passion up his back. It was a mess. Justice Duvall sat there utterly dumbstruck by the grotesqueness of the scene and wrote later that a large number of the bar looked on in anxiety and grief. All hell broke loose. The ruling was complicated, but at the very end there was a new piece of jurisprudence and it was one sentence, last sentence of the opinion. And it reads, it may be proper to remark that the court are unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this court and that the judges thereof cannot confer on any reporter such right. Very clear statement that the opinions of the court are not property of anyone. Whedon went back to Denmark, served six presidents, wrote the ultimate treatise on international law, died a revered member of the legal profession. By 1843 the justices had enough of Peters and his inaccurate reporting in a tandem and they took over the reporting function and became a much more regular part of the Supreme Court. But this policy that access to the law of the land shall be unfettered by property claims and copyrights has been consistently stated and restated by the courts. In Banks v. Manchester, for example, in 1888 the court ruled that this principle applied to state opinions as well as federal. State courts cannot assert a copyright in their opinions. As the court said, judges, as is well understood, received from the public treasury a stated annual salary fixed by law and can themselves have no pecuniary interest or proprietorship as against the public at large in the fruits of their judicial labors. This extends to whatever work they perform in the capacity as judges as well as to the statements of cases and head notes prepared by them as such as to the opinions and decisions themselves. The question is one of public policy and there has always been a judicial consensus from the time of the decision of the case in Wheaton v. Peters. This policy was applied to more than state court opinions in Howell v. Miller in 1898. Justice Harlan stated, no one can obtain the exclusive right to publish the laws of a state in a book prepared by him. Statutes, opinions, anything that is the law of the land. That's a core principle that there is a protected center. Now this principle sometimes gets confused when external vendors are commissioned to become reporters and those vendors add values to the basic laws. They prepare indices or summaries or abstracts. But even when that happens the courts have been very clear that the core law, the statutes and the opinions are the property of the public. Even if the law is created by a private party, once it's enacted as a law of the land anybody can make copies. And a good example of this are public safety codes. Building codes, fire codes, electrical, plumbing, boiler, fuel and gas. These are the rules that are actually the most relevant to our daily lives. It's something that every contractor, every homeowner, every real estate vendor needs to know about. Most of these public safety codes are developed by nonprofit organizations such as the National Fire Protection Association or the International Code Consortium. And then they're incorporated by reference by states and cities. And in fact the first page of the International Code contains a sample resolution that says we the people of insert name of jurisdiction here do hereby enact the following as a law of the land. So in 2002 a guy named Peter Veck spent $74 and bought and posted a model building code for his northern Texas community. The Southern Building Code Congress sued him for copyright infringement and the district court granted the code people an injunction and monetary damages. And Pete appealed. The Fifth Circuit Court of Appeals in an unbunked decision which means all the judges were sitting there reversed. And they were very clear. And they cited their brethren in the First Circuit as well and said it is hard to see how the public's essential due process right of free access to the law due process right, that's a constitutional right including a necessary right freely to copy and circulate all or part of a given law for various purposes can be reconciled with the exclusivity afforded a private copyright holder. Once the code became law it had no copyright. It's available for anybody to copy. Now you may say well what about the right of these code people to make money? It cost money to develop these high quality codes right? And without this money they're not going to develop high quality fire codes as one fire chief once said if we don't get this money people are going to die. And the courts looked at that and they had three reasons. They said well first of all over the last 60 years since building codes have been in existence ever since the great triangle shirt waste fire in New York in 1911 no court had ever ruled that the building codes enacted as law were copyright. So for them to say that there was copyright on a building code would be certainly breaking with all precedent. And then they said these codes would exist even without the copyright. It is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control and self-regulation to produce these model codes. It is unlikely that without copyright they will cease producing them. Remember copyright is an incentive for the public to gain knowledge and the right to make money is incidental to that. So there was no need for that incentive. And then finally they said the code people are in a really favored position to create value-added products. That this building code becomes a law but they could easily publish them as do the compilers of statutes and judicial opinions with value-added in the form of commentary and questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only went into the extent they are enacted into law, very specific. This serves the progress of science and the useful arts and they were very clear that the code people actually had a license to make a lot of money when their stuff was enacted into law. So the principle that nobody owns the law is one that meshes deeply with the fundamental principles of our Constitution. How can we say we're a nation of laws, not a nation of men if we hide the law? How can there be equal protection under the law if it takes a credit card to access it? And how can there be due process if ignorance of the law is built into the system? But this fundamental principle of American jurisprudence is honored mostly in the breach. Many of you may remember a year ago when my organization, and Justia, one of the leaders in the open law movement, received a takedown notice in legislature for publishing the Oregon Revised Statute saying we had violated their copyright. We stood our ground and we actually prepared to go to court. We even drafted a draft Declaratory Relief Judgment which is something that you hand to a judge and say there's an actual dispute they threaten to sue us, could you please settle this? So rather than waiting until we violated the law, this allows the judge to kind of clear up the issue ahead of time. But in what I've called many times a shining example of democracy in action, the state legislature brought us in, asked for our testimony, asked for testimony from the citizens of Oregon, heard out the legislative council and then unanimously voted to waive any assertions of copyright in the Oregon Revised Statutes. So what happened when these barriers to publication came down? There was a student at Lewis and Clark Law School where I was yesterday. He's a second year law student at Lewis Revised Statutes and he put together Oregonlaws.org which is a beautiful site. If you look at the Oregon Revised Statutes from the state, they're a mess. I mean, they're no more a mess than any other Revised Statutes in any other state. But they look bad and the HTML isn't valid and there's no search capability and the directory isn't good. It's just not that great. And what this guy did, he was a computer science undergrad, he just built a beautiful, you know, UI friendly you can navigate, you can find what you're looking for, you can bookmark, the URLs make sense so you can get back to them. It's just a shining example of how once you take these fences around the public domain, you get not only democracy, but you get innovation. And that's one of our arguments to policy makers. This is as much about the public's right to know as it is about the right of the legal profession to have better tools and for citizens to have better tools. And when you lock it up within an exclusive place, you don't get innovation. And the legal profession is actually one of the last bastions of closed and that means the Internet Revolution has bypassed it. So despite clear national public policy, copyright continues to be asserted. And the reason I'm up here today is when Professor Bill Harbaugh who is here at the University of Oregon decided he wanted to make available to get this, the Oregon Attorney General's Public Meeting and Public Record Manual. He was faced with a copyright assertion and a strong warning that this material could not be deployed without explicit permission from the so-called owner who was either the Attorney General or the State. Now, I was in Salem yesterday and I went and I bought a copy of the Oregon Attorney General's Public Records and Meeting Manual and on the cover there was a quote from James Madison and I think this is worth reading. It says, knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both. And then you open the cover and it says copyright 1988, State of Oregon. All rights reserved. There's more examples in the executive branch of Oregon. The Oregon Fire Marshall for example is responsible for enacting the fire code. But if you look at their website they state in no uncertain terms that if you want the Oregon Fire Code they have a preferred vendor that you need to go to and pay a hundred bucks. And even worse, they do have a little site online in which you can read the fire code. It's kind of a nod to the public's right to know because the public ought to know and by the public this includes like a volunteer firefighter who's trying to learn how to do inspections. So this isn't just like citizens that are either anything through the fire code. These are people that actually need it. And what the code people have done in a very cursory nod to public access on their site is you can see the code as long as you know exactly what you want to see. But there's no search. You're not allowed to save. You're not allowed to print. You can't download. So it's extremely crippled version of the code. And that's somehow they think are satisfying their public access obligations. The same is true with the building safety division which is part of the ironically named department of consumer and business services. And if you go there and again they try to get you to buy the code books from the International Code Consortium and there's a Crippleware site where you can look at the code as long as you know exactly where you're going. No search, no save, no email this code snippet, no print, nothing. And that to me is just not enough. When the Supreme Court said the public has the right to access the law they didn't say they have the right to access the law but in the minimal fashion possible so long as the state makes money. Right? That was not what the Supreme Court ruled or these other courts. And this is not just an Oregon problem. This is a national problem both at the state and the federal level. At the state level 26 states have copyright assertions over their statutes and this is a situation we think where Oregon can exert national leadership explicitly rejecting the policies that were set in place decades ago but policies that are counter to public policy and counter to the law. And policies that I've said before have created barriers to entry that have stemmed innovation in the marketplace. At the national level we think there's also a huge opportunity. The federal government spends hundreds of millions of dollars per year accessing primary legal materials. I have a set of 34 FOIA requests out to different agencies and it is amazing how much money the federal government is spending accessing the laws that they have put out and that's a fraction of the $10 billion per year that Americans spend to access the raw materials of our democracy. Recently public.resource.org my organization has teamed up with some of the top law schools around the country and we've launched an effort to change this situation. We've posited that the US government should create law.gov which is a distributed authenticated registry of primary legal materials for the United States. It would function very much like data.gov which provides bulk access to other government information and so this is not a website for end users. This is bulk authenticated information that commercial vendors like West and Lexis could use but public interest groups could use as well. We believe such a system would save the federal government over $1 billion. Not to mention little spin-off effects like a better democracy and a better system of justice. In addition to schools like Harvard and Yale and Berkeley and Stanford as co-conveners for this effort of law.gov my former boss John Podesta who headed the transition team for the president is one of our co-conveners. Tim O'Reilly who's a noted open source advocate will also be convening workshops and our aim is to draft technical specifications, a detailed list of materials, a budget and sample enabling legislation and present our report in six months to the executive branch, the legislative branch and the judicial branch and say here is something you could be doing that would save you a billion dollars and would be good. This effort is just kicking off right now. We hope it's going to be a national movement to make America's operating system open source. We were very pleased that Senator Lieberman on behalf of the United States has invited us to submit a copy of our report to his committee. We are hopeful that other government officials will submit a similar invitations to us as we go along. Now here in Oregon I'm hoping that people begin to let the attorney general know that they think it's important that the primary legal materials of Oregon be available and not just the attorney general's public records and meetings manual and I just don't understand how that can not be public. But I think the attorney general should issue something called an attorney general opinion. Now this public meeting manual is officially an attorney general opinion. It says so in the forward and these are a series of opinions that the attorney general puts out when a state officer such as a secretary of state or somebody else has a question. And it's not done when a private citizen requests it but of course attorney general Kroger can request of himself an attorney general opinion and we're asking him to consider the idea of issuing one on where may the state assert copyright over primary legal materials not only his own stuff but the secretary of state's administrative rules and the fire marshals fire code and the building codes and the other primary materials that were required to to obey if we're a citizen of a state and the materials that should be available on a national level so public interest groups such as mine for example can compile the administrative rules for all 50 states in a common format and make them available. These are all things that we think should be happening and if you agree that this is an important issue I hope you'll write to the attorney general and let him know that this is an issue that you think he ought to be looking at. So that's all I have today I'll be happy to answer any questions. There are some very complicated issues here as you know when lawyers get involved in these things you tend to get a lot of angels dancing on the head of a pen but I think the core principle is very very clear that you can't be a nation of laws not a nation of men if you don't write the law down that's what our whole system of democracy is based upon and if you write the law down you should let people read it. It's a very simple constitutional principle. Thank you. Any questions? Either here or at Oregon State. Back there. I'm wondering and I have to preface this by saying I'm definitely in the copy left camp but I'm also part of my job is mandated to be a sort of a self sufficient department you know generate revenues to pay your own salary or put a chunk of your own salary is there room in your model for that because a lot of governments and a lot of government functions you know are now sort of mandated to pay fees to fund their own function so is there room for that or is that just something we should be working on doing away with? No no there's absolutely room for that. If you talk to Attorney General Kroger this is not a copyright issue for him this is a $60,000 issue that's what it costs to create the manual he says now I don't know how much of that is the print cost but to him it's a money issue and it's very simple and I don't blame him I'm very sympathetic to that issue and so I have two answers to that and answer number one is there's no reason why the Attorney General can't sell an old seal on it and say this is the official version if you really want to be sure go buy it for me don't buy the cheap knockoff and so I still think they're going to make a lot of money there's a lot of money being made selling public domain books it happens all the time and so I think they can still make money using alternate business models and then the second answer is while I'm sympathetic to the money issue you can't take the money by asserting ownership over something that you don't own you can't sell public park land in order to raise money just because you need it and it's the issue I have with the code people as well and again I'm very sympathetic it's a huge issue at the state level it's a huge issue at the federal level the Smithsonian for example was asserting copyright over photos that we thought were public domain for example a photo of George Washington's uniform taken by a federal employee and they were asserting copyright over that and again I was very sympathetic to their $2 billion shortfall and building funds but you can't assert ownership over something you don't own I'm not sure if this is a copyright issue or not but I was a journalist in Wisconsin before coming here and they have a a website called Circuit Court Access where you can access any any Circuit Court records of any kind you type in the name of a person and it pulls up all of their the rap sheet from speeding tickets to domestic abuse and here in Oregon you have to pay for those is that an issue that you know if government wants to charge user fees to access things I think that's a public policy decision but what they can't do is charge a fee and then say and you're not allowed to reuse this material and now the problem with charging a fee for public material is give me $10 million I'll buy one of each and we're going to be done with this because then I'll just publish it for free but I have no objection in principle to government charging user fees and I think that's a reasonable way to be recouping costs but again the key question is not prohibiting other people from reusing the material that's really the key I think at the federal level making the raw materials available to everyone there's a real compelling case to make them available for free they're all well formatted signed digitally and I think that has huge effects on our system of justice but again on public records access at a state or county level if it's a specialized audience it's going for that material it's not fair to have all the tax payers subsidized a few fat cat lawyers that want the information JQ I'm interested in what the effect of jurisdictions is particularly in the case of local jurisdictions suppose that the city of Madison Wisconsin enacts the APA publication manual into law in Madison what does that do for us or does it have no effect here in Eugene well it's the law of that jurisdiction and has no copyright even if Eugene has enacted the same model thing and not made it available you could certainly take the law of that other city and republish it is that your question so your belief is that in that sort of sense even if we had no no similar laws we would still have the right to republish that law because the principle that there's no copyright in the law means anybody can publish it no matter where they're located and it's important that some Buffalo New York businessman can get in the business of doing better Oregon law local laws absolutely I said a quick question this seems like an issue that is coming up now because of technology evolving whereas maybe prior to this maybe decades ago made this less of an issue and now with the internet and everything this type of issue is coming up do you see the challenges principally technological or more around getting people to buy into the concept as a whole so I agree with you 100% that the model we have in place today made a lot of sense 30, 40, 50 years ago I don't know if copyright assertions made any sense but certainly the model of printing and selling the books for a somewhat reasonable price the idea that somebody might want to download the entire Oregon Revised Statutes and reformat them is definitely something that the internet has made possible that said the technical issues of providing a authenticated registry and repository of all primary legal materials I think are fairly minor my guess is this is a $50 to $100 million problem to do this on a nationwide basis compared to a $10 billion a year market and this makes it a people problem it's a question of policies that are entrenched it's a question of many of the senior judges have wonderful access to West and Lexis and they don't understand that they're brethren that are in public interest law firms or government backwaters many government lawyers don't have the deluxe packages don't have access to what they need they don't understand that much of this is technically possible one of the things we try to do is put as much material online for the next 30 years of circuit court of appeals decisions online so you can now drop a national report of citation in Google and up it comes and that lets us go to the judges and say look, millions of people are using these materials it clearly is a demand for the law there's a feeling with many judges and lawyers that the only people that want to read the law are prisoners representing themselves process and that's just not the case there's journalists, there's all sorts of other people but there is that misconception is a people problem, a policy problem not a technical one over here and if we have questions from Oregon State somebody should raise their hand and let us know I need to confess that I'm a former member of the Depository Library Council at breakfast so I have some experience with some of these issues what is your opinion on when I thought about those issues it was very much a copywriting the format the carrier format like pages and section heads and things like that and that was the excuse when I was working in Virginia for why we couldn't we had to buy the west version of the Virginia statutes because it was that was how you found it are you finding in a challenge when you're proposing some of these changes to the legal profession out of relying on that format so the issue here is that the court opinions are public but west publishes the opinions and they put page numbers on them and that's original creative content now I don't believe the legal theory that the page numbers are copyrighted and I think west has kind of pushed that a little far that came out of a Minnesota court and west is headquartered in Minnesota so I really think it's technically not that hard these days to get it out of west what you do if you're a vendor these days if you want to compete with west is you buy all the west books and you send them either the Philippines or India and you have them triple keyed and triple keyed means they're type three times and if they're type three times you know you got it right right if the versions agree and that way it's absolutely accurate and a dozen different vendors Bloomberg and Lexus and a whole bunch of others have all sent this stuff overseas and had a triple keyed and there's now a dozen versions of this material sitting there in XML you could either do this yourself we actually purchased HTML of the circuit court opinions from one of the vendors we gave them $600,000 for 50 years of circuit court opinions and I think a few million dollars I actually priced out what it would take to get all the district court opinions from one of the vendors and that was $6.5 million which was way above my budget but that said money would solve that problem and I think one could get out of that into a world of vendor neutral citation where you're not citing page numbers anymore you're citing paragraph numbers and it's generally accepted in the legal profession at least the law libraries that's a better way of doing things more questions yes sir let me just ask you to expand your US law orientation discussion of no government copyright to any government publications but what about other countries experience so far so let me be very clear the federal government has a policy that any work of the government with a couple exceptions when contractors do it has no copyright whatsoever states may in theory assert copyright over some things so if they put out a movie on how to drive safely they can conceivably have copyright over that that's a matter of state law but in the middle the law has no copyright whatsoever other countries typically assert copyright over their laws the United Kingdom for example has crowned copyright some of them are very good about publishing everything Sweden no surprise here has all their primary legal materials online on a website there they go but most other countries do assert copyright and it was a very American thing to say there is no copyright in the basic law one reason I specialize in Washington DC is because of that works of the government clause in which there is just no question whatsoever about the federal government asserting copyright although even there there are lawyers that try to turn that one around and so other countries there are a few South Africa for example as a leader in putting their legal system online Australia has worked with a non-profit institute to do a pretty good job of getting most of their stuff but they do assert copyright and so they have that innovation problem and one group is putting the stuff online and they don't have that kid in a dorm room who's a grad student downloading the stuff and coming up with a minor miracle and that's one of the big things we want to see here in the United States the United States is leading the rest of the world in promoting access to government documents in theory as a matter of copyright issue yes as a matter of public policy as a matter of reality what we've found at the federal level there are more assertions of copyright than one would think are make sense but certainly at the federal level the government printing office and the National Archives and the Library of Congress and many of the other agencies have actually done a pretty good job there are issues the federal depository library program is having a big issue these days because they're drowning in paper it cost a million dollars a year and they've created the FDLP it's from the 1960s and has not been updated ever since so that's a very serious issue about preservation of the archives but in terms of policy yes the US is very much a leader in that area well obviously been on on legal issues and the law and I think you clearly stated both in your writings and today that there's some very strong you're pushed to open up maintain open access how far does this go other aspects of government function in other words other things that government does that the general public thinks they should have a right to know how far does one go on this and where do you see this going in the future well I think there's a much broader issue of access to knowledge and there's many people working in this field of open government and transparency there are some real leaders in the area for example making scientific information from the government more broadly available there's people making economic data there's a whole group in Washington called the Sunlight Foundation which specializes in the politics of influence looking at the flow of the money campaign contributions and expense reports and things like that and so it is a much broader issue and I'm very much on the side of access to knowledge as a human right as far as I'm concerned I've picked a very specific fight we specialize in legal information we also do videos we have about a thousand government videos up on YouTube and the internet archive vocational information on firefighter training or medical training and things like that but yeah I think one of the roles of our government is to provide that infrastructure of knowledge that is then available in the universities for our educational system it's available for companies to build products on top of and I think that's one in our modern era I think information is like roads and railroads and telegraph systems that were in the previous era and government has always had a very strong responsibility to build that basic infrastructure that the rest of society can build on top of so yeah it's a much broader issue than just the legal stuff we have a question here at Oregon State yes please I was wondering if it kind of ties into the last question I was wondering about consumer complaints it seems like we should be able to have access to that information but when I was trying to investigate a nursing home I was told that I had to pay this exorbitant amount of money for them to do the research do citizens have the right to go in and access that information themselves without having an agency do the research for them um well I guess it depends if there is privacy related information or proprietary reasons that the state can't just open up their files to everybody maybe they should do the research they should only charge a reasonable fee right exorbitant fees that prevent access or somehow keep a vendor business I think are illegal but there is a much broader issue of access to government information and simply these primary legal materials that's one reason that I was intrigued that Attorney General Kroger asserted copyright over the public meeting manual because it seemed an opportunity to open up the broader debate of what is the policy in Oregon of access to information what should be online by default what should be online using a FOIA process of public records request and what should be private but what I want to get out is a world get out of a world where information is public but only if you have a credit card and that's what happened today if you look for legal information is all this information is on Weston Lexis and if you're rich right if you're an identity thief or a bad guy or a corporate lawyer you access this information if you're a public lawyer or a government lawyer or just a citizen you can't access it and that to me is a fundamental issue of equity but I agree with you that there is a broader issue of access to open records at the local level there's groups like every block that have been instrumental in putting things like crime data online in many cities local real estate maps and things like that and one of the things they do is equivalent to what we do at the federal level they go in and they rescue databases and they make them available and they reformat them easier and better to use so it really is a national movement of people working in all sorts of different spaces you have another question sir? So Attorney General Kroger is reexamining the state's public records law both with a potential eye to changing his interpretation of that law which could make it much easier to get the kind of information you're asking about and also with respect to information that Carl's talking about like the legal documents so there will be hearings about that in Salem at some point coming up and John Kroger Spokesman Tony Green is in charge of that process and the important thing is to let the Attorney General know that there's an issue on the table that needs to be looked at during the hearing process I think people can use that to broaden the debate and say this is more than just the Attorney General's public record and meeting manual should that be available to the Attorney General's policy towards interpreting public records request this is about openness of information in Oregon and this is something we care about we think that this is important stuff that needs to be available to people Yes sir? I just want to say at least we talk about you and we talk about it's a matter of open government as a constitutional right or as a sort of a statutory right access to knowledge or access to information is still not a constitutional right in the United States it is no more a statutory right but even though it is increasing a human right so fundamentally we have to change our constitutional culture with regard to our with the people right to know if that kind of constitutional skin change or revise we still have to struggle on a daily basis with the government who said they know everything we are supposed not to know everything so fundamental conflict of situation I agree with you it's a constitutional issue and that's one reason we're dealing with this at the federal level we think that if President Obama he's going to understand that issue but this is very much like the right to privacy and the right to other rights there's a number of the Constitution and I believe any reading of the Constitution particularly the equal protection and due process clauses free speech clauses I think the reason the Marshall Court said that there is no copyright in the opinions of the court was a free speech argument they just did not see how you could have free speech if the speech of the justices was not available and I think part of the trick here is bringing this up to the level where people like the Chief Justice of the House are able to understand that this is not a techy issue this is not an internet issue this is fundamental to our system of government and that's really our challenge is to bring these issues up to the point where policymakers are able to understand that and see that it's not simply a question of who gets the money, right and in fact one of the reasons we are a non-profit we don't have ads, we don't we have no skin in the game is we want to make it very clear that we're not doing this fight we're not trying to take money out of West Pocket we're trying to change the way our fundamental system of government works any more questions? Oregon State thank you everybody really appreciate it