 Well, thank you, Rob, and thank you to Nicola Davidson and the IP Association. I'm going to be reading a little bit of material here because I found some wonderful quotes in history. I want to talk about three revolutions in American law. I want to start with the American Revolution, and I want to talk about building a national jurisprudence, and particularly a case called Wheaton v. Peters that many of you may have studied. And then finally talk about liberating American law, which is my reason for being up here. I actually had come up to meet with Attorney General Kroger. He was unfortunately quite sick with the flu. He was actually in the hospital, and so I won't be meeting with him today, but I will be calling him on the phone next week. So let me start with the American Revolution, and I actually want to start in England. On March 22nd in 1775, the right Honorable Edmund Burke, who is a leading member of the British Parliament, gave a speech of a lifetime, and the name of that speech was on conciliation with the colonies. And it was about why England should stop this silly war with America, and it gave six reasons. And they were good reasons. Reason number one was, you know, there's a couple million Americans, and that's an awful lot of people to beat in the submission. Reason number two was they're on the other side of the ocean and it takes us a few months to get over there, and it's very hard to do a war when it takes three months to get an order transmitted. Reason number three was they're very clever, these Americans. They're making a lot of money, and if we weren't trying to beat them in the submission, maybe we could make some of that money. And those were all very good, but the one I liked was reason number six. And he said, in no country, perhaps in the world, is a law so general of study. The greater numbers of the deputies sent to the Congress were lawyers, and all who read and most do read endeavor to obtain some smattering in that science. Smattering is an old word that means to study, but not as a professional. So I'm a smatterer in the law because I don't have a license to practice. If you fix your own electrical system, you are smattering an electricity. And he remarked that so many people were smattering in the science of the law. And he gave two pieces of evidence. One was that if many copies of Blackstone's commentaries had been sold in America as were sold in England, a much bigger country. And the second was all the people in the government of America are lawyers, or smatters in the law. And of course in the English parliament, they were not lawyers. The right Honorable Edmund Burke was a lawyer. But most people were gentlemen, and they didn't work as lawyers or members of the bar. They were simply gentlemen. And the effect of the fact that all these Americans were like looking at the law. And this was the corker, the end of his big speech. This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources. In other countries, the people, more simple and of a less mercurial class, judge of an ill principle in government only by an actual grievance. Here, they anticipate the evil and judge of the pressure of the grievance by the madness of the principle. They augur misgovernment at a distance and snuff the approach of tyranny and every tainted grievance. And so America's always had a very special commitment to making the law available. Law has had a special place in our system of government, but it's been available more generally to the population. How did that get implemented though? And there is a long and torturous path as to how we make a law available to Americans. In the early days of the Supreme Court, they didn't issue opinions. What happened is the justices would get in a room and they kind of say their piece. And there were no reporters and people didn't write these things down. And if you wanted to know what the Supreme Court had to say, you went and found somebody at a bar, and by a bar, I mean a place they sell whiskey. And you asked them what the Supreme Court had to say. And so in 1791, the Supreme Court moved from New York to Philadelphia, the new seat of government. And there was a gentleman there named Alexander J. Dallas, who had to supplement his income taken upon himself to report on all the local courts. And the Supreme Court moved into his jurisdiction, became a local court, and he started issuing the Dallas reports. Now in the first year, the Supreme Court didn't actually do anything. So if you look at one U.S. report, you'll see there's actually no Supreme Court opinions. But Dallas over time went and began reporting, and he was a busy guy, and so he didn't make it every time, and he had to ask people what happened, and he wrote up his reports, but there were two problems. He was really slow. It took him five years after the last case was decided for two Dallas before he actually issued the reports. And when he retired in 1800, it took him seven years to publish four Dallas. The fourth volume of the U.S. reports. The other problem was the reports were notoriously enacted. They simply did not report what the court said to say. So in 1800, the new government moved to Washington, D.C., and a guy named William Cratch had moved to D.C. He was an ethno of President John Adams, and he moved there for a real estate deal, a big speculation deal, and it went totally bust. And he had nothing to do, and so he needed a job. And so he took it upon himself to become a reporter of the Supreme Court of the United States, and he began issuing reports. Self-appointment. Nobody had to point it into this job. And like Dallas, he was slow, and he was inaccurate, and the reports were extensive, and it was so bad that the Attorney General, who needed these precedents in order to argue, said that the reporter ought to be supplanted as some penalty for his inexcusable displays. And at that point, the Attorney General, Attorney General Rush, and just the story that you may have read about, one of the real leaders of the founding of American jurisprudence, thought about a young New York lawyer named Henry Wheaton. And Henry Wheaton had made his name in New York by publishing the Digest of the Law of Maritime Captures and Prizes, and it was a beautiful scholarly work, and it was really well done. And so they went and they saw Wheaton, and they convinced him to move to Washington, D.C. Now, Washington, D.C. in those days was described as a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort. Not that different from today. The Justices actually all grew together in one rooming house, and it took all their meals together, because that was the only place they could find near their office. And so Wheaton became their roommate, moved in with the Supreme Court, attended every single session, and from 1816 to 1827, he did an amazing job. His reports were accurate. He attended every session. He got the Justices to give him their notes. His books were beautiful with lots of white space and beautiful bindings, prepared abstracts and cloth indices. And he was timely. Within two months of the end of the 1816 term, he had his report ready to publish. He presided over what's known as the Golden Book of American Law, cases like McCulloch v. Maryland, Gibbons v. Auton, cases you've probably all read about. And he did it for 12 years. He was so effective that the Supreme Court urged and the Congress gave him a thousand bucks as a salary, but it wasn't really a salary because in return he also had to give 80 copies of each of his books to the government to use. And after about 12 years, he resigned because he just wasn't making enough money. And he took a State Department post in Denmark at four times what he was making as the Supreme Court before. And so in 1828, the court appointed a guy named Richard Peters, Jr. Now, unlike Wheaton, Peters was a businessman, right? He wasn't really a scholar of the law. And he wanted to make money at this. And so he did two things. He issued the annual reports. And they weren't as nice as the previous ones from Wheaton. The paper was cheaper. They weren't as big of margins. The binding wasn't as good. But they were cheaper to produce. And the Supreme Court liked that. He had a second component, though. In those days, if you wanted, even today, if you want to practice the law, you need everything, right? You need the full corpus. And if you wanted to buy the two volumes of Dallas, the nine volumes of Pransch and the 12 volumes of Wheaton, that would cost you $130. And in those days, most lawyers were making less than $100 a year. So this was expensive. So Peters had a scheme and he proposed to publish the condensed reports of cases of the Supreme Court. And for 36 bucks, he promised you could get the entire back file. Get everything. 27% of the current price. The condensed reports wouldn't be nearly as nice, right? He was going to leave out the dissenting report, the opinions and the concurring opinions and no abstracts, no arguments of counsel, no scholarly notes like Wheaton did. But they'd be cheap, $6 a volume. And the justices were intent on building a national jurisprudence. They knew that lawyers had to have copies of the cases and so they said, fine, go for it. The reporters, on the other hand, that had done the previous volumes weren't as impressed. Now, Dallas by this time was dead and his copyright had expired, so that wasn't a big deal for him. Pransch was a sitting judge in the District of Columbia by that time, and he was still out of pocket $1,000 for having produced the Pransch reports on that enterprise. And he had hoped that over time more volumes of Pransch would sell and he'd make his money back. He ended up settling. And what happened is Peter said, okay, I'll give you 50 copies of each of the condensed reports and you can turn around and sell those. And so Pransch was just happy. Wheaton, on the other hand, was not happy at all because he was counting on the Wheaton reports to be his retirement fund. He hadn't made him much money yet, but it was his next day. So Peter started publishing and he started with Dallas and then Pransch and in 1929 he had the first reported Dallas out. Now, he was a smart guy, Peter's. He dedicated the first volume most respectfully and affectionately to Chief Justice Marshall. He made sure to get a free copy over to Justice Story with a nice inscription on it. And they were a big success. They sold out in 1931 when Volume 3 appeared. He had printed 1,500 copies and he had advanced sales for 900 of those. So he's actually getting these things out the door and moving some products. And in 1831 he published the first condensed reports from Wheaton. And Wheaton sued. Daniel Webster as his attorney. And there were injunctions and the injunctions were dismissed and it went back and forth and it was just the total mess. And it was really clear this was going to go all the way to the top. This was going to have to go to the Supreme Court. In 1834 it was ready for the Supreme Court. And Wheaton came back from Denmark ready to prepare his case. And he was piss-off. Peter saw him in the street and wrote back to a friend that Mr. Wheaton appeared to be very mad. Very hard on his case. Went to prepare his argument. He said he was the author as the reporter. He had the exclusive right to copy these materials. He had performed a public service. He was counting on the revenue. He had a right to a copyright in these materials. Now Peter saw that tactic. He did a couple things. He said, well first of all Wheaton failed to properly secure his copyright by filing his copies. And so he tried a variety of administrative reasons. And then he advanced the novel argument. He said in his brief, 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 to counteract that policy. Now the court really didn't want this case. Remember they lived with these guys, right? Wheaton was their roommate. He was a buddy of stories. And so just the story on March 18th and 1834 called all three of the living reporters into his chambers. Called in Cratch and Wheaton and Peter. I think it was very friendly. And he said he was acting entirely on his own book. It wasn't the court. But he told the reporters that if the court were to rule on this, they would say there is no right of property of opinion to the court. But he strongly believed that the matter was a fit subject for honorable compromise between the parties. And he wanted them to settle. And Wheaton would have none of it. He didn't want compromise. He wanted the court to rule. At that point he was really pissed off. And so the next day the court met. Now just the story conveniently was on the A to M stage out of town. And the court in those days was kind of dysfunctional. Andrew Jackson was the president and he was loading the court with people that were very much against people like Chief Justice Marshall. Chief Justice Marshall was getting old. The dignity and character and courtesy of the court had declined remarkably. There was a lot of argument. Some of the judges were deaf. Some had severe indisposition. Justice Baldwin was one of the new justices and he was known to be not only but occasionally violent. So on March 19th the court met without justice story. And Justice McClain read the opinion of the court. And as he read it, these are letters that went back and forth. And by the way there's a wonderful article by Craig Joyce. You can search him in SSRN.com and Craig Joyce goes through the early materials for Wheaton v. Peters and many of my quotes are drawn from his scholarly articles. Wheaton became strongly excited during his reading. Thomas and Baldwin delivered dissents. McClain rejoined that their dissents were totally misplaced. Thompson responded with intemperate warmth. These are strong averages for those day and age. Marshall of course revered Chief Justice trying to make peace and he made a statement of statutory construction which of course everybody listened to very respectfully. McClain couldn't leave well enough alone that that's what he had meant in the first place. And he re-read that part of his opinion and then remarked to the end that this dialogue across from one to another was very unpleasant that had been occurring. Of course Thompson at that point rejoined in a perfect boil. Baldwin showed in no uncertain terms by looks and motions and whispers that he was not pleased and had a strong passion at his back. Justice DeVal sat utterly dumbstruck by the grotesqueness of the scene and wrote back later that a large number of the bar looked on in anxiety and grief in short all hell broke loose. But the ruling was complicated and I do urge you to read it because it's one of the fundamental pieces of early copyright law. It's the first ruling on the Copyright Act. But the last sentence of that opinion is the one that really matters and in that one Justice said it may be properly remarked that the court unanimously of opinion that no lawyer 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. This was new jurisprudence. Prior to that it was conceivable at least that the reporters own the copyright in their work. Remember opinions weren't being delivered and so the reporters were kind of making it up right so it was in a sense their opinions. But the justices here felt that this was an important piece of the emerging national jurisprudence they were putting together. So Wheaton went back to Denmark, ended up serving six presidents. He wrote the classic treatise on American law, on international law. Dyer Revere-Figure. By 1843 the justices had had enough of the inaccuracies of Peter and they summarily fired and they moved on to a new reporter and in fact that was the end of the named reports if you will. At that point the court took much much stronger control over a lot of their opinions. So this policy, the access to the law of the land shall be unfettered by property claims and copyrights is one that has been consistently stated ever since. Now there are some complications but the basic principle for example in Bansby, Manchester in 1988 they applied this principle to state opinions as well as federal and let me quote, they 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 of proprietorship as against the public at large in the fruits of their judicial labors. This extends to whatever work they perform in their capacity as judges as well as to the sequence of cases and head notes prepared by them as such and such as opinions and decisions themselves. The question is one of public policy and there has always been a judicial consensus from the time and the decision in the case of Wheaton B. Peters and then they go on and they quote that famous sentence that I just showed you. This policy has applied not only to state court opinions but to state statutes in Howell v. Miller in 1898 Justice Harlan stated that no one can obtain the exclusive right to publish the laws of a state in a book prepared by him. So the core principle is very clear while states may own a copyright they may not own a copyright in the law. There is a protected center. It is conceivable that a state can own copyright in a training film or in a brochure or in a book and that's a different issue. But at the center the statutes and the opinions and the primary legal materials there is no copyright. Now this principle has sometimes been confused when external vendors are commissioned to become reporters and these vendors add values to the basic laws. For statutes they might create an index or annotations for laws that the vendors may create headnotes. But even here the courts have been careful and have repeatedly ruled that the law itself has no copyright. Indeed even if the law was 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 codes, fuel and gas. These are the laws that most directly touch our daily lives. Every contractor has to understand how our building codes work. Most of these public safety codes are developed by non-profit organizations such as the National Fire Protection Association and the International Code Consortium. These standard model codes are then incorporated by reference by typically state legislatures declaring them to be the law in a given jurisdiction. And most of these model codes in fact have a page at the beginning that show they are meant to be the law. Typically the first page says has a sample resolution that reads we the people of in certain name of jurisdiction here do hereby enact the following as a law of the land. So we now get to the third revolution the liberation of American law. In 2002 Peter Beck in Texas spent $74 and he bought and posted a model code for his northern Texas community. The Southern Building Code Congress sued him for copyright infringement. The district court granted the code people an injunction and monetary damages and paid appeal. And in 2004 the Fifth Circuit the Court of Appeals reversed. And they were very clear citing their brethren in the first circuit it is hard to see how the public's essential do process right of free access to the law. That's 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. It is difficult to see how that can be reconciled with the exclusivity afforded of a private copyright holder. Perhaps there is copyright in a model building code but once that code becomes law it has no copyright. Now you may say to yourself well what about those poor code people they need the money in order to fund the code building process. And one person put it to me when I posted the fire codes for the entire country online you are making it harder for people to develop high quality fire code, you are killing people. Now I don't believe that. I thought that was a little over the edge. And the court didn't believe it either and any of the three reasons why posting these codes online would not destroy our voluntary code building process. While they said the building codes existed for 60 years no court had ever ruled that the building codes was enacted by law or copyright. So that would have been a market departure from previous public policy. They also said these codes would exist even without copyright and the court said 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 that. However copyright is there to promote the arts and musical sciences, right? It's not there necessarily to give people money that's a nice side of things. Reason number three the court gave is that the court people were in a favored position to make money from value added products. They could quote easily publish them as do the compilers of statutes and judicial opinions with value added in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees with a massive amount of interpretive information about the codes that it doles out. In short we are unpersuaded that the removal of copyright protection from model codes only went and to the extent they are enacted into law disserves the progress of science in the useful arts. And I agree with the value added thing. If you look at these codes they're very complex and if you want the ultimate seminar on how to use a fire code or the annotations of the fire code who better than the National Fire Protection Association to go to for your seminar. And so by having your stuff enacted into law they actually get huge monetary value. So this principle that nobody owns a law is one that's deeply meshed in the fundamental principles of our constitution. I mean seriously when we say we are a nation of laws not of men it means that we fit down what we do. We don't arbitrarily rule. How can we have equal protection under the laws if those laws are locked up behind a cash register? How can we have due process if the only way to access the laws is by having a credit card with enough room on it? It's truly an issue that's fundamental. But it's an issue that's honored mostly in the breach. You may remember a year ago my organization in Justia one of the leaders in the free law movement received a takedown notice from the Oregon Legislature saying we had violated their copyright in the Oregon revised statutes and we stood our ground in fact we were prepared to go to court we drafted a Declaratory Relief Judgment Action actually published it on the NAT and asked people if they had any comments on it and in what I have called many times a shining example of democracy in action the state legislature held hearings they brought us up and they asked us what we thought they asked the legislative counsel what he thought they asked the citizens of Oregon what they thought and then unanimously voted to waive any assertions of copyright so they did not say we do not have the right to make copyright they simply said if we have the right to copyright we're just happy to enforce it and the result of removing these barriers is that we went from the Oregon revised statute site which was awful he said come on I'm sorry I've been doing database programming for two decades this was very bad and Rob Sector here of Lewis and Clark came out with OregonLaws.org and it's just a wonderful example of how legal information can be made dramatically better once the fences around the public domain have been removed this is as much about innovation in the legal marketplace as it is about democracy and justice it's about giving better tools to people to practice the law but despite clear national public policy despite clear legislative policy in Oregon copyright continues to be asserted Professor Bill Harbaugh of the University of Oregon decided he wanted to make available the Oregon Attorney General's public meeting and public record manual and he was faced with a copyright assertion in a store in mourning and this material could not be deployed without explicit permission of the so-called owner the Attorney General and the State of Oregon so the Attorney General's public meeting manual can you think of a better case study for something that ought to be available there's only one example in Oregon of assertions of copyright by the executive branch the Secretary of State has a similar chilling warning prohibiting reuse of the Oregon administrative rules of bulletin and that's a system by which all the regulations in the executive branch are promulgated and there's more examples the Oregon Fire Marshal responsible for enacting the fire code but if you go look at their website they are pushing everybody off to a commercial vendor to spend $100 and if you want to look at the fire code the International Code Consortium has put together a Crippleware website for the public no search capability you have to know exactly what you want you can't print you can't save you can't download so every attempt is to limit your ability to read the Oregon Fire Code unless you spend money with a designated vendor and not only that the designated vendor doesn't give any money back to the State right it's not like the State is getting a loyalty off that same thing is true with the Building Safety Division part of the ironically named Department of Consumer and Business Services again if you go there and look at the building codes at the structural integrity codes at the residential code same thing the Crippleware site available in which you can't search you can't save you can't print you can't download all you can do is read on screen if you happen to have the right browser this stuff isn't even browser compatible but they really want you to go off and the agent of these copyright sales of these code sales is again mistakes I think this is a situation where Oregon can pick certain national leadership explicitly rejecting the policies that were set in place decades ago and when I talked to Attorney General Kroger's staff the first thing I said is look I understand you are implementing a law that probably comes from the 1940s but that doesn't mean it's right at the national level there's also a huge opportunity for making this material much more broadly available the federal government spends hundreds of millions of dollars accessing primary legal materials as a small fraction of the 10 billion dollars a year Americans spend accessing the raw materials of our democracy recently public.resource.org has teamed up with our colleagues at law schools around the country we have 12 top law schools Yale, Stanford, Harvard, Berkeley Duke University of Texas and we are convening a series of workshops over the next six months to try to persuade the government the federal government to create what we call law.gov you may be familiar with data.gov in which you can do bulk download of information from the federal government it's one of the shining examples of the Obama administration's new dedication to open government we would like to persuade them that they can do law.gov which is an authenticated distributed open source registry and repository of all primary legal materials in the United States they will save the federal government over a billion dollars with little spill off effects like law students being able to access things like the PACER database which is carefully rationed right now with legal research suddenly becoming capable because you can download the entire corpus and examine it for systematic discrimination or privacy violations or other things we could do today but are impossible to do and I'm very pleased that as part of this effort not only we have the top law schools my former boss John Podesta who ran the transition team for President Obama has joined me as a co-convener Senator Lieberman on behalf of the United States Senate has asked us to submit a copy of our report I've been discussing this with many agency heads and people in Congress and I think we have a shot at least at preparing a report with sample enabling legislation a bill of materials that explains exactly what we mean by primary materials a business plan and all the materials needed to present this to the President, to the Chief Justice to the Congress and convince them that this is something they can add as a function of government and our vision is that this is based on open source software so any state can download the software and run their own registry of primary legal materials Now here in Oregon one of the reasons I like Oregon and I'm a former resident of the city by the way I lived here for many years I worked as a volunteer firefighter here one of the reasons I like Oregon is unlike many other states Oregon as a state asserts copyright they don't farm this out the west in Lexis Oregon prints and sells their own materials and I think this is a wonderful test case because I think this is an opportunity to demonstrate that a state government police primary legal materials need to be broadly available and my request to Attorney General is a very simple there's a dispute on the table it's a valid dispute it goes across several agencies of government the Secretary of State, the Fire Marshal as well as himself I would like him to issue an Attorney General opinion and the Oregon Attorney General's public meeting manual is officially an Attorney General opinion and I'd like him to issue that opinion on what materials may the state assert copyright on and I'm convinced that after he does the research and looks at these issues and talks to the citizens of the state that he'll come to the same conclusion and I've tried to lay out for you today and if you think that this is something that the Attorney General should do I hope you'll like to him or knock on his door when he's here on campus next and let him know you think this is a real issue I'll be speaking at the University of Oregon tomorrow and then next week I'm going to try to take these lecture notes and write them up as an essay and give them to Attorney General and try to make the case that this is an example where Oregon can do something very valuable on a national scale to help establish this principle that America's operating system the rules by which our society lives ought to be open source questions I think we have 20 minutes nothing to entertain any questions yes I noticed that they basically argued that court opinions were not covered because statutes aren't subject to copyright and no one is subject to copyright copyright and statutory codes that's just silly both sides are arguing this the plaintiff tried to say well it is very much it's not at all anything like statutes, court opinions or no no no it's exactly not a statute but now we have over half the states copyright and statutes which I find very interesting because in the 18th and 19th century it seemed pretty clear I think it's still pretty clear and that's one of the things the Oregon legislature did in their report to the legislative council went and did a survey and they said 26 states have assertions of copyright over their statutes maybe we are allowed to assert I believe this is an instance in which I don't know why but we have simply ignored what has clearly established national policy and I think when you talk about statutes and court opinions state or federal that's extremely clear there is no copyright on those and to assert copyright or to delegate exclusive commercial rights which is often done I think it's just clearly wrong I think when you get to an attorney general opinion which is viewed with great deference by the courts but is not necessarily the law I think that's on the edge of that cloud of primary legal materials but I think with statutes it's clear and I've actually been working with the EFF who represents me and I've been talking to the ACLU and others and we are looking for our test case we thought we had it in Oregon but Oregon did the right thing and we'd always rather settle and simply resolve the situation so we are actually looking around and trying to decide which of the states is likely one of the issues is I can't go into court and sue the state of Mississippi for a copyright assertion if there is no threat there is no dispute and so when Oregon sent us a takedown notice this is good which is why again Oregon sent a takedown notice on the Oregon Attorney General's public meeting manual that seemed like an opportunity to press the issue a little bit more but on the state statutes I just don't think anybody can read the laws the court cases and say that there is any sustainable copyright interest but it's got a huge chilling effect when you see that copyright notice as a businessman you're not going to take that stuff and it's a huge issue for those of us working in the open law movement because we want to take statutes from all 50 states and I can't go clear copyright right with 50 different states and sub-agencies and it just makes it impractical to build that national collection of the law and that's something that public policy argues we should have so Pacer is the district court dockets and opinions is for all our federal trial courts we have 8 cents a page to access if you are a law student you probably don't have access to Pacer because the law library doesn't want to spend money on you so Pacer is 8 cents a page the administrative office of the courts is bringing in $100 million a year in Pacer revenue at this point it's big business for them we believe they are charging more than their actual cost of dissemination and Senator Lieberman sent them a note about that and they ended up with a judiciary IT revolving fund that had $150 million in it and the health appropriations committee said what are you doing with all that money you would have uprooted public access and so the administrative office with the government printing office came up with a first step which is they would do a public access program in 17 specific libraries so whether members of the public had a desire to look at this material there's a feeling in the administrative office of the courts that the only people who care are pro-state prisoners and there is a fee waiver for prisoners and people representing themselves to get free Pacer but the idea is that normal people just have no interest in this stuff so they put these 17 test sites out there now that's one library for every 20,000 square miles in the United States so it's not necessarily one right next door to Sacramento and they ran this for a few years now I had a Pacer recycling site that was up www.pacer.resource.org in which I encouraged people what I call the thumb drive core to go to these public access sites and download some documents and upload them as soon as we make them available for everyone recycle your Pacer docs to save the public domain young gentleman looked at that and took it to heart Sacramento Public Library to start downloading documents and about a month later when the courts woke up and finally looked at their access laws they noticed that the biggest user in the nation was now the Sacramento Public Library and he had brought in 20 million pages and they promptly cancelled the entire program no notice whatsoever, no explanation cancelled an entire national program they called the FBI and sent them off after this gentleman now I had the data to my system and we audited that data for privacy violations found numerous social security numbers huge number, I'm talking like 100 page document in a medical malpractice suit that had all the patients for that doctor 400 patients named home address, social security number age and medical and psychological problems all listed all perfectly available to the public and this was on West it was on Lexus, it was on Pacer right so this was not private information at this point, we did a full audit sent it to Judge Rosenfall 150 page document, complete with a DVD that had the redacted and the unredacted documents and a handy little HTML page so you can compare them sent it in to her the administrative office of the courts sent a preliminary audit and a final audit made notice started sending it to the 30 district courts that we had done the audit on and I started sending third and final notices sent to the Chief Judge and I said notified notice one, notice two now these went to the administrative office and we knew they had to show them to the judges so when I said third and final notices for the first time they were looking at this and big red letters it was something I did with a big gulp because we don't like to send a Chief Judge a third and final notice Chief Judge Lambert from the DC district wrote me back immediately, said you're right we've removed those documents we started walking through the courts one by one every one of them ended up agreeing that these were violations, some refused to act and said it was a lawyer's job and we said no, you need to notify the lawyers Senator Lieberman picked this up, sent a long fairly nasty note to the administrative office of the courts addressed also to the judicial conference asked how can we charge you so much what about the privacy issues New York Times picked it up, always gets their attention Judge Rosenfall answered and on behalf of the judicial conference said you're right we got privacy problems Mr. Duff answered on behalf of the administrative office of the courts and said this money is none of your concern Congress didn't allocate any money we're just covering our costs and so they said the hell is it on the money but on privacy they admitted it was an issue three months later judicial conference had a new privacy rule in place and that's got to be a record for a judicial conference rule change and now whenever a lawyer logs in a pacer they have to click a box for privacy responsibilities when they file a document it says having filed they have developed and hopefully are deploying software to proactively scan for privacy issues in the meantime the law librarians are all saying well what about this public access program it's been dead for a year now Senate is exerting significant pressure on both the public administrative office of the courts I believe they're about a month away from the program and getting it back online but it's still just a very first step Erika Wayne from Stanford Law Library prepared a petition over a thousand people signed it and that petition went to the courts and the Congress and it said every document of pacer should be digitally signed this is a no-brainer these days and we want a copy of every pacer document for the federal depository library program I don't know if that petition is going to be granted but there's significant pressure on the courts right now to do something value-added services and I assume that West unless this with head mounts and annotations and everything like that how far does that idea stretch in terms of taking imagine just a printed statute you might have an index or something you put it into a database and add searching capability and cross-characters and capability without even adding any information to it you in a sense add a value of usability is that is there a threshold where you say this ought to be a public domain but at some point you've added enough value to it that you could exert some kind of I think if West puts it into a database as a private actor that they should be able to get copyright on their database that's a compilation that makes a lot of sense on the other hand if it's a state actor that did that index or that annotation, no and that was our argument with the Oregon legislature that wasn't West that was doing the annotations it was the lawyer for the legislature that was doing the annotation and then a second issue is if as acting as an agent of the state West is the official reporter of some jurisdiction and by adding value they coordinate off the public domain and making it possible to get to that core in the center then I think there's a public policy issue and that's why we're pushing law.gov because that way you've got a distributed authenticated repository West and Lexus and anybody else can download, add value and it makes the line much clearer and right now we have this very weird situation in which the law is public but the page numbers in the official reports are not and so how do you pull out the public part from the private part and that's an issue I have with the current system. I have no objection to West and Lexus making billions of dollars as long as competition is there and to me this is much a barrier to entering an innovation issue as it is in anything else. Better competition. Questions? Software licensing to documents like this like thinking about you know as a programmer you can use this open source free stuff to make money but if you do you also must make available for download the original part of the free part as well so there's two issues there one is commercial versus non-commercial and the Oregon legislature actually offered to do a non-commercial use only license as a negotiating position we turned that down because you know what's the line between commercial and non-commercial there's no restrictions. So that's one issue. The other issue could instead of saying there's no copyright could the Attorney General simply license it under Creative Commons you can do anything you want at a tradition request you know I'd be fine with that I still don't think he's got a valid copyright but you know this is a pragmatic thing and as long as the material becomes available and there's progress and a recognition of the public's access I could probably move with that but I still think you know certainly on statutes you know you really there is no license to grant because you don't own the property in the first place and like I said the Attorney General opinions are right on the edge of that cloud so if he were to say well you know we're not going to wave copyright but we will do Creative Commons and allow anybody to use it I'd probably go for another speak. Great, thank you very much.