 So, hi, I'm Pam Samuelson, and I'm very glad to be here. I think it's actually a good idea to begin by saying that, although the conversation that we're going to be having here is an American conversation, and in the American conversation, at least in theory, there is no intellectual property rights in legal information that has been produced or adopted by the government. But in a number of other countries, actually copyright in laws, copyright in other forms of legal information is really quite common. So part of what I think this current initiative may do is, especially if it does what we think it's going to do, which is give rise to a lot of innovation and a lot more public engagement with legal information, maybe this can not just be a good demonstration project for the United States, but also for other countries. Because there are debates going on in other countries about whether copyright in legal information is a good idea or a bad idea. So I think it's good to put that in context. Part of the reason that it's good to put that in context too is that most of the kind of common law evolution in America, at least especially in the 19th century, was really looking to England, looking to English case law, looking to what was the understanding there. And so part of what's interesting to me is that very early on in the 19th century, there were efforts by compilers of legal information, usually judicial opinions, to say I have copyright in this and if somebody else tries to copy it, then they're infringing my copyright. And so there are really quite a large number of cases involving legal information. And notwithstanding the fact that the British have used copyright to protect information, the courts in the United States have overwhelmingly said that things like laws, judicial opinions, regulations, anything that's kind of government-endorsed law is something that's in the public domain and not available for copyright protection. And so there's a series of decisions dating back quite a ways. But notwithstanding the fact that those decisions established some precedence of no copyright in laws, no copyright in judicial opinions, no copyright in other government information, the 20th century witnessed quite a few lawsuits about copyright claims too. So once you couldn't get copyright in the actual text of the law, there was still an effort to say, well, I can get, OK, I won't claim that now, but I'm going to claim this other thing. So one of my favorite of the old cases is a case called Long versus Jordan. Long published a little pamphlet about a pension plan system that he thought was a real neat thing and that ought to be adopted. And the Secretary of State of California actually read the pamphlet and said, great idea. And so he essentially transformed the information in the pamphlet into a bill or an initiative that was going to be adopted or not by the people of California. And then Long says, hey, that's copyright infringement. And he not only wanted copyright royalties for having made that available for the promulgation to the public in California, that initiative was copyright infringement. He wanted royalties for the plan when it got adopted too. And the court said, no, that's not something copyright will protect. The court decided that the pension plan was actually an idea and not an expression that could be protected by copyright. And so that was one decision. But there also were a number of decisions involving things like pagination. So one of the things that West Publishing had, which was an advantage over Lexis for a period of time, is that West was putting page numbers for each particular page in a case inserting information about the pagination in the judicial decisions. And then Lexis decided that, yeah, people can get access to the opinions, but you've got to be able to cite to the exact place. So then you still either have to use West law or you have to look at the books in order to get the actual pin sites. So they said, well, we're going to put a little star and the page number in each of the decisions. And West sued them for a copyright infringement saying that the pagination was actually part of the copyrighted selection and arrangement of the cases. And although I think it was a very weak argument, it persuaded the 8th Circuit Court of Appeals. And so West actually was able to stop that star pagination. Now, I think most scholars would say today that that decision was wrong. And the Supreme Court's decision in Vice versus Royal Publications, which said that there has to be creativity in order for there to be copyright. And the idea that there's creativity in the pagination of particular decisions, not like West took a look at this particular case and said, I think this one should start at page 939. Okay, that's just not a plausible thing to think. And so I think that the creativity-based requirement for originality in any body of things with legal opinions, now judicial opinions in it, is pretty weak. Now, West also, when another competitor besides Lexis came along, West said, well, okay, we actually saw it, we go through all the opinions and we correct things, right? So the citation to a particular page and the quotation might be wrong. And so we fix all that stuff. And so because it requires an exercise of careful judgment and some skill, and you gotta have a teeny little bit of creativity. And the Supreme Court said only a modicum of creativity is really required. So they thought they would be able to claim copyright because of this correction and the courts rejected that particular argument. So I think we're in pretty firm territory there. Another set of skirmishes, I don't think this was actually litigated as a copyright matter, but I know that West Publishing also is claiming that the numbering, they contribute numbering information to laws. And then they were claiming, well, okay, I can't protect the text of the law, but if you wanna protect, you can publish the text of the law, you just can't use our numbers that are associated with that particular thing. And of course, it's an indirect way of trying to get protection for that which you're not supposed to get protection. The building code issue that Carl raised a little bit ago is also been litigated Veeq versus the Southern Building Code case is one where Veeq is like a dog and he likes putting stuff up on the internet. And so he thought this building code had been adopted by these towns in Texas. Essentially, this is the building code of our town. The building code had been drafted by this nonprofit building code organization and they claim copyright in it. And as long as it was not adopted by any government, I think the argument that they could claim copyright in it is a pretty good one, although I think there would also be pretty good fair use claims for at least some nonprofit uses of that kind of information. But Veeq got sued for copyright infringement because he posted this online. He was also sued for breach of a shrink wrap license because in order to get the book that he scanned in order to put it up on the internet, he had to say he wouldn't make any but these restrictive uses of it. And so what you had is then a kind of interesting question that the Fifth Circuit Court of Appeals ultimately resolved in favor of Veeq on the copyright claim saying that once once this building code had been adopted as the law of these particular towns, that it was now a fact that copyright could not extend to. It was kind of a weird argument that adoption of this makes it a fact. Whatever, they reached the right decision on the substance. But I actually, when I was writing an article about this case for an article about whether copyright should extend to standards more generally, this I looked for these building codes online and they weren't. And I think what happened in that case is although Veeq won on the copyright claim, he still was bound by the shrink wrap license. And so some part of what we have to get around is that there's more than one way to try to control and get copyright-like protection even when the courts are willing to say that you can't do that. So Veeq actually is a very important president. I think that if the issue got to the Supreme Court really quite sure that they would endorse it and actually have better reasoning about it, I think that the American Law Institute drafts model laws. That's another privately drafted thing where it's a model law. They're hoping for states to adopt it. They've gotten to the point where if the state actually adopts it, then they're not gonna claim copyright in the adopted law. And that's actually a good thing. But until it's adopted, AOLI controls it. Again, some fair uses are allowed of it, but there are these kind of copyright restrictions still. And also, you know, technical protection metrics, right? If so, so suppose that Brian doesn't have, doesn't have a Lexus or a Westlock count. And suppose I do, and suppose I let him use my name and my password to get access to it. In theory, I'm reaching my contractual obligation to these organizations, not to let it be used. I'm also potentially violating the digital millennium copyright acts anti-circumvention provisions because I'm enabling the circumvention of an access control that a copyright owner is using to protect access to a work. And maybe I'm violating more, he's violating, if he uses it, the Computer Fraud and Abuse Act, which forbids either unauthorized access to a federal interest computer or exceeding authorized access. So there are still a set of things that happen that kind of provide copyright-like protection to legal information. And so, well, I think we can plot our course to make this stuff available. States are gonna be, I think, a little more resistant because the federal government claimed copyright in laws and its legal information because the copyright statute specifically forbids works of the US government from being protected by copyright law. But it doesn't mean that they are not going to, that states are going to follow suit. And so, Carl has some stories and others do too about efforts to use copyright for state legal information. So copyright has been the main story here. I do think before I hand this over to Brian that it's worth mentioning that there have been patents issued on a lot of legal methods in the last decade in particular. And although patents haven't really been a restriction so far on public access to legal information, unless the Supreme Court announces in the case that it's about to issue any day in Bilski versus Kappos that legal methods are not patentable subject matter, patent landscape could end up being something of an impediment to the free access to online information that I think we have as our goal. And I agree with Carl very much that what we haven't seen really in this world of mostly the two big proprietary services is a lot of innovation. And I think if you have a public resource where information can be remixed and mashed up and as long as there's some authenticated source, I think that's something that Carl's really tackling. I think it's really important. But competition innovation is part of what an election property policy is supposed to be about too. So with that, I think I'll ask Brian. Thanks. Hi everybody, I'm Brian Carver. I'm an assistant professor at the School of Information at UC Berkeley. I'm one of the lawyers that they keep in the building that I'm surrounded by a very interdisciplinary faculty and a group of very diverse masters and PhD students. One thing I'll tell you more about later. And I wanted to start, I'm gonna hit several things sort of very quickly because of the 10 minutes and then can maybe expand on any of these in question. I think I'd start with some of the bases on which the courts have decided that intellectual property law ought to stand out of the way when it comes to access to primary legal interiors. One of those I just mentioned that works of the US government are born in the public domain. This is a statutory basis. It's right there in the Copyright Act. And so at least for federal judicial opinions, for instance, those are works of US government employees is one way to think about it. And so they start off in the public domain just by statute. Another basis by which we've seen courts decide these sorts of things is sort of a mixture of judicial doctrine but that also is supported by the statutory scheme of the Copyright Act. And that's that facts are not copyrightable, right? The laws of the land are facts, right? And so you can restate those facts. There's not a lot of creative expression if you do much statutory analysis in this stuff sometimes. And so some courts anyway have relied on this basis to say that copyright shouldn't apply. But the third basis that I would highlight is a constitutional one, right? There's a due process and a first amendment argument that intellectual property law cannot impede the public's access to the law, right? If we are going to hold people to the standard that ignorance of the law is no excuse, then there's a due process problem with not allowing people access to this law that ignorance of leads them to peril, right? And if we don't allow people to speak about the law, then there's a first amendment problem, right? By allowing one person of property interest in the law. Now, and I think this third basis, the constitutional basis, ought to trump some of these contract concerns that Pam highlighted, that people are using those as sort of an in run around the statutory and the copyright restrictions. And we need not only rely on statutory bases or presidential bases for this, there's also, I think, a very strong constitutional basis for these sorts of arguments. And to give you a quick run through of the sort of history of these cases, I would just recommend to you, Carl's pamphlet Three Revolutions in American Law. He takes you through the story of Wheaton v. Peters and Banks v. Manchester and the building code cases. And it's an excellent exposition of that is available online for free. So I think those are accurate bases from which to argue that IP has to stand out of the way here. One that I would say is really not so strong and that sometimes the folks who wanna assert copyright try to spin to their advantage is the idea that judges are already paid to do their job, right? And so they don't need copyright. And so some people have tried to interpret some of these older cases as having that as their foundation. I don't think that's right. And it's a weaker foundation than the constitutional argument or some other argument because a lot of people are paid to create copyrighted works. And we think that they're entitled to copyrights. So there has to be something more going on here than just judges are paid. So that's not really, I don't think what the Supreme Court was deciding these cases on. So there's, like I said, very quickly, right? Some things we can talk about more in questions. Let me talk quickly then also about if we have all these different ways in which IP is supposed to stand out of the way, why do we have so much frustration with actually getting access to this stuff currently? There's a lot of ways in which I'm constantly frustrated by my ability to get free public access to these kind of discussions. Some of these are IP problems. Others are problems with the current technological tools that we have. But I think solving the IP problem might solve the technology problem too and I'll explain in a minute. So let's start with federal. I would encourage you to go to www.cand.uscourts.gov. This is the Northern District of California website. And look for written opinions without logging into PACER. There is a written opinions page, I did this last night. And there are 110 opinions listed on that page and there's no next button, there's just 110 opinions and they stretch over about the last six years. Now, maybe you're not familiar with the output of the Northern District of California, but 110 opinions over the last six years is nowhere near the output in terms of written opinions of that court. That's all I could get access to last night when I tried to see what could I get for free without a PACER account. Because if I have to have a PACER account, I also have to have a credit card. And that to me is not public access to free illegal material, primary legal materials. But the reason I picked that court is they also have a survey right now on their website redesign. Please take the survey and say, I came here looking for free legal opinions and you only have 110, please give me a list of all the free opinions. If they're supposed to be free, why can't I get a free list of them so that I can then click on them. And so I did that last night. If all of you also take their survey, maybe they'll get the message. Let's move to the circuit courts in the federal system. I wonder if you guys know who the sort of least forthcoming circuit court is right now. Sort of who I grade the lowest on public access to their documents. Turns out I give the sort of booby prize to the DC circuit. Every other circuit makes both their published and unpublished or non-precedential opinions available for free on their websites without a PACER account. Yay. But the DC circuit only makes the published opinions available. Their unpublished or non-precedential opinions are behind the PACER paywall and you can only get them there. That's not the only way in which they're less than forthcoming. Many of the other circuit courts provide oral argument audio for free on their sites. I love this stuff. And the DC circuit has a bizarre policy about oral argument transcripts and audio but you should go read the policy on their website. First they say that only the litigants are even entitled to get access to the transcript until the case is over. Right, I mean, when the Comcast BFCC decision had oral argument, I'd blog about these things and I was like, oh, I'd love to go read the transcript or see if there's oral argument audio and find out how the argument went down. I was met with this policy that I've got to be one of the litigants to even get access to the transcript. And there's no audio at all, at least not online. You can request after the case has concluded this audio but if no one requests it after a year or two, I think the policy says they destroy it, right? And so we're losing this resource if people don't request this stuff. And to me that's a disaster, mainly because I do research, right? And I find those kinds of things enormously illuminating when I wanna understand what went on in the case, right? And Professor Sanderson, I have the experience of researching an old copyright case from 1880 and I feel like even there I was able to find more materials than I'll be able to find about some cases from 2004 right now, you know, because at least with old Supreme Court cases, somebody was writing down roughly what the oral arguments were, what cases were cited, and these sorts of things. And now we're recording the stuff and then throw it away. In fact, the Ninth Circuit, I think had a statement like that on their site many years ago and I wrote to the Internet Archive saying, do you guys know about this? They're deleting the audio after two years, right? Somebody needs to be saving this stuff. I don't have a big enough hard drive, can you do it? And, you know, I think there are librarians out there, I've seen some of you in the archives. I think you have the same panic that I do about losing forever, right? You know, valuable research materials. And that's going on right now I think. If we move to the state court system, when you go to the California Supreme Court and appellate court opinions website, there is this really nice message that says there's no copyright and judicial opinions. Thumbs up for them for that. But, I think you can only get about back to January of this year in terms of those opinions sort of for free on their site without logging in. If you want anything older than that, Lexus is providing this service for them that lets you go back a little further and you're confronted with a EULA that says who knows what, right, you know, and you have to agree not to scrape the site or run a webcrawler on it and collect up this public information and give it out to others, which is the kind of thing I like to do. And so, you're really only, again, being a smattering and it's going away over time. Don't even get me started on the trial courts, right, in any state. Just to take Alameda County, where Berkeley is, for an example, if you try to look up documents on the Superior Court of Alameda County's website, you can't find anything without first entering a case number. I can't enter a party name. I can't search by any other feature. I have to know RG093365 before I can do anything on their website. That's impossible, that's not public access, right? So, and then, of course, the documents are in TIFF or some crazy format, you know, and you get one page at a time and it's 5,000 megabytes, I think. So, trial courts are a disaster, right, in terms of public access. How about state statutes? I've heard Carl before at these events say that there are at least eight states that assert copyright in their statutes. Despite this long history of cases saying there's no copyright in the law. And so, we need this effort to sort of alert people of this, right? There are some people that haven't gotten a memo, right? There are some states who are still asserting this and creating a problem for those who want to access and redistribute this information. Okay, so some of those are technical problems, some of them are IP problems, but here's how I think they're all actually connected to IP. Even these things that are technical problems or bad websites or whatever. I think they become more glaring if there were a national movement like this, right? That made abundantly clear that primary legal materials are outside of IP's purview and should be publicly accessible, right? If we get that message out there through something like this, then we can all write a letter and assign it to the DC Circuit and say, look, you know, the policy of the United States is this, why are you doing this other thing, right? And it'll have, I think, more impact and we'll be able to solve even the technical problems through a clarification of the IP status and stuff. So Pam also asked me to talk about sort of what if IP law did get out of the way, what sort of innovations would be possible? And for years I've been inspired by Carl's work at resource.org, the Cornell Legal Information Institute that was mentioned earlier, Fastcase, Destilla, Fine Law, all these folks who have had for years been trying to make primary legal materials available to the public for free. I may have never met you or emailed you before, but I've been cheering for you from my computer terminal for years now, right? And so I think if we got something like the law.gov process pushed through, you'd see at least two kinds of innovations. One would be on the technical side and one would be on the research side. On the technical side, you just would make all of those people's jobs much easier, right? You know, if you give them all the primary legal materials and then let them focus on building great search engines or categorization schemes or better websites that are more user-friendly than whatever else, it cuts an enormous, as Carl mentioned, cost out of doing business in this space and allows them to focus their limited resources on those other sorts of technical innovations. I don't want the courts to get in the business of trying to make clever search engines. Just give me the materials and let's let non-profits and private entities sort out how to best provide that information. I think there are a lot of folks out there who would do that. On the research side of things, I have research questions that I really can't answer right now because they'd be too costly. For instance, cyber law is one of the areas that I teach about and do research in. And there are a lot of cases where in the internet context where people get upset with an anonymous commenter on some website and they decide to sue maybe the website or maybe a John Doe and they want to unmask that anonymous commenter and there are first and limit concerns about your right to anonymous speech. And then there's also defamation often involved in those cases. And what you find when you look at a bunch of those cases is that it seems like people are mostly motivated by finding out who it was that said this nasty thing to them and they don't really care about the defamation claim that they purported to have in order to bring the lawsuit. And so these cases disappear very quickly. They're almost never appealed. We have a very hard time getting written opinions in these cases, much less a Supreme Court opinion on this topic, which could greatly clarify the First Amendment rights to anonymous speech issues that come up in these cases. Instead, what we get are varying standards and approaches from various states and district courts. And it's a mess when what we're interpreting as a constitutional question. What I'd like to do is be able to search all of Pacer and find out how many of these suits were filed and went away before there was any opinion at all. And I don't know about them at all. That these are the cases I don't teach in my class because they disappeared before there was even that first motion to dismiss or something, right? It would cost, I don't even know what my patient bill would be, right, for me to look into that. And a lot of these cases get filed in the state court and I've already told you, right, the trial courts are a mess at a state level. It's a thousand different systems and knows what you get. So it's just sort of technically impossible for me to answer a research question that I have right now. And to the extent it is possible, it's cost prohibitive. You know, so why should we impede research in that way? That's what they're making the same. On the technical innovation side, one of the things that I promised I mentioned is a site that a student of mine's been working on is his master's final project. So the problem I also have as a researcher is I like to stay abreast of current developments in the law on an instantaneous basis, right? You know, I want to know when a new circuit court opinion comes out about copyright or trademark or some of my other areas of interest, the same day because I might blog about it and old news is not news at all, right? Or I might want to teach about it in my classes. I might want to add it to some research paper working on it and so on. Other people I think have the same sort of need, journalists, right, who want to write about developments in the law, need timely information about new developments in the law. And there's the general public who has all sorts of reasons for wanting to keep up with what's going on in the law. Supposedly we're bound by this. And there are some pay services that provide this sort of daily awareness type service. And I happen to have access to Lexis and Wesson so I can try to use their systems to do this sort of thing. I find it very unsatisfactory actually because they send me, just today I think I got alerted to opinions from March and I'm like, well thanks now for telling me about this but it seems like they alert me when they get around to putting the opinion in their database and it may not be same day or four hours later which is what I really want. And I don't want to pay for this service. I don't think the public who needs this information should have to pay for it. I think it should be available for free. And so I managed to interest a student in this problem and get him to build a court listener and then listen, right, dot com. And it solves this problem, right? It's in its early beta stages, right? You know, and we owe a debt to a lot of people who have worked on these kinds of issues before but it's a good start, right? It's already working for me and helping with this problem because your alternative was to visit all 13 circuit court websites and the Supreme Court's website and click on the page for published opinions. Look at the case names and try and think about is that party likely to be involved in a copyright dispute? Well, I don't know. Okay, let's click on it and read a paragraph or two and see and it's just, it's not feasible, right? You can't keep up with the areas of law that you're interested in that way. And so by us creating a search engine that scans the full text of these opinions and gives people alerts based on their stated interests, I get delivered in my email inbox a list of the opinions that are likely to be on top of something that I'm interested in and I can focus my efforts on reading those. So law.gov would have helped my student a lot, right? If you guys were done, wow, that would have been easier for him. He spent most of his time and most of the code building the web crawler or scraper to visit all these different websites and try to collect up all these opinions and store them down in our database. If there were just this authenticated feed from the source that Carl talks about, we could just take that and instantly start applying our search engine to it. The opinions would probably look prettier if they would come in some sort of XML format or something else. Instead, we get PDFs and we do our best converting them to plain text and when you use justified margins, all hell breaks loose. And so there's tough technical problems we face now just because of the way things are made available. And so if we could get sort of primary legal materials pushed out at the source, most of the technical effort that we had to go through to get to this point would be over and we could focus on making the site prettier, making the opinions look prettier, fixing a lot of things that are buggy right now. He did a great job, but it's a long way from perfect right now. And so that's just a tiny window into the kinds of things that you could do on the technical side if we got immediate access at the source. You could do it much more easily. I'll stop there. Well, I got a question. I'll certainly lead it off. So Tim Stanley from Justia who you'll be hearing from a little later and I got takedown notices from the state of Oregon because we had the Oregon Revised Statutes online. And the Legislative Council of Oregon who published the Oregon Revised Statutes said they were not a certain copyright over the statutes themselves because nobody can copyright the law. But they were a certain copyright over the annotations and the section names and the section numbers. And so I have really two questions. Question number one, is there any support in the law for a state actor, the Legislative Council of Oregon, to be asserting that copyright over that material? And then what happens if it's not a state actor? What happens in the state of California, for example, where the state says the basic opinions are available but if you want the section names and numbers or other things, then you need to go to our official reporter who happens to be a vendor. And I was wondering if you could comment on the intellectual property issues there. So I think that it's a little murky out there in some of these spaces. And so the text of the statute is something that he concedes but the numbers and descriptors, I think, in a good copyright system are not protected by copyright law. The numbers, so part of the reason why this isn't as clear as it should be is there are some decisions that have taken a very broad view of copyright for numbers associated with descriptive names. So let me just briefly go over that one of these cases, which I tried to stab in this article questioning copyrighted standards. Judge Easterbrook, a very well-known judge in the Seventh Circuit of Appeals, wrote an opinion in a case called American Dental Association versus Delta Dental. And so the American Dental Association had come up with a coding scheme for different types of procedures that dentists do so that they could use the numbers when they filled in the forms for insurance and other kind of reporting purposes. So the idea was that there was, you know, by tooth and by the number of surfaces on the tooth and things like that, right? Then it was like one number for this. And so, you know, so the number was, let's say, 0567.1 is like the front surface of my front tooth. And then, so it was a number, a name of the procedure, and then a short description about the procedure. And what Delta Dental did was it republished the number and the short description, but not the, I mean, the name of the, like, four-word document, but not the sort of a little bit more elaborate thing. So they thought, okay, well, maybe copyright would attach to that, but if I just do the numbers and the name of the procedure, that can't possibly be copyright infringement. And in fact, Judd Easterbrook says, it's creative. In fact, he's not only saying that the coding system as a whole is protected by copyright law, but in one of his, you know, protected by copyright law, but in one of his rhetorical flourishes says that every number and every name of a procedure is an original work of authorship that copyright protects. Now, this is limited, okay, it can't possibly be true, but if I were the legislative counsel of the state of Oregon, I would probably look to something like the Delta Dental case and say, well, you see the name of this thing plus the number and the name of the procedure under Easterbrook has enough creativity in it. It could have been done a different way, right? Instead of 08567.1, it could have been 064235. And it's like, yeah, but this is the name of the procedure and it's not like, you know, kind of expressive, it's like the name of my tooth and how many surfaces it has, okay? So there's something completely wrong about that particular decision. And fortunately, you may not like Justice Roberts, no, Alito, for certain things, but I will tell you that then judge Alito for the Third Circuit Court of Appeals wrote an opinion that rejected a parts numbering system, copyright claim, right? So somebody came up with a name and a number, right? Name and number for parts like pieces of hardware, right? Like nails and stuff like that. So number, name. And claimed under Delta Dental that that was, copyright protected because there were other ways you could have done it, et cetera. And the Third Circuit under Judge Alito's decision actually came out and said, no, that's not copyright protectable. So I would say that especially with Alito now being in the Supreme Court, that Delta Dental case, which is what your guy would probably be relying on has been repudiated by this later decision that analysis, and I think that that's good law and the other one is bad law, but of course the Seventh Circuit and the Third Circuit in some sense have a split on that. And I think that there's an extra reason why not just in the context of numbers for filling out for private insurance, et cetera, purposes by private doctors, but when we're talking about laws, that policy that we've been talking about, which is the public access to law has to be meaningful, then if you can't say what the name of the law is, and this is the section about what kind of notice has to be given, and this is the section about sort of who has standing to sue. If you can't say that, then that's actually an impediment. So I think it's this kind of effort. I think the policy argument is that this is an effort to circumvent the fundamental policy and I think that people like us have to push back against efforts to use that. Now I think comments about the law are a little bit more difficult because there it may be some sort of elaboration about that, about what happened in the law, because it's state and they do get to copyright stuff, it's a little harder for me to say, but I would say especially for a non-profit use of that kind of information, I would say that even if there was copyright in the comments that a non-profit use for the purpose of promoting public access to legal information would be fairly, so that would be at least where I would go in terms of pushing back to. I would say about that. I think, I remember when this happened, this was another instance when I was cheering for my computer terminal at a distance, and what I actually did, this is the Oregon Revised Statutes, which they often abbreviate ORS, so as soon as I saw that this happened, I registered the domain freeors.org and went and got a copy of the Oregon Revised Statutes and was trying to clean them up and post them as quickly as possible because I wanted to invite someone to sue me over it. I thought, sue a copyright lawyer over this, let's see how that goes, and I don't think that's, and you managed to actually resolve it in a much more reasonable way before I ever finished it, and now we have Oregon Laws.org, which is amazing. A student at Lewis and Clark has put up much better than the site I imagine. And before going into academia, I was in litigation, so I take this, when I have a view that, which I do, that the public ought to have free access to primary legal materials, and then someone confronts me with this sort of, we have copyright in our statute, sort of arguing that. I take on the advocate's point of view sometimes a little too quickly and want there to be litigation to say, no, right? You know, actually you don't have a copyright in your statute, and where I would go, and Professor Sanderson is absolutely right, that the actual cases out there now are on both sides, right, and that the folks in Oregon could have looked at the Easterburg opinion and thought they had support there. And she's also right that one of those was wrongly decided, and some other decisions are more accurate, as a policy matter at least. But what I think is that the constitutional basis that I mentioned earlier for this argument has not been fleshed out to its full extent yet in the cases that we have, right, that we've seen it relied on in some of these cases through the years, but that there's more room for growth there, right, that I think when, if some of these kinds of instances aren't resolved in the more friendly way that Carl found to resolve it, right, you know, like going and talking to the folks in Oregon and saying, really, right, you know, and having them back down, if we get into a court on this, I think you can stretch that constitutional basis further than it's been relied on thus far and we can do away with some of this nonsense. So I actually would like to add one more thing, and that is that the part of the problem that individuals have had with kind of efforts to claim copyright and this kind of information has been, that very often, if it's a non-profit or if it's an individual, they don't have the resources to litigate it, and so they kind of, even if they didn't want, they don't have any sort of, somebody that stand up for them and to make the other person sort of back down. Now Carl is a force of nature, so Carl can do it on his own, but one of the reasons that I've helped to encourage legal clinics to pop up at a number of law schools around the country, there's one in Berkeley, there is one at USC Law School, there's one at American University, there's one at Harvard, there's one at Fordham Law School now, is that there are public interest in intellectual property clinics and so if you ever hear of somebody who in fact is wanting to do something and it's getting this kind of old proprietary yada yada, then these are kinds of projects that the clinic students under the clinical professors supervision love to take on, and just a strong letter from, let's say, a Berkeley law school professor saying, we think that this claim that you've made is ridiculous, is sort of something that then gives the little guy a chance to fight back in ways that when it's just that person, especially if it's not already. A copyright lawyer like Brian, who's one of the people to bring it on, there's at least some other, there's now a resource out there that I think the kids love stuff like this. Are you moderate? No, you're moderate. Okay. Yes. How do you get around sort of some of these shrink-wrapped license agreements that we sort of use or access agreements for like the California case law that license provides? Is there a way to do that or is this just like the new way just to block copyright? I'm gonna pass that question to Brian because he's done a lot more research on it. I have good intuition as well. Yeah, it is a problem. If you don't have a taste for litigation, right? There, one comparable situation that just recently came up is a guy wanted to collect all the public data that Facebook makes available, but he knew that the terms of use that Facebook has on the site might prohibit some of the collecting and reuse that he wanted to do. And he found a way to gather all the data without ever agreeing to or viewing their terms of use, collected a whole bunch of stuff, was about to make the public, and Facebook lawyers still managed to shut him down once they started starting talking to him about it. So even when you sort of try to avoid clicking to agree and preserving some argument that I'm not bound by this contractual agreement, it still may not succeed actually when a betty of lawyers come, call in and sending you a threatening letter. It is this contract in run around copyright law that a lot of people are using right now, and I think it's totally illegitimate. That if this stuff is outside the scope of copyright, if that's the decision and policy that Congress has adopted, then private actors ought not be able through boilerplate, click-rap agreement to circumvent Congress's policy decision and get copyright-like protection through contract. I think that those contracts are federally preempted and they ought not survive in the courts. That was just the litigator's argument for you. It's not necessarily the reality, right? The cases are mixed, right? We get these click-rap agreements enforced all the time. Judges, has sort of the port of the case done this and that decision. I held the restriction in the shrink-wrapped license. The Supreme Court, having decided that White Pages listings of telephone directories was not protectable by copyright law, a young guy named Seidenberg, decided he wanted to put the data from the White Pages listings of a database up on the internet and he did it and thought, hey, copyright policy says I can do this, but Judge Easterbrook enforced the shrink-wrapped restriction that came with the CD that he got, which then said it could only make personal use of it and so that was a case in which the copyright preemption argument that Brian was just talking about was raised and rejected by Easterbrook. Now, it is the case that other people and many commentators have criticized that decision and so it's not as firm or ruling as the people who wanna say that all shrink-wrapped restrictions are enforceable, but on the other hand, it's a not-pill battle in the face of decisions like that to say, now I think you get a stronger argument if it's legal information because it's public access and it's a law policy, I think, is stronger as a public policy limitation on contract restrictions, so that's just... I also teach contract law, so Pro CD, the Zeidenberg case, I think is a fantastic example because Easterbrook's opinion is still out there and the commentators hate it, but it's being used by everybody and it's a collision of very strange contract law that applies in the written world as well and that is that courts now presume that you don't read contracts that you sign and so that if you get the click, they develop technical rules about when you hit the I accept little box on the screen that you actually accept everything that you could have looked at, that maybe it's gotta be close enough that you're gonna have to scroll too far, but I think that contract law, and Pam, you probably know this way better than I do, contract law really tried to completely capture IP with the UCA stuff and we got a lot of momentum up that because contract can solve these problems, it can get rid of all the public interest stuff and say this is all just a deal between you and the other contracting party under the old myth that all our contracts are eye to eye, arms like deals, of course they're not, but that got beaten back and so now we're in just another world where I think most commentators would say that Easterbrook and Pro CD is wrong, it's widely criticized, but it's still the state on the ground and nobody's been able to get around it and he followed up with some other decisions that even extended a little further about what it means so it's one of those classic legal problems where there's a case that people don't like but also people can't figure out a way to get around and I think because of the problems of cognition and contractual relations, generally it's hard for people to figure out, barring your constitutional trap door, so he's gonna have to knock that precedent off and it's gonna be very, very hard. There's actually a really neat little kind of idea that Jane Ginsburg, who teaches at Columbia Law School, had some years ago, so there was this time when contract law, especially shrinkwraps were seeming to proliferate and seeming to be things that were gonna take over. You didn't need copyright anymore because the shrinkwrap was gonna give you more control and that's really what was behind this thing that was this licensing law for information once known as Article 2B of the Uniform Commercial Code and then came to be the uniform law or computer information or something like that. So that law actually, 10 years ago, it just seemed like it was inevitable but it was gonna shrinkwrap the entire world and it hasn't come to pass and so the kind of momentum, right? Easterbrook's opinion was written about the time that you see this freight train so it seemed like it's speeding down the tracks and could not be stopped at all. In fact, it was stopped utterly except that Easterbrook's opinion has had this kind of continued life but Jane, during the kind of time when we were debating like what are we gonna do? This thing that I'm doing with this information resource would have been fair use if this issue was raised in the context of copyright law and so Jane came up with the idea of that maybe what contract law needs is a right of fair breach, right? So fair use, fair breach is a kind of a concept. Now it hasn't actually taken hold well because there hasn't been that much litigation about it but preemption, misuse, there's a kind of argument that if you kind of use a shrinkwrap license in order to essentially extend the scope of copyright that that's a misuse of copyright through contract. That's an argument that person could put their mouth around and then there's this fair breach concept and then it's well understood and accepted that there are public policy limitations on what you can do with contracts and so those are doctrinal things that are out there and again some of these clinics are willing to kind of push the envelope on some of these things but I think we have to find the right case. Peter? Yeah, and this is sort of an interesting analog in the Computer Fraud and Abuse Act and the classic problem that's presented in the Computer Fraud and Abuse Act is the problem of a site license. You know, Gordon Kerr's example of the KKK's website that says in order to access the site you have to sign off on our principles and then you have a university researcher who signs off on the principles to gain access to the website is the university researcher committing the crime of unauthorized access to the website, okay? And generally speaking the answer to that if you look at old trespass cases is no because of the old trespass laws of course we're doing exactly the same thing where for instance if you went into an inn which is a public place and didn't pay your bill it may hold an innkeeper for the bill for what you didn't pay for but it's not a trespass, okay? So even if the innkeeper even throws an explicit agreement before you went into the public place it's still not a trespass, of course we're recognizing it's a trespass. Obviously there has to be a similar analogy in the Computer Fraud Abuse Act and this idea of sort of fair breach strikes me particularly when you're trying to manage information. You know, you see this very, very, very interesting analogy across different sectors of the law some of the same techniques that are being used in the context of trying to protect private information and the ideas that people have come up with to try to protect legitimate private information are exactly the same techniques that people are toying around on the copyright side to basically accumulate more power and more control over the proprietary rights of the information but there's a funny way in which all these different areas of the law are starting to merge, you know, the fair use, the fair breach, it's not a trespass. It's a very interesting moment in legal history where a lot of different ideas are converging. Yeah, okay, so I think that's good. When you speak for the first time if you could introduce yourself for at least your name and that'll be helpful for our videographers. Pete Wynn, I work for the Department of Justice. In the back? Oh, I have two, I'm Eimei Wong from UC Berkeley Law Library. I have two questions, one of which is a little bit rhetorical. In the Oregon case, say Brian, who got this question and he got the litigation. Wouldn't the legislative counsel's office be kind of in a strange and absurd position arguing to a court that, I mean the court itself presumably uses the IRS members all the time and where you also sort of demonstrate the absurdity of that position by writing all your briefs while avoiding any statute for any full citations and citing everything to the session laws which presumably the date of enactment and some quotation from the law. And you would have to go back, you know, the statute passed in 2005 which amended the statute passed in 2009 which amended the code originally passed in 1874. And that was sort of... I'm presumably being annoying enough to the court cause them to think twice about that position. I think that's a great argument. And, you know, I think it generalizes also, there's more than just litigation to solve these particular problems. I think that a little shaming or the concern about bad publicity, especially in situations that would be fair breach like situations is that you can basically help educate some people that even if there's a contractual restriction it would not be a good idea to push for that enforcement. And I think a lot of what's happened in these situations which I would regard as hypothetical fair breach situations is that based with the need to litigate even the person who has the shrink-wrapped restriction is in fact often I think declining to sue. Now, unfortunately from the standpoint of lawyers that's rotten because it means there's no precedent but from the standpoint of real people, that works. And so... I think you have two questions? Yeah, the second one. So the court did fold up, CA.gov, this current opinions that are sort of just accessible to whatever extent they are. And then the searchable opinions archive. It goes back to 1850, so it's in statehood, but it's behind the eulah. So, I mean my question, which may be a little viewer-scope, is, you know, is it just that this was an easy way for the court to, you know, if they just put it into the contract that Lexus, the contract for the official reporter that Lexus would provide free search engine but they could sort of put whatever terms on it. And, you know, I guess what are, what's the possibility for making it less restrictive without additional cost to the court system? Oh, sorry. Yeah, I'd only be speculating as to why California decided to go this way, but it seems like it's probably cost right now. It's easier to have an outside vendor handle this than to try to do it yourself. But I guess two things about that. One is, when government actors decide to use an outside vendor with respect to information that ought to be in the public domain, they ought to build into everyone, they ought to be required to build into everyone of those contracts that you can't lock up, right, this information that's supposed to be in the public domain. They just ought not to allow it, and so there's that. But then the other thing is, I actually don't, I complain that the free public portion of the California court website, you know, only goes back to January of this year or so, something like that, but I really don't want them to be in the business of providing me a website that goes back to 1850, right? I want what law.gov wants, you know, a full free feed from the source to let third parties provide that awesome website that will go back to 1850, right? Just give me the documents, you know, give me a big tar zip of them, right? I don't care, right, you know, just get, you know, make those available in some form, even in raw form, but authenticated, and let third parties, not the court system, you know, maintain a website that provides those to the public. Lexus wouldn't play anymore. Well, we don't know that, actually. I think that part of what, I think, even in this, let's just assume that Carl's vision material is, I don't think that necessarily means that Lexus and Westlaw collapse in a pile, because they have more than just the information that we're looking to have be freely available. And so I think that there's still a market opportunity for them. I think it will actually put some, the success of this project will put some pressure on them to be more price-friendly, to create maybe more tiers, so that some of the public interest organizations that today can't afford it access to that could get access to it maybe in the future. It also puts pressure on them to be less restrictive. And they don't want, I believe, they don't want to come out and say, oh, we hate all this open stuff. It's like, actually, they're gonna have to learn to be good players in this environment, and then be clear about what value that they're adding besides whatever it is that is an overlap between what the law.gov is gonna be doing, and what they do. And then that's, I would concentrate if I were they, on where my value at is. And they have a lot of things that no question, okay, Carl and I are gonna be able to put up the treatises that are written by scholars. It's like, that's not what this project is about. This project is about making the public domain information really available to the public. Great, thank you very much. I would agree with Professor Samuelson. Most of the vendors feel very strongly that they add true value to this data. They're not simply taking public domain data and offering it up, that they actually offer things that people will pay for. And as we said earlier, this is as much about innovation. I think companies like West and Lexus Nexus will face an IBM moment, and they have to decide whether their business model will evolve over time. But they certainly have a tremendous opportunity and when you think about it, we're trying to make legal information available to a much broader audience. That's a bigger market and that's a market opportunity for the established vendors.