 I guess we'll get going. I think some of the people are straggling in, but we might as well get started. Thank you so much for coming. Welcome to this Law.gov workshop. Before I begin, I'd like to thank the people who organized it. Carl Malamud, who I'll be talking about in a moment, the head who's really the inspiration behind the Law.gov initiative is the person who really approached us and did all the driving work and made this possible. Jennifer Jenkins did all of the logistical and organizational, also conceptual work of putting together the various presentations and steering our, I think, quite biddable speakers into their various positions. And Balfour Smith, who's outside, was, as always, indispensable in getting it worked out. A few administrative announcements. Carl Sturdenly admonished me to tell you that if you wish to tweet or to access the tweets about this, the hashtag is hashtag L-A-W-G-O-V, no period. Also, the students are in exams right now, and so we ask you, we will keep the coffee and lunch and so forth immediately in here or in the next-door room. And so if you're after the sessions or at lunchtime, if you could go out into the beautiful sparkling day or get down into the Star Commons, the beautiful space out there, rather than congregating right out here because people will be taking exams, so we appreciate your kindness in that. I was at a conference in Stockholm recently where the organizer introduced me by saying, this is James Boyle, we couldn't get a better speaker. And as a person who writes reference letters for a living which have lots of similar phrases, you will be very lucky to get him to work for you. I recommend this candidate utterly without qualifications. And he always stood out in the class. Being a cognoscent of such things occurred to me that this actually was a somewhat ambiguous commendation. We couldn't get better speakers, but in the positive sense, it is in fact true that today we couldn't get better speakers. We really have a remarkable number of speakers here and I want to, I will introduce the people who are gonna talk on this panel. And I just like to go into slightly more depth than I would normally do because some of them are our own colleagues and it's all too easy that we skip over the achievements of those on our own faculty. Following me will be Dick Danner. Dick is the person who has had all of Duke's Law Journal's online info for free since 1996, Dick. What? About that. Five? No. Okay, six. We'll go with six. The fuzziness is in the other direction. Okay, and as those of you who've studied the history of the web knows, this is almost prehistoric times. Dick is a leader in the library community, in the community on open access scholarship more generally. One of the architects of the Durham Statement which has aiming to make law reviews open to the public, a very distinguished law librarian and fabulous colleague and he's gonna be giving us a background on attempts to open up along the scholarly materials, the surrounding apparatus and the problems that have been faced there. Our own David Levy is, our dean is going to be talking about the obstacles and difficulties which would have to be faced in order to fulfill the important challenge of getting legal materials, primarily legal materials online, serious issues about privacy, about authentication. Is this in fact the final version of an opinion about whether or not unpublished opinions are put up there? All of these I think very real problems and one of the things that commended Carl's approach to the law.gov project to us was that this is really viewed not as a we have the answer and now we are going to pound the table and tell you about it but rather as a nationwide exploration of the difficulties in opening up legal materials to the public. But beyond David's role as our dean and speaking as a former judge, I think it may be it's easy for those of us who are here to sort of forget just the incredible depth of his knowledge, not only somebody who's worked on the rules committees in the American Law Institute as a fellow of the American Academy of Arts and Sciences but really someone who as a judge was a thought leader in the judiciary and actually was deeply committed to the idea that the judiciary is important and that it fulfills a vital function and that it can continually do so better. So again, we couldn't have a better person to speak on these issues. And finally, Carl Malamud. Carl, like Justice Dick, was at the get go of getting legal materials online for free. I think the first time I ever saw Carl's name was when he was maybe working with Paul Jones on the original Sunsite. This is again architectural time in the world of the web. They're putting up the Edgar database, the Securities and Exchange Commission database. Carl has been described, I think not by himself but by others as a rogue archivist, which I love. It's a sort of insurgent librarian is then presumably the companion phrase to that in its slightly unusual pairing of adjective and noun. But one of the things that has marked all of his work has been a deep commitment to the idea of opening public information and public resources to the public, frequently the public that has paid for them, whether it's the patent and trademark office's databases, whether it's the law of the states or the federal government, or whether it's financial information. And the idea that sunlight is the best disinfectant and that open markets work best on open information are, I think, ideas that are deeply coded into his DNA. And so he's as the head of publicresource.org, is the driving force of law.gov. He's an ideal person to talk about this initiative. So my job is to set the stage, at least conceptually, and to introduce the ideas that we'll be talking about today, but from a much more general and sort of broad 50,000 feet level. So I want to start with a story and then turn to a little bit of an analysis of where this project might fit in the larger landscape of American information policy. So the story is this. Around six or seven, maybe 10 years ago, economists became aware that there was this thing called open source software. And they were puzzled by it because it was produced by people, some of whom weren't being paid to produce it, others were being paid. Those people were producing it and putting it out on a variety of open licenses which meant that it could be copied freely. In fact, many of these licenses required someone who modified the code and then republished it to put it out under the same license. So an ever-expanding commons of material was made out here. It was assembled by a decentralized process which wasn't obvious. There was no obvious coordination function. There were people, there were nodes, there were structures, but how exactly did it get put together? All of these people somehow came together to form this ecosystem of creativity, deeply committed not just to the idea that people should be able to copy this material, but to the idea that it should be open. The phrase frequently used was this notion that the hood of the car should not be welded shut, that you should be able to see what code you were running, whether it was on your voting machine or your laptop or the web server and indeed open source software powers most of the world's web servers or your ATM or your TVO or the plane you're flying, all of these probably are using open source software. And the economists were just puzzled because this seemed to them initially to violate all of the rules of production. They couldn't understand how this could be sustained without people attempting to take property rights in the things that they were creating. How could it be that a coder could write and then say, I either renounce ownership altogether or I use my ownership to require future openness. And lawyers, particularly intellectual property lawyers, generally shared their skepticism. They said, we just don't understand how this works. We don't understand how the community's gonna work. And we particularly don't understand what the business model is. Like how are these people going to get paid? How is this going to be sustained as an ongoing idea? One of them, Richard Epstein, said no commons-based productive system it can survive for more than 10 or 15 years. It's simply not gonna happen unless people claim ownership over what they're producing. Then there's simply no way that this community could sustain itself. I was invited to speak on this issue at the American Association of Law Schools and so I told them that I too, like them, had been studying a fascinating community. Community of people who had been producing code for, in this case, extremely long time. And all of whom produced code in various ways. Some of them wrote it, some of them produced innovations, new types of code, through their actions, through their works for the particular people they were hired to help, who needed particular applications of code, particular iterations. They were generated and they would put it out there into the commons. They never claimed any property rights over it. There was absolutely no claim, this is mine. Instead, they relied on either wage labor, they were paid for what they did, but then gave away the results. Or they relied, in some cases, they did it as volunteers out of an idea that this was something that should be done. But they actually, it wasn't just that they gave it away, they actually claimed that a fundamental component of the system required that the code be open. The name of these people is lawyers. The legal community has been generating code, legal code, for thousands of years. Now, admittedly, they weren't always committed to openness and perhaps, as we'll hear today, particularly from Jennifer Jenkins, they're not perhaps still committed to openness. But by and large, once we got by the scribal languages, once we got by the restriction of law to a language known only by a few, once we got by law French, the idea that the code should be open, that it should be accessible, that it should be transparent, became a fundamental motion in the rule of law itself. This actually was a component of what we meant by law. You could not talk about law without implying openness. And it was also remarkable that in a common law system, the people who generated legal arguments, novel legal arguments, the first person to bring a particular kind of class action, the first person to bring a palimony suit, the first person to realize that this could be a new environmental tort or that sexual harassment could be cobbled together out of intentional infliction of emotional distress claims. This person didn't then say, I now own this. Catherine McKinnon didn't say, you can't make a sexual harassment claim without paying me royalties. The first person to make the palimony suit doesn't say, sorry, that one's patented. Although, sadly recently, some people have been suggesting that this is possible. Instead, they said, this is something which is generated by our efforts, which goes out there, which is part of building the legal system. And this is something which should be open to all. Now I don't want to strain the analogy too much. Obviously, judges and legislatures have different roles than open source software programmers. But I want to suggest to you that the title of the workshop, if law is American's operating system, should it be open source, is more than just a play on words. That there actually is a notion here of exploring the extent to which a requirement of the code itself is openness. That that is actually included within our ideals for it. And secondly, that we should explore and think creatively as the open source software community did, about ways in which one can not only make this open and public, but which then layers of other activities, some of them for profit and some of them not for profit could be built on top of a commons of accessible material. That's exactly what happens with open source software. Red Hat, for example, makes a lot of money out of software which is completely not owned by them. They build a layer of services on it. Lawyers have always done that. But I think there are also ways in which we could think about the future of legal research services in a much more dynamic way than the current relatively duopolistic system which we have in the United States. Okay, enough of the analogy. Let me turn to our general background. If you study intellectual property or if you study First Amendment law, if you study communications law, you tend to think about your little area as being the only area in which information policy is made. We don't generally think about the information policy of the United States of America. And in fact, if we did do so, it would seem to cross all of those boundaries. It would include things like the First Amendment. It would include things like copyright law. It would include things like the Administrative Procedures Act and the requirements of due process. All of these things coming together in order to sort of frame the way that we think about information policy. And it seems grandiose to talk about the information policy of the United States. But I'd like to suggest that the United States actually has had an information policy, not always, not consistently, not in every area. But it is one which is fundamentally important for the framing of the discussion that we're going to have today. And the interesting thing about the United States information policy, and this makes it particularly exciting for those of us who are interested in empirical explorations of the way things actually play out in the world, is that it is not the information policy that every state has taken. And actually, it reflects an approach which is, in some regards, quite unique. So what is that policy? Well, it's made up of many parts, as I said. Let's start with one of the most remarkable. Facts are free. This is a really remarkable tenet and is one that is not absorbed or not put out there by every state. The United States is committed to the notion, largely through its copyright policy, that unoriginal compilations of fact cannot be covered by property rights. Now, this is actually quite striking. What it says is, you can have property rights, but the property rights are not going to be over the layer of fact. And additionally, a second tenet, they're not going to be over the layer of idea. Property rights can exist over things like expression and invention, expression, copyright, invention, patent. But the layers of fact and the layers of idea will remain open as a commons for future people to mine in order to create new expressions and inventions. In other words, right from the beginning, the United States copyright system, and arguably, I would say, its constitution, have built in the notion that we have to have, we believe in, some property rights over expression and inventions, but we believe those are built out of a commons, a commons of facts and a commons of ideas. This is a remarkable notion, and it's one that is not shared. In the EU, for example, unoriginal compilations of fact are covered by database rights. This is not a presumption, and this idea that actually the commons and the property rights work together in order to generate things, rather than its property rights do all the work, is something that I think is one of the most profoundly right things about U.S. policy. I think there's empirical evidence comparing the performance of U.S. database industries to those of the EU that our approach also works better. That is to say, economically, it produces more stuff, more access. And it also has considerable First Amendment benefits. Jochai Bencler has written on this very interestingly, talked about the ways in which the requirements of the First Amendment include requirements that effectively make it impossible for us to enjoin access to facts in cases where fundamental political activities are involved. Facts and ideas are free. The second tenet of U.S. information policy, one that is, I think, equally remarkable, is that federal government information, at least, goes immediately into the public domain. Now, again, this is not a universally held belief around the world. Growing up in Britain, for example, I would always see government publications coming out with crown copyright on them. This was, it's owned by the crown. If you got the Ordnance Survey maps, you would say this is owned by the Ordnance Survey. And when the Ordnance Survey found the Ordnance Survey being the British national map maker, found that competitor map makers were actually had the temerity to make maps of British streets, they claimed that they owned the street names. Now, it's good that we laugh, but what actually the claim like this makes you realize just how different the American approach is. Their idea was, we need to go on making maps. And in order to go on making maps, we need to own the stuff that the maps represent. The Ordnance Survey, I think, doesn't believe in Wittgenstein. They believe that the map is the terrain. So they look out there and they say, we need to own this because otherwise, we will not have the control that is necessary, first of all, to make accurate maps and secondly, to pay for our activities. And that's the position they start from. Our existence as a benign public entity depends on ownership and control. This view, sadly, is one that today is taken by American scientific societies and a realm outside of our domain. They finance their worthy activities by publishing absurdly expensive scientific journals, which they then expect noble librarians to pay for. And because they are doing good things, they think that their particular restriction of access through property rights is noble and good. Rather than thinking what we do is noble and good, the way we pay for it should perhaps be changed. A separation that is, I think, vital here. And that's one that I think is also going to be relevant when the Law.gov program turns to things like PACER. PACER has generated income for the United States judiciary to do good things with technology. That doesn't necessarily mean that the way that income is generated to do good things with technology is through requiring people to pay for access to basic government documents. Facts and ideas are free. Government information goes immediately into the public domain. And here I want to stress just how important the second tenet is. There's a very interesting story analysis, actually, that came out of comparing the US and the EU approach to weather data. The US, as you know, as you may know, makes all weather data generated by the federal government available at the cost of reproduction, which, if you're getting online, effectively means whatever you're paying for your web connection for free. But if you want all of US weather data, you can send them a check for a box of DVDs. And they'll burn it for you. And I mean all of it back to the revolution, all of it. I think it's about 1,200 bucks for the history of United States weather data. It might be up as much as 2,000. You can have it all because we just give it away. And that's a fundamental tenet of our information policy. When researchers wanted to model the monsoon, which, as you know, kills hundreds of thousands of people on bad years around the world, particularly in Pakistan, for example, they thought, well, what we should probably do is get as much weather data as we can and run it through a supercomputer and see if we can mash up these models that see these well-studied areas of weather, particularly over 10s, 20s, hundreds of years, to see if we can find patterns which would help to predict what kinds of predictions produce the monsoon. And as you know, this is, in many ways, people think the future of much of climate science is these ever more complicated and more sophisticated computer models. So they came to the United States, to NOAA, very easy. They sent them to the United $1,200 bucks, 2,000 bucks, and they get all of the United States weather data. Then they go to the EU, and they find that for the weather history of a single German province, they are quoted the cost of 1.6 million euros. As a result, they ran their models using US data alone. That means that the models are less attractive, less accurate, less useful. That's a cost. In this case, it actually may be a cost in human lives, because the model is less attractive. It's certainly a cost to science. You might think, well, if we're doing that, there must be some enormous benefit to locking up the material. And indeed, studies done by independent economists, econometricians of the European and the US approach have revealed that there are benefits. The EU approach is largely to say, this activity must cover its own costs. We are generating weather data. That costs money. We have satellites. We have barometers and so forth. And we need to pay for that. And so the way we'll do this is we'll charge people for access to it. The same with maps, the same with traffic data. So the idea is the government is providing this stuff, and so we're going to make the citizens basically the people who are using it pay for it, and make people pay for things they buy. We do that in the market all the time. You pay for milk, you pay for bread, right? Why shouldn't you pay for weather data? And there is an economic multiplier to weather data. Traffic data are extremely useful. They produce, those of you who follow the debates over the stimulus package, that people will get really excited out of a multiplier. 1.5 or two on the spending of every dollar. Every dollar is spent on digging a new freeway or whatever. It got up to generating $2 back into the economy. We go, woo-hoo, we've really got it. Well, the EU could be justifiably pleased because when you do weather data, you enable an enormous number of efficiency enhancing activities. For example, people can decide whether to have their building crews standing by, or not standing by if it's gonna be rained out, no point hiring those people, right? No point renting that equipment, no point going on vacation when it's just gonna be rained out. Thousands, millions of decisions in the economy made more efficiently because people have better access to information. This is the ideal, the economist's ideal, the sort of the economic garden of Eden where we have perfect information and no transaction costs, presumably no surplus either. The EU gets an eight-fold multiplier out of every euro spent on weather data. And despite the fact that they are charging for it, restricting access for it, not giving people the full feed, not providing this river of data to people, you might say, wow, that is amazing, eight, eight-fold multiplier, that is incredible. The United States gets a 32-fold multiplier. Now, you need to pause and think about this. What is that multiplier? That is for every dollar that we spend on generating this weather data. When they've gone out to study it, when they've looked at all of the range of efficiencies, the costs that were not incurred in building crews standing around waiting, of flights not booked to go somewhere where nothing was going on, of farmers not planting their crops at the wrong time and having them then rot in the ground, that generates a vast amount of savings to the economy, vast amounts of deadweight loss foregone. But it also generates the kind of revenue that we might think of more conventionally. Economists are very happy about that avoidance of deadweight loss, but lots of the rest of us go, yeah, but who's getting paid for this? Is anything actually happening? And of course, the second thing that happens is in the United States you have a second layer of activities built on top of this commons, a commercial and volunteer layer. So if you go to weather.com or AccuWeather or any of these other sites that are commercially available, what they're doing is they're taking all of that weather feed and then they're layering on top their own proprietary algorithms, their own cute little animations, their own, you know, in 17 days, the temperature will be exactly 72 degrees, which is completely fallacious but gives you this wonderful feeling of control of your life. And, you know, if it has a cute little icon, how can you possibly doubt it? And we'll support that through our subscriptions, through our advertising clicks and so forth. And then there are other much more specialized services that you probably don't deal with. So there are people who have really fancy algorithms that predict exactly when to plant soybeans, for example. And again, all of this activity, economic activity is built on this open commons layer, this layer of open material. Facts are free. Government-generated data is free. And free does not mean anathematic to commerce or an economic activity. Au contraire, it actually enables it. So those are two fundamental components but I think there is arguably a third or fourth which come from the combination of our due process ideas and our First Amendment ideas. These are notions that actually to be a citizen in the polity requires a certain level of freedom to get access to information and to transmit information out there. And that certain kinds of governmental restraints on that are therefore impermissible. To give one example, Mel Nimmer said that even if publishing a copyrighted photo of the Mealy massacre without the photographer's permission were not protected by the fair use doctrine, it would be clearly protected by the First Amendment. If somebody said, you can't do that, I'm getting an injunction, you can't publish this photo because I own it, the First Amendment alone would give you the right to do that. Property rights would have to give way. That's a line that we could take up. But more importantly, and this is something that Jennifer Jenkins will be talking about in the second half of our program, that when we come to the notion of access to the law, there is actually a fundamental notion of due process requirement, not merely I would argue of freedom of ownership, but of actual access itself. Not just let's not own this, but you actually have to get access to it. As the early cases in the 19th century said, if in ancient Rome, they actually posted the laws up on the walls of the city so that you would know them. If we are going to say, we presume that you know the law at your apparel, that you are presumed to know what it is, there's actually a concomitant duty coming from the rule of law itself to make citizens, to give citizens effective access to that material. So if we put these areas together, facts are free, ideas are free, government generated information, at least federal government information, goes immediately into the public domain where we can build upon it in multiple ways. And there is both a due process and a first amendment set of norms, which lead us to believe that there's actually an injunction, not merely perhaps to withhold property rights, but actually to give effective access. I think we have the framing which makes the discussion of law itself so important. Because law, of course, fits into all of my three areas. You could think of law as a factor idea. Indeed, in those cases where copyright claims have been made over state building codes, the courts have deployed the merger doctrine, the idea that this is either a fact or an idea, to know what the law is, the only way of getting to what the law is is, what the law is, it's the words of the law, you can't say, oh, that's copyrightable expression, it's the law, right? You can't own that, the merger doctrine says, when there's only one way of expressing an idea or a fact, it can't be copyrightable expression, because to do that would be to give you ownership over facts and ideas, and premise number one, facts or ideas are free. Second theme, government generated information goes immediately into the public domain. What could be more paradigmatically government generated information than the law? The law itself is actually the code thrown off by the operating of the state, right? Our second premise should therefore require access. And finally, do process and first amendment concerns seem to me clearly to mandate not merely an absence of property rights, but effective access. So all three of our norms come together to provide a synthetic reason to give access. However, that's great. I had the easy job. I get to set up the normative high ground, the framing around which the rest of the debate goes on, but now there are the details. The details of actually getting it done, of getting it done in a way that is accurate, in a way that's accessible, in a way that remains there where the archives will actually survive over a long time, that deals with the privacy concerns, that deals with issues of whether or not these opinions are published or not, that deals with the question of how this material could be integrated into the larger scholarly literature on the law, the law review literature, for example. Those are enormous problems, and those are ones which are subsequent speakers through the rest of the day are going to turn to. So like any good academic, I get to speak first, deal with the easy abstract problems and leave the more complicated details to my less lucky colleagues. So thank you very much. We can take questions briefly here and then I'm gonna turn it over to Dick Danner to take us on the next stage of our journey. Maybe a few questions? Jamie, there's going to your second point about the government not only copyright, that's true if the government generates the data, but if the government contracts to generate the information, copyright exists and into my observation, there is an increasing tendency for the government to contract out information generation. Pat in the trademark office, for example, is even looking so far as to say, we can't manage our own IT resources and we're doing a bad job. We're gonna contract with Google or IBM to now basically own the patent database and license it back to everybody else to access. And perhaps this is something Carl's prepared to talk about later, but that's one of the things that we will face is who's generating the information in reality. So this is a wonderful point. Mark Webbing, by the way, former general counsel of Red Hat and now working with a variety of the initiatives to help restore our sadly taxed patent system, including peer-to-pattern and so forth and working with the Free Software Law Foundation. It's a real problem. I've been involved in a number of meetings around this. Carl, I know, has been involved in a lot more. The problem is this. You have a well-meaning government agency faced with dwindling budgets trying to generate information for the public. They have a bunch of people who come in and say, we're really good at this, we're private companies, we can solve your problem, we can lower your costs. And the person who's making the deal says, well, okay, what do I need to do? Okay, all I need to do is ensure, I don't know, whatever I'm thinking is my obligation to the public right now, like effective public access to the following scans. And so I write the contract to say, you, the contractor, have to provide effective public access to the following scans, the following satellite photos, the following weather data, whatever. But you then get to own the underlying material, right? Which you have processed or you have, and you get to own more complex services that are put in. You get to be the gatekeeper. So you get to say whether or not someone can take those satellite scans and make Google match, Google matchmaps or whether or not you could integrate the weather data and the satellite data and the geosciences data in order to produce multi-layered maps or whatever. All of the things that we can't yet imagine because they have not yet happened. And so one of the things which, and this group of people, particularly Harlan Onsrud, I think in the geosciences community, have been arguing, is that we really need to get worked into the DNA, the notion that certainly the government can use private contractor, but when it does so, one of the things that it has to guarantee is access to the underlying layer of the data generated, that we can't sign away the public birth right. Really I do think there's an analogy here to the public trust doctrine from property law, which is we don't just get to turn the canal over to the private ship owner in perpetuity because the public actually has an interest in it. And the thing is that the short-term identification of our interest in access to one particular manifestation of data should not be confused with our long-term interest in access to the data as a whole and the future ways we have not even yet thought about that we will process it. And I know I'm preaching to the choir in that one. Other questions? Well great, I think I'm gonna turn it over to Dick Danner, thank you very much. And thanks to Jennifer for organizing the workshop. Carl for joining us and the others who have come today as well. I also wanna thank Jennifer Barron, one of our superb reference libraries here at Duke Law, who developed the slides that I'm gonna try to entertain you with a bit and also help me with the research for this talk. Jennifer just rushed back here this morning to get to the workshop from a meeting of the Federal Depository Library Program in DC, so I was very happy to see her come in just as we were beginning. When we were putting this together, we thought that such a formidable topic as this one deserved a big, bold, black, and white title. So there it is. However, it also is far too big a topic to cover adequately in the time that we have. So, but I think we decided was that the appropriate thing to do was to concentrate on the keyword in the title, which is, of course, access. And so I'm not gonna say much today about access to scholarly materials, but I'm gonna try to provide some context for the current efforts to improve access to the law. And there are several things that I think that we need to bear in mind. One is that even if access is now the driver for thinking about legal information, as long as accessibility to that information is premised on digital formats, access through time is dependent on preserving that information. And preserving of digital materials poses new questions that didn't have to be faced when we lived and worked in a print environment. The 2005 report of the Legal Information Preservation Alliance that's cited up here identified the risk factors for digital media as being storage media obsolescence, the idea that you need to refresh the data periodically. You need to move it from one storage medium to the next as the media change over time. There's also software obsolescence to be concerned about, and that's the idea that access and viewing applications change in many, such as PDF, are proprietary and are in many ways subject to the whims of the market. There are also cultural and organizational challenges, the need for careful management by the creators and the caretakers of digital materials in archives or things that are referred to as archives to avoid problems such as link rot, the disappearance of materials from the link to which they were initially attached, deletion and other problems, all of which are unknown in the print environment. So when we think about access, it means more than simply accessibility. Legal texts have to be authenticated. This is a problem unknown in the print era before published texts could be easily created and altered and manipulated in electronic formats. It was pretty easy to tell when a print text had been altered. Legal texts have to be preserved, and this isn't simply a matter of making sure that they're printed on low acid paper or maintaining proper temperatures and humidity levels for storing books and microfilm. In accessibility, we have to think about this not only in terms of ease of access, but also, again, the need to make sure that the texts are permanently accessible. It's worth noting, I think, that the American Association of Law Libraries has had preservation of legal information as well as access to legal information for the public as a longstanding concern. As far back as 1981, AAL established a standing committee on legal information services to the public. In 2003, the association issued a state by state report on permanent public access to electronic government information, which was filed in 2007 by another state by state report, this one on authentication of online legal resources, which was updated earlier this year. In 2008, in December, AAL's statement to the Obama transition team outlined the association's positions on free public access to government information, public domain citation, no fee access to PACER, as well as on copyright and privacy concerns. Presently, AAL has state working groups that are engaged in efforts to preserve authentic print publication of official legal materials when states threaten to stop printing materials without creating authenticated electronic versions. To ensure that electronic information, which is unofficial, contains clear disclaimers about that fact. And now, to assist with creation of a national inventory of primary legal materials, something that Erika Wayne will discuss this afternoon, her talk. I wanted to show you some pictures, of course, of law libraries. So here are two famous law librarians, one sitting on a stuffed horse in front of his library and the other one deep in thought about legal research. In fact, that's the picture from the cover of the book, which is called Thinking Deep Thoughts about Legal Research. So clearly that's what's going on. This is Roy Murski, who was for many years the law librarian at the University of Texas. Bob Bering, who was for many years the law librarian at Bold Hall. Roy and Bob are also two of the authors of the primary texts and treatises on legal research. And all of those texts, all of those books, define legal research as the search for authority, which leads us then to ask, what is authority? What sources are authoritative? Now, if you research this a little bit, you can find out what Fred Schauer says. And what Fred says is that, the status of a source as authority is the product of an informal, evolving and scalar process by which some sources become progressively more and more authoritative as they are increasingly used and accepted. Fred's own research has suggested that US courts are citing an increasingly wide range of sources as authority for their decisions. But I think what matters to us here is the more traditional view of what stands as legal authority. These are sources that are issued officially by bodies authorized to create law. Cases, statutes, administrative rulings and regulations, the things usually referred to as the primary sources of the law. Now, access to the primary sources of law has not always been easy for American lawyers. Throughout the 19th century, what they wanted was case law. They wanted reports of judicial opinions that had established precedents for resolving new problems. Immediately after the American Revolution, there was little published American case law to be found. And lawyers and courts relied much more than they wished to on English sources to find out the law. Kirby's reports, which is pictured here, was the first volume of state law reports in the US, came out in 1789, but by 1810, there were really only about 20 published volumes of reported cases in the US. Regular reporting of appellate opinions began really in the early 19th century when courts started requiring written opinions from the bench and states began appointing official reporters. James Kent began the practice of written reports when he came to the bench in New York State. By 1824, there were about 200 published volumes of reports. Wheaton v. Peters in 1834 established that US Supreme Court opinions could not be copyrighted. Banks v. Manchester in 1888 was the last of a series of cases that seemed to put to rest questions about copyright and state court opinions. What these decisions did was to make it possible for commercial and other unofficial publishers to get into the business of publishing court opinions alongside the official reporters for the states. After the Civil War, courts issued increasingly larger numbers of opinions and there were concerns expressed at the ABA meetings about the multiplicity of reports throughout the latter quarter of the 19th century. It was written about in professional literatures as well. American lawyers felt that they were being swamped by the number of opinions that they had to deal with because the official reporters hadn't been able to meet the demand that lawyers had for new case law. In a timely fashion, the commercial publishers created competing versions. For some states in the 1880s, there were two or three versions of Supreme Court opinions available. In the midst of all this, John B. West, who was shown here, began publishing a weekly newsletter in 1876 with the title The Syllabi, which provided summaries of cases for Minnesota lawyers. By the end of the century, West Publishing Company had established, however, a monopoly on publication of state and federal reports for all the states as well as for federal cases and eventually drove most of its competitors out of business. West philosophy was simple. Everything issued by the courts should be published and made available quickly to American lawyers who fear, of course, not finding that one case on all fours which would resolve their issue. From approximately 1875 to 1975, nationwide access to state and federal cases was almost exclusively through West Publications, the reporters and digests and finding tools and other things that they published. By 1975, when the first electronic legal research systems were introduced, an estimated 3 million reported decisions had been issued by U.S. reports, published decisions, with about 44,000 new opinions being added to the total each year. The published law was available in print, but it needed to be housed and organized, made available and preserved. And in the late 19th century, we saw the development of the great American law libraries, first in bar associations and then in university law schools. This is the Harvard Law Library, and I don't know how much that guy actually used those books, but there he is. It's funny because when you do a Google search for Harvard Law Library, this is the picture that comes up. government documents and depository libraries also provided some access for the public, particularly after reforms in the distribution system in 1895 made congressional materials and other federal materials more available, more widely throughout the country than they had been previously. Here's Morris Cohen, another great law library, although I'm not sure that's the best picture of it, described the situation facing users of legal information in the 20th century. The amount of law to be considered on almost any issue continued to grow, and as new information technologies began to be applied to law in the last quarter of the 20th century, lawyers were faced not only with enormous amounts of information, but with what Jason Wilson calls a feast of formats that took us from print to digital via microforms, floppy disks, CD-ROMs, and online websites. Lexis and Westlaw were initially called computer-assisted legal research systems when they were introduced in the mid-1970s, and they appeared around 1975 in approximately the same things that they are today, high-cost, premium, full-text databases, mostly a primary source legal materials. Electronic, digital, but very conservative in their approach because they were designed for direct use and marketed for direct use by attorneys themselves. The Lexis custom terminal, which is up in the upper left of the screen, was, as you can see, was an entire desk which had a keyboard, a monitor, that's a modem sitting underneath the monitor, and this was described at the time by some people as being the morons Cadillac, and we used to have one of these in the library, the one that we first had looked a lot like that, except it had an acoustic coupler modem, if you remember though. This was something where you took a telephone and you stuck it into the modem, dialed the number, and then you connected for us to Lexis's system which was in Washington. In those days, only had Lexis available to us for about two or three hours a day, but we had a local phone line going to DC that ran all day long so that when we weren't, somebody wasn't using the terminal for Lexis searching, our faculty would come down and use the phone as a local phone call to DC. Tom Rowe was famous, it's natural. But eventually Lexis came up with the smaller terminal which you see in color on the right which was called the Ubic for Ubiquitous. I think we like the way that those Matthew Bender books are sort of pouring into the terminal. And that was designed of course to bring legal research right to the desktop. You could have one of these little red dedicated terminals sitting on your desk and no longer had to come and use that big desk sized terminals. Now, because Lexis and Westlaw and other seem to be, and most of it's in Lexis, seem to be like electronic versions of the reporters and other law books. Westlaw of course was based on the books that West published and so it was natural for lawyers to believe that their contents rather were authentic. And of course the information was accessible to those who needed it, lawyers, and those who could pay the price for it, of course, who were also lawyers. There wasn't any thought then about public access. Were they permanent? Was the information in the digital formats access via Lexis and Westlaw permanent in the same way that the books in the library were? No, of course not, but nobody thought about that. No one cared because the books still existed. When Westlaw was first introduced in 1975 or so, it didn't have the text of cases. It merely functioned as an index to the books in the library that West published. Beginning in the 1990s, of course, legal information began to become more available electronically than through those two services. Not only to professional users, but also much more readily to the public. And from sources other than the premium vendors, lower cost sources and free sources. The lower cost sources, which were marketed mainly toward lawyers, had more limited content than Lexis and Westlaw. And some, but not all of the features of those services, they were marketed to the bar examples of this, are case maker, lowest law, fast case versus law. There are others that have come and gone over time. Free access to at least some materials became more accessible through court websites, through government sources for the federal government, GPO access and Thomas, and through Cornell's Legal Information Institute and other sites that were designed specifically to improve public access to the law and to make legal sources freely available. So today, American law is clearly much more accessible electronically and sometimes in print than ever before, but not necessarily easily or reliable accessible. In the rich legal information environment of the early 21st century, some of the same questions apply as in the late 1880s. How can I get this stuff? And certainly there is still way too much of this stuff to have to deal with. But there are new questions and the new questions are, where did this stuff come from? Is it authentic? And where did it go? Who was supposed to be saving it? The difference between this time in the era of the great libraries is that we can no longer assume that libraries will provide access to authenticated legal information or to preserve it in the ways they did in the past when the law was published in books that libraries collected, kept, and preserved. But does anybody care? As authoritative legal information is published only in digital formats, there aren't going to be any print sources to turn to to verify authenticity. And we can't assume the authenticity even of official sources published electronically unless some mark of authentication is provided. And the trust, well-placed or not, that American lawyers once gave to Lexis and Westlaw's databases doesn't necessarily obtain when cases, statutes, and other authorities are widely available on the web more cheaply or for free from a variety of sources. Where did Google Scholar get those cases anyway? Do we know? And as Jason Wilson colorfully put it in his blog last year, authenticity is not the first concern for lawyers who are trying to find free or low-cost access to the materials that they need. As a result, it's also unlikely to be the first concern of citizen researchers who are merely trying to find the law and then make some sense of it once they do. But this is an era, this slide now is going to be wasted, you'll see why. This is an era in which the National Archivist blogs about Martians while issuing his agency's first open government plan which is a plan to vastly improve the public's use of government records not only by making them available on the web but also by developing a social catalog which will allow users to employ social media, web 2.0 technologies to contribute their own thoughts to descriptions of the documents. The last thing I put here on my notes is what a guy but where is he? I guess the question, David's going to be with us, I believe, is that? It's not going to be, he's at the rally public. So here we are again. Same basic issues for legal text that I mentioned at the beginning. This is an era also in which public demand for access to the law has never been greater. And as Peter Menel, the director of the Bold Hall Center for Law and Technology recently wrote, modern digital technology provides unprecedented opportunities to promote preservation and access to knowledge. The challenge for all of us is going to be to ensure that efforts to improve access to the law for the public and for legal professionals will take into consideration the needs for authentication and preservation as well as access. And it is for this that I think we all look forward with excitement to the possibilities of the law.gov project. Thank you. Time schedule, brief set of questions and then we can move on. I have one dig. Where in what you said is the place of the secondary materials? Because obviously that's something where you've been extremely active. The role of law reviews, commentaries and so forth. How do you see those two things working together? Well, at least in the US there are increasingly large amounts of secondary materials being made available on the web and repositories held in law schools and in other places. The key thing in the area I think that is going to be a matter of particular importance for law librarians to be working in is how we link those things together. As you know, Michael Carroll said that access to the law is essential but if that's true then access to commentary and scholarship about the law is equally essential so that you can have the two things work together and one who finds the law has some way of understanding what it's really about and how it's been interpreted. I think that what we're going to need to do is I think take the direction that David Ferriero is suggesting for the National Archives and find ways to use social computing technologies to bring those things together. I think that there's a role there for law schools to find ways to link primary source and secondary source materials so that all of this material becomes more valuable. Great, thank you so much. David, should we be talking here, Wayne, or are we picking up enough sound or not? Yeah, this is very fine. Yes, okay. Well, thank you. Those were wonderful talks and I'm jealous of the ability of both Dick and Jamie to conceptualize and to see these issues as they developed. Over the past almost 20 years, I've been more like the fellow with a dustpan and a broom that follows the elephant around in the circus and mainly simply reacting to the technology as it changed and as we had to cope with it as federal judges. So I was chief judge of the Eastern District of California which had the highest weighted caseload per judge in the nation at the time when we made the transition from paper filing to electronic case filing. We'll hear that called ECF or CMECF. I was chair of the Civil Rules Committee when we drafted the rules for electronic discovery, e-discovery. And then I was chair of the Standing Committee of Rules and Practice and Procedure which is the umbrella committee for all of the rules committee committees when the E-Government Act went into effect and required that each one of the rules committees, the bankruptcy rules committee, the criminal civil appellate and evidence committees issue new rules under the E-Government Act to deal with the problems of well, to preserve privacy essentially if court records are to be made public. I thought it would bear beginning here just simply to say how far and how quickly we've come in particularly in the federal court system which is what I know best. I won't represent that what I say here this morning is true of all the state court systems because they're extremely varied in there and it would be difficult to generalize. But it is true now that in all federal courts, that all opinions, all local rules, all standing orders, all orders of judicial officers are free and in a very short period of time have been put up on court websites and are freely available to anybody anywhere in the world. And very few cases are sealed and so this means that there's a wealth of information up on the web. Every any action by any federal officer, any federal judicial officer that is memorialized in writing is freely available and generally speaking relatively easily available. If you go to a court website, you'll notice right away that most of them are pretty unsophisticated. They're not nice to look at. Courthouses are not well staffed in the Eastern District of California and I'm sure it's true around the country. We don't have web designers. You don't generally get nice music when you go to a court website and you often don't find your way around all that easily but the judges are very aware of the fact that they have an obligation under the E-Government Act to make their opinions available. And all of this happened very, very quickly and interestingly it was the courts that had the most volume that were the quickest and the first to go digital. So it was the bankruptcy courts that led the way and then the district courts and then followed by the fusty rule bound and frankly not altogether that busy appellate courts which are the ones that are now the last to go and to some extent kicking and screaming and why would that be? Because it's so much more manageable when you think about what an appellate court does. So I don't say that the websites couldn't benefit from improvement but I will say that in a very short period of time we've come an extraordinarily far way. Now the PACER system applies to the actual filings in a docketed case and so we're not talking any longer about court actions, opinions that a judge would write those are all free, you don't need to worry about the PACER system, you just go to the website of the court and you can find those opinions. But if you want to get into the actual filings so somebody files a brief or file makes a motion or submits a certain packet of discovery that the party may want the judge to look at or simply wants to put into the record. There is a charge for that. The first $40 a year are free and this is a I think relatively new thing and one can expect that that sum of money will go up each year that is to say it'll be the first $100, the first $200 something of that sort. But Congress has required that the courts charge a fee and it's been done per page so it's eight cents per page after that $40 free dollars. And but with that anybody can go into a docketed case and look at anything unless it's been sealed and I can just tell you that they're very few sealed records. This is a ceiling is a topic all into itself we can talk about it at length if you like there are members of Congress and members of the Senate who are very focused on sealing but all the studies show there's very little sealing that goes on. Settlements are not sealed in the federal system they're simply not filed and I wanna come back to that point later. So all records are in fact public you do have to pay for them if beyond the $40 and the vast majority of the users of the system don't need to go beyond $40 credit card companies, people who are interested in mining this data some public interest groups are gonna go beyond that but most individuals will not. Now this is not to say that there's been any change in what happens at the courthouse. So just as in the old days you could go down to the clerk's office you could drive to Raleigh and say I'd like to see the court file in case number 89-405 and they would bring you out the file and you could just sit there and look at it you can still do that. It won't be in paper but they'll put you at a computer terminal and you can look at anything and it's free but you have to get there and that we all recognize that that's inconvenient but there's been no change all of these records are in fact public and so if you wish to drive around every courthouse in the country you could take a look at every file that they have. Now the fee is not something that the courts are particularly wedded to although the way Congress has set it up there is a benefit to the courts from the fee that is the fee pays for the pacer system and as Carl may mention to you the courts have used some of that money which exceeds what's needed to run the actual pacer system to fund some courthouse technology. It's not courthouse technology like the courthouses have great technology and we have wonderful acoustical sound systems or anything like that. You're talking about pretty basic stuff you're talking about actually having a courtroom where a witness can testify remotely for example you know you have somebody up in Alaska and here you are in New York and everybody agrees that there's no point in having the witness travel but you wanna have the person appear on a screen so the jury can see it costs a certain amount of money and Congress has not been generous with technology funds so these are collected from the pacer fee. You could do it differently. Carl could go to Congress and say look why don't you provide the courts with a technology budget and then we wouldn't have to charge a pacer fee and I think actually most judges would be fine with that would have absolutely supported. Is it unfair to charge a fee? That is to say you know should we just consider that everything that is put into a courthouse as a depository that everybody should freely have access to that is that as a matter of social policy do we think that that's unfair? Well there are a few things to think about here. It's not that different than what we had before. We had this wonderful digital access so before if you were well-to-do or well-funded or you were just bizarre and you wanted to go around every courthouse and see what was cooking at each place you could do that and it would cost money, it would take time, it would be difficult but you could do it or you could hire people to do it. If you were the New York Times and you wanted to keep tabs on what was going on and the Los Angeles Federal Court and New York Southern District and Eastern District and you wanted to have somebody there when cases were filed, you could do that. You could pay for it and people did. And other people didn't have the funds or the time or the interest or the means to do this and they would do it on a more selective basis. Well that's still the case. What about the civil justice system? Is this a public good? Well in some ways it is. We tend to pay for most things in the federal system although this is not universally the case. We don't provide lawyers free of charge to civil litigants who can't afford them and many of the litigants in federal court have no lawyers and that's an issue that I'll come back to. How strong is the public private distinction in these kinds of records that I'm now talking about? Remember, everything the judge does that's reduced to writing will be freely available. That's an opinion, it must be made available. But the litigants, these are not government actors and so if I'm a litigant and I decide I want to file a copy of Jamie Boyle's book, I can do that. And then of course Jamie wouldn't care if it were freely available to anybody on the PACER system and he would see that he'd probably actually make money off of that eventually. But other people might care or perhaps I have photographs of somebody in a compromised position and I just think that it would be neat to file them in this case and I do and they become available to anybody around the world. Is that government activity? Is it, well, you could argue it, I suppose. The argument for considering it to be a government document is that there may be judicial action eventually predicated on that document. And so in that sense it's like the judge's opinion because it relates to the judge's opinion. On the other hand, it's not something that the judge ordered to be done, wanted to be done, participated in the filing or anything of that sort. So is it a public record? Is it a private record? Do we have the same feelings about the strength of access? Should the public pay for somebody to have free access to a document of that sort? Right, I think there's some questions about that and then keep in mind that what we're running basically in the civil justice system in this country is a settlement system. And so most of the cases, 95%, something like that of the civil cases that are filed in a courthouse are going to be settled and of that, they won't go to trial and they may not even go to any kind of motion. They'll be filed and after a period of about six months they'll simply be over, they'll be settled. There won't be any judicial action. All the government will have done is simply to have been a receptor of filings. Now, does a public right of access get triggered? Do we think that the public should actually spend money to make these filings freely available? Does this implicate some of the values that Jamie was talking about? It seems to me it's more attenuated. And then you have to consider that there are other needs in the system. Is this a priority or would we think that, well maybe providing lawyers in some cases and we should put our dollars there. Depends on how we wanna spend our money. There are analogs to what I'm talking about under the old system. We changed rule five when I was chair of the Civil Rules Committee which talks about whether discovery should be filed in the courthouse. And I wasn't alert to the issue, frankly, until we published the rule for comment. And what was happening is that discovery was being filed in massive cases and courthouses simply didn't have the space for truckloads of documents. And so by local rule most of the courts were saying you don't file discovery until the judge tells you to file them. It tells you to file it. But when we publish the rule many of the newspapers objected because once the discovery is within the four walls of the building then the public right of access is triggered and so this becomes a source of information. But again, are the government records in any sense that is meaningful or is this just simply private information or private documents being put into a government warehouse? And the rule was changed because courthouses simply couldn't handle it. And I think that to the extent that digital filing places burdens on the courts you'll see the same tension. You'll see courts saying don't file that. Don't file that until I tell you to file it because it simply creates problems for the courts once it's within the four walls of our computer system. So those are some things to think about. Now I think we're over the period where judges were resistant to the notion that everything that they do should be available on the web free of charge through our court system. I will say you probably see some battles in the states over this. There's a kind of a culture that you should be aware of that pushes back a bit on this. And it has to do with some of the history that Dick was talking about in the sense that there's too much out there already. So there was a huge battle in the federal courts that I was involved in and then Judge Alito as well with me on the unpublished, so-called unpublished opinions and whether they could be cited or not. And many of the strands that Dick was talking about were implicated there, where judges would say I like to issue opinions that are so-called unpublished opinions even though they are now published, even though they are now freely available. But they're second class citizens. I don't wanna hear about them in the future. And this was a device that appellate courts were using sometimes probably to secure agreements on opinions that where one judge would say, well, I'll go along with it if it's unpublished, non-precedential, can't be cited back to us. Or perhaps they just weren't too content with the lawyering in the case. Gee, you know, this is an important issue but the briefs we're getting, they're lousy and we don't wanna write an opinion that is gonna bind the court in the future on the basis of this kind of record. Or maybe they just felt under the gun for time or they didn't think the issue was terribly important. They didn't wanna, just a process of triage in the courts, we just not gonna spend that much time worrying about how our language might apply in future cases. This is not the case to worry about it. So don't cite it back to us. And then for district judges where nothing that a district judge like I was, nothing as precedential doesn't even bind you in future opinions, although it might be bad form to say, well, you can only say a few times. Gee, you know, as Frankfurter once said, you know, that was me when I was stupid and now I'm smart and it's a sign of wisdom that you've learned something. Well, you don't wanna be that judge too often who just says, well, that was last year, this year I'm so much smarter. Of course, the reverse might be true. But district judges like to be able to say, gee, I think I did a really good job on this opinion and it'll be really helpful and I'm sending it for publication. And so there was a transition period there where district judge opinions were all of a sudden they were appearing in Westlaw and Lexison and other places and they would say, I didn't give permission for this to be published. I don't understand this. And what they were worried about was that other judges primarily would think that the judge, the author, had actually sent it to Westlaw and therefore had vouched for it in some way, whereas they hadn't taken that step. So there was this kind of, academics like to talk about signaling all the time. And so there was this kind of signaling function that would occur when the judge actually sent it and the judge was now concerned that the signals were getting all confused because they weren't actually the ones who sent it. And you could imagine a system where a judge would write an opinion and say, and I really mean it and I don't really mean this, but we probably wouldn't be all that happy with that system but that's kind of what we had. And it was working, the lawyers in the room know about legal fictions and there was some kind of legal fiction going on here but we're through that. And so now what we have is all the opinions are out there, any opinion can be cited and it's up to the courts of appeal, whether to give them presidential weight or not. There was a lot of talk about how this, because of this information overload, there's way too much stuff out there, it would make litigation far too expensive and of course none of that happened. So what are judges worried about if the files of the courthouse are open, totally open to the public, they no longer have practical obscurity but they would be open and searchable. Let's imagine a universe in which there was no pace or fee and in which you could just simply go to the federal court database and you could search very broadly. You could find out if anybody had ever filed for bankruptcy, you could find out whether anybody had ever pled guilty, you could find out whether their home had been searched, you could start trying to find out private information perhaps about their bank accounts where they were or their social security numbers. So what are judges worried about? Well, one thing the Congress was worried about and the courts are worried about is privacy and that's what I'm getting at. So social security numbers, Lee agreements, the names of minors, proprietary information, a lot of information obviously has value to competitors, business competitors. Amnesty claims for example in an immigration case, there's just a whole host of areas in which the information is extremely sensitive and it's not exaggerated to say that people will die as a result of going public, people have died. There are prisoners who've been killed as snitches, partly because they were snitches and somebody found out on the database and partly because they misunderstood what they were seeing in the database and they assumed that if a plea agreement were sealed then that meant the person was a snitch and that's not necessarily the case, that some courts routinely seal plea agreements and that word didn't get out apparently to all of our prisoners and people have died. The immigration cases are particularly tough, there's a huge amount of personal information in the immigration files and to redact these files is extremely time consuming and errors are very likely and occur all the time as Carl can probably talk about. If you were to audit the files in a courthouse you would find many, many mistakes and the mistakes are not made by the court, the mistakes are made by the person who filed. In other words, the judge is responsible for what the judge writes and if you were writing an opinion and you had to disclose somebody's social security number you should follow the redaction procedures and the rules which means that I think you only give the last four numerals of the social security number but most of the filings obviously are by private parties and many of the filings are by unrepresented parties and they don't necessarily follow the rules and if they don't follow the rules on redaction for privacy then you have a lot of private information that's getting into the records of the courthouse and that's a problem and it will always be a problem. Now, you could start spending money to deal with this. Each courthouse could be given an appropriation and you could have people whose job it is to go through the records every day and using algorithms and other search techniques try to sanitize the records and be sure that they're in compliance. Judges can issue orders, can sanction lawyers but you still have to deal with the fact that you have a lot of pros and litigants that is people without lawyers, poor people who are not sanctionable as a practical matter who are filing things all the time. That's a huge portion of the courthouse clientele and getting bigger every day and lawyers themselves don't know how to do this and delegate it out to other people in their office and it's very expensive and there will be mistakes. So, judges are worried about privacy. Judges are worried about distortion. There's a gray mail phenomenon. All litigation, the transaction costs in litigation are so high that in trying to reduce those transaction costs is one of the goals of modern law reform. We want cases to be decided not so much on the efficiency of the litigation but on the justice of the underlying claim and with reference to the law that applies. That's the goal, that's the way most judges would view it. So, when someone settles a case because they simply can't afford the litigation or think it's not worth the candle, I think most judges would say gee, I mean that's reality, we all do that but it's kind of too bad and if you could find a way to reduce that cost that would be a good thing. This is neutral I think as to plaintiffs and as to defendants although it's often the complaint of defendants and the reason for that is that it's often the case that the plaintiff has actually very little in the way of discovery to turn over and it's the defendants records that are really the issue and so it's the defendant who will bear the costs. Well, if you have, if it's a weapon to actually load into the court system to make available to the world information which is embarrassing or potentially proprietary or somehow harmful to the defendant then this becomes another lever in the litigation unrelated to the ultimate justice of the claims and I think most judges would be concerned about that because it distorts outcomes. And then finally the cost and I've spoken about that. I don't think we should underestimate that and let me just put the tension as strongly as I can. We're trying to build a litigation system after all which is open to as many people as possible as low a cost as possible and every time you say to somebody well you have to pay in addition to simply filing the case and paying the filing fee and learning how to file in the courthouse and learning the law you also have to pay now somebody to go through all your records and make sure they're redacted for privacy because they're gonna be available to the entire world and that could add potentially thousands of dollars to the cost of the litigation. That's a true cost and we have to take it into consideration. That doesn't mean we don't necessarily wanna bear the cost but it is a cost and I think it should be of concern. I think there's an amazing amount of agreement in this area and so I'll be interested to hear what Carl has to say. I felt that everything that I did as a judge should be freely available and that in effect it was you go out into the courtroom and announce your opinion you don't think that you've done this in private and most judges would say that there should be no taint of anything smacking of secret law but it's when we get into these other kinds of documents that are not court documents but that are simply somebody made a decision to put them into the repository almost as if I walked into the I almost said Stanford Law Library but where I spent many hours myself or in the Duke Law Library and just said here I have a box of books or records that I'd like you to hold for me and it turns out it's defamatory or scurrilous or it's information that could be very, very hurtful to somebody else and that's the situation that we're in and you can see it from both sides as is unfortunately so often the case. So thank you very much. I have one which is as a person who was on the front lines as you eloquently described you saw some fears that people had about the initial sort of opening up turn out to be overstated and others to be real and certainly it seems that when you go beyond the primary legal materials that are the main focus of law.gov you pointed out some real sort of major concerns cause privacy and so forth. Beyond that, speaking of some of the other things you talked about particularly the sort of unpublished opinions and other issues based on your prior experience of the things that were thought to be problems and turned out actually it wasn't such a big deal and the things that actually did turn out to be continuing problems. Do you have intuitions? Like if you were to separate the concerns you've talked about into two parts about the ones that you know this is a real concern and it's not gonna go away and it is gonna turn out to be a big deal and others where we're worried about this but I actually think in five years we'll turn around and say you know that was we overestimated the problem. I don't think the privacy concerns will go away and I think and that's too bad and these privacy concerns are they go be standing before you I don't know all the air I'm always learning about when I go to the committee meetings I'm learning about new concerns that I didn't know about for example I don't know much about immigration A files or I mean I've seen them but you know there's a lot of stuff in there there are things in there where people say gee if you return me to Costa Rica you know this person will kill me and now if or I make you know I'm worried about this group and this is why I'm worried about them or maybe I'll even put in information that if they were to find out and so I do I think that I think our experience with if I could put it this way if every case were to become a high profile case you know if every case becomes a Kobe Bryant case or has the potential to be to become a case where the eyes of the world are on the case that is very distorting it changes how people behave and it looms over the litigation and it can distort the outcome so I would say that is a true concern really quite a true concern I think most things that have to do with you know judicial control over the litigation let us say those tend to be overstated there was a lot of consternation simply in you will this will resonate with you having been on a law faculty you get a lot of crazy talk about how this will hurt or help different kinds of people depending on how technologically savvy they are so when we went to CMECF you would think that gee this is great for solo practitioners because they don't have to drive down to the courthouse anymore and in a district like mine in eastern California you might be five hours from the courthouse we thought we were making the system so much more accessible particularly to small firms and to people without the resources but they didn't see it that way they saw this as this is going to benefit the big national firms because they'll understand how to do this and little old me you know I'm still working with a quill and just sort of like we have some professors who still use yellow pad and that sort of thing like I brought a yellow pad but you know have their email printed out by somebody and then read back to them and you know you sort of you go through these little sort of I call them kerfuffles you know it's a slight disturbance of the force but it's only slight so I think the technological problems turn out to be overstated the question of control turns out to be overstated I don't think these privacy concerns are overstated not at all and I do fear the distorting effect I think we see that a lot in litigation it depends on the litigation and I think that the people that are going to mine this data are not by and large going to be people like Carl and public interest groups they are going to be commercial groups I don't know if you agree with that or not but I think we are already seeing this you know it's the credit card companies they really want to get into those bankruptcy files they want to create you know better databases on people who have filed in the bankruptcy system their commercial uses and that's where a lot of this pressure is coming from I want to follow up on that a little bit not for lawyers but for the public because what you said at the very beginning about the information is out there but it's not really very accessible and some of this research that I've looked at would say that that is a conscious barrier to public access to some of these records and I'm wondering if there's any discussion about improving and you touched on the websites and the search mechanisms and the ways so that not just lawyers who feel uncomfortable with it but the public can have better access to it is there any conversation about that at all? There is and this is so much better now I have to tell you when I started as a judge in the 1990s you could go into a courthouse and you wouldn't the judges couldn't even tell you what where to find a copy of the local rules or where the standing orders were for the court and it was like you know you were just kind of waiting for the anvil to fall on your head it was like oh my goodness you know you now found out that you violated some rule that it wasn't easy to find out about there was just maybe somebody in the clerk's office who knew about it and all of that is now available it's just the websites need to be upgraded I think that's true and there's talk about there's going to be another iteration of electronic case filing and when that happens in the next few years apparently all the websites are going to be upgraded and they'll be the opinions will be searchable and you'll see I think a huge increase in functionality and accessibility but I don't know that there's any plan if this is what you're asking is to aggregate all of the opinions so that you wouldn't have to know which district the opinion was in for example or which judge that I don't know if there are plans for that although I imagine that that could easily be done now maybe you've already done it I believe the law librarian of Congress is investigating the possibility of aggregating material and I think that's one reason the law library is participating in the law.gov process and I think that would be wonderful I think that'd be great I see no problem aggregating all the opinions of district judges and bankruptcy judges magistrate judges and appellate judges I think a lot of lawyers will feel like oh my goodness there's a lot of stuff to look at and there is something of a downside to that it can increase the cost of litigation but I think the benefits are clear. Yes. You mentioned reporters getting access to courthouses the news and observer has gone from 260 reporters to 100 people in the newsroom in the last four years when I asked the editor things that he wasn't able to cover anymore the Durham court reporter for the news and observer that was one of the beats that was eliminated so a question like how do judges in that courthouse treat gun crimes? That's very hard right now for interest groups in Durham to examine would you be in favor of getting as much information as possible so that in a low cost way you could actually hold judges accountable? Yeah, I don't know that the data would necessarily permit you to do that but if you're asking again it requires aggregation and if that can be done you have to decide how important it is and who's going to pay for it the courts, no judge can do that can't sit there and say well I've got this job of deciding cases but in the night I will be a data aggregator and Congress decides and appropriates and if they appropriate monies for the administrative office of U.S. courts to aggregate that data then I would think that would be fine the sentencing commission does some of this already on the federal level and there's an argument on the other side for not doing it that you'll hear from judges so that if you were to if you said I want to see how Judge Levy sentenced in gun cases over the past 10 years and publish that some judges would say on the whole that's going to be distorting you know that'll be you'll end up with distorted information because my cases are assigned to me randomly I don't know how long a time you'd have to be on the court to know whether you're getting a true random selection or whether they've been skewed in one way or another and that you don't want to put pressure on judges in particular cases to if they say gee you know the public's keeping a scorecard on me in so for a state court judge in gun cases and they want to see that I'm a stern sentencer in some parts of the country or a lenient sensor in other parts of the country that distorts the process that's one of these areas where if you have an elected judiciary you're starting to put pressure on your judicial officers in that way and you might not want to do that I mean it may happen anyway maybe it's just the way of the world and we shouldn't have elected judicial officers and I'm in favor of that as well so I would say if you're not going to have an elected judiciary then like the federal system and if you have the federal system the more data that's out there I think you know the judges can take it they can they're not going to be impeached because somebody thinks they were too lenient or not lenient enough at least I hope not thank you yeah thank you wow those were good presentations Dean Levy thank you very much Dean Danner that was very very useful I want to thank Professor Boyle and Professor Jenkins for putting together this workshop it's one of a dozen around the country that we're doing Law.gov is about primary legal materials and there is no concrete definition of what that means it's it's a cloud there's a core and there's some edges if you look at the laws of the United States Congress for example those are clearly primary legal materials but if you're a lawyer and you go to court and you're arguing about what a law really means you need access to congressional hearings and those are clearly of importance in the practice of law and importance for a wide variety of professions and so the laws are primary legal materials but if you go to the state of Oklahoma and want to make a copy of the Oklahoma statutes that will cost you twenty five thousand dollars for a license to put it up on your website which is fairly pricey eight states actually assert copyright in one form or another over their state statutes and we're going to hear about a little more about that this afternoon in the national inventory primary legal materials are all three branches of governments the patent database is arguably the only database explicitly called out by the founding fathers in our constitution but it costs thirty nine thousand dollars a year to buy a current feed of patents to make them available on your site and our current undersecretary of patents the commissioner capos does not believe he should be competing with the private sector and has an RFP on the streets that would name an official vendor to be the distributor of U.S. patents and one has to argue whether that meets the language of the constitution for the judiciary Supreme Court opinions are clearly primary legal materials but one would have to agree I think that briefs in Supreme Court opinion should be available and they are not today there are a few available from the American Bar Association for current ones but the historical analysis if I were teaching in a law school and I want to make clear I am not a lawyer but if I were teaching Marbury versus Madison in a law school I think I would require the students to read the briefs that were submitted and those are not available today now not everything needs to be public and I think Dean Levy made a very good point on on some of the issues there's issues of privacy there's issues of security there are documents that are sealed there are documents that are improperly unsealed and distributed and need to be resealed and so what is public may change over time in reaction to things bankruptcy documents I'm not sure I had an opportunity to put a large number of bankruptcy documents out of Pacer online and I said I didn't want to be the sole provider on the internet of bankruptcy cases because I knew my phone would be ringing off the hook from outraged people I actually get phone calls because we have court of appeals documents online from people that were the plaintiffs that went to the court of appeals of the United States but don't feel their cases should be available and in some cases those objections are valid very valid and in some cases I had one gentleman who was the controller at a publicly traded company that was sued for securities fraud and is currently the controller at a publicly traded company and he doesn't want that case on the internet because people might get the wrong idea about him well that seems to be public information but if information is primary and we're trying to understand what that means and if it is public I think a fundamental precept of this law.gov effort is that it should be available to all and I understand that the data mining companies for example may be the prime users of the Pacer database on the other hand public interest groups should be able to compete with those data mining companies when we were able to access 20 million pages of Pacer documents something that the large well-heeled credit companies have had for a long time we found thousands of privacy violations things that had festered in the database and nobody had an incentive to fix them the court clerks did not have the time nor the responsibility for redacting information the lawyers didn't care because nobody was calling them on the carpet and for Lexis and West and the credit card companies social security numbers were a feature and not a bug because they used it for their products and it's only when public interest groups got access to the material that we were able to send the judicial rules committee a detailed audit it went to 30 district courts and as a result they were able to change their policies and so law.gov is based on a question can we make primary legal materials in the United States all three branches all levels of government available in bulk from the source in an authenticated manner and in today's day and age one can in fact digitally sign documents now that's not necessarily easy to do for a variety of reasons for the archive for example authenticating and digitally signing prior documents that were on paper and are now scanned in is a difficult thing to do and it's also difficult operationally doing this going forward for reasons such as privacy and improperly sealed and unsealed documents so the basic principle is pretty simple now I think there's three reasons that one needs to make these materials available and those reasons are justice democracy and innovation which are big words but I think they're real words, justice there is a feeling out there that any practicing professional anybody who's serious about the law has access to the materials they need to do their job I don't believe that's true I know many solo practitioners who do not have access to the services they need they simply can't afford them and solo practitioners and small startup firms the general counsel of Twitter was unable to justify access to the West database because it would have been by far the single largest line item on his budget and he couldn't go to his boss and justify it and this is by far the hottest startup on the internet right now a wash in money now maybe he was cheap and should have spent the money but I know a solo practitioner in Northern Indiana a good friend of mine who as a hobby does pro bono work on water rights he represents farmers whose streams get polluted by upstream manufacturers and he cannot afford the services he needs these specialized databases because the surcharges are too high public interest lawyers, legal defenders many of them don't have access to the full deluxe legal packages and that means people defending the poor don't have access to the same materials as people defending the rich and that doesn't seem right and there's one other category my friend Tom Bruce runs the Cornell Legal Information Institute which many of you may use and they've been a pioneer from the beginning in putting legal information online he says one of the most common calls he gets from somebody is people saying I'm just a government lawyer in the Department of Interior and we don't have access to this specialized section of the United States Code thank you so much for putting it online for us I get similar calls from other folks Department of Justice lawyers get memos from their bosses saying we are over budget please stop doing so much research democracy is another reason we say we're a nation of laws not a nation of men well that means we write down the law and if we don't write down the law and make it available then that doesn't make sense now ten or twenty years ago it made sense that you had to go to a library to access this kind of information but in today's day and age it is much more than lawyers that need access to the law I had an argument with the Commissioner of Patents about whether the patent database should be available and his argument was that it was the patent bar that needed patents because they were the only ones that read it every engineer in Silicon Valley needs to be able to read a patent because that's a fundamental part of their job it's also a fundamental part of the patent database which is there to promote the useful arts and if you don't make the patents available what's the point in granting them but I think the biggest reason is innovation today if you want to be in the legal business if you want to compete with West because you can do a better job on head notes or you can do a better shepardizer it will cost you anywhere from ten to fifty million dollars to purchase a collection of legal material sufficient to be able to provide a new service companies such as Fast Case spend tens of thousands of dollars per month simply triple keying materials sending them to India having them typed and getting the digital version back and what that means is that innovation has not come to the legal market it's the last bastion of clothes on the internet if you look at science, if you look at finance if you look at health there has been a huge amount of information and a huge amount of startups that have gone in and have changed the way those professions practice sometimes for the better and sometimes for the worse but that innovation has been unavailable to the legal market it's also unavailable to non-profits and it's unavailable to the academy and that's something that I think is really important if you go to places like University of Michigan Law School they have professors there and PhD students that have law degrees but also very strong technical backgrounds that given the opportunity to analyze the corpus are able to find information like is there discrimination in civil rights cases in district courts, does that vary across the country is the idea of what a judge thinks is an important decision is that different from what everybody else thinks is an important decision and legal researchers are beginning to analyze the citation chain and build what are called big directed graphs to provide empirical evidence of which cases truly turned out to be important as opposed to the ones that the judge has named so how do you change something so fundamental as a $10 billion a year industry which is what access to primary legal materials is in the United States the way we are doing this is a national conversation a series of workshops and working groups is phase one of this process we began at Stanford Law School Erica Wayne and Paul Lomio set up our first law doc of workshop in January we did a two-day technical workshop at Cornell that Tom Bruce hosted that had all the leading technical figures in the kind of free law world as well as participants from Lexus Nexus and Fast Case and the government printing office and so there's been a strong participation from industry and government at Columbia Law School for example Tim Wu was the co-convener of the workshop there we had the Deputy Chief Technology Officer of the United States who does open government, Beth Novak sitting next to the Chief Technology Officer of Lexus Nexus discussing how primary legal materials could become more broadly available we had a workshop in Colorado just recently in which a Supreme Court Justice, the Chair of the Judiciary Committee and the Secretary of State all discussed what the situation was in Colorado we had two former past presidents of the American Association of Law Libraries there discussing things like the Uniform Commission and efforts to standardize laws across the different states we have a few more of these workshops coming up we're going to finish this process in June Texas is going to be on Tuesday with Terry Martin is the interim librarian down there also a past president of the AALL we'll be discussing the situation in Texas but we'll also be looking again at research applications of the corpus if the data were more broadly available what could one do we're going to be in Berkeley in a couple of weeks Professor Pam Samuelson is going to lead a session on intellectual property and the law our copyright constraints on legal materials valid or not we will also have Tim O'Reilly and our Secretary of State Debra Bowen discussing government as a platform and finally a long in-depth session on privacy with Peter Wynn from the Department of Justice and Chris Hoofnagle from Berkeley and we're going to end this process up with two pretty big workshops my former boss, John Podesta, I was the Chief Technology Officer at the Center for American Progress is hosting one on June 15th we have a really stellar cast of people coming in for that one, the CEO of Lexis Nexus is going to be there the General Counsel of the Office of Management and Budget the Law Librarian of Congress and then finally we're going to Harvard because of course all roads lead to Cambridge on June 18th we'll be doing our final workshop hosted by John Palfrey who is the Associate Dean and Head of the Law Library along with the workshops we have a series of working groups people working together online as well as at these meetings the primary one is the National Inventory of Legal Materials which is co-sponsored or has the strong participation of the American Association of Law Libraries Erica Wayne will be speaking about that this afternoon and she's been heading up that effort we are also doing outreach attempting to go talk to judges we will be in the United States Congress in a few weeks where Congresswoman Lofgren who is Vice Chair of the Committee on House Administration is co-hosting a meeting with Congressman Lungren who is the ranking member on the Committee on House Administration Roberta Schaefer will be there but Eugene Meyer the head of the Federalist Society will be there and I think the point of that event it's a one-hour event is to show that this issue is very much a nonpartisan bipartisan across the aisle type of issue this is not a bunch of lefties or a bunch of righties with a particular agenda this goes beyond the partisan politics that we often see in Washington so phase one is the workshops phase two we are attempting to distill what we're hearing and say is there consensus on some things are there areas that are tough and there is no consensus and we will be issuing a report and a series of basic principles for example copyright assertions on primary legal materials I think most people are at least the ones we're hearing are agreeing that that's probably not tenable neither legally nor morally and finally we're going to go brief people and say look a national process has been underway these are some of the conclusions the United States Senate Senator Lieberman who heads the e-government effort has already asked for a copy of the report to be deposited to his committee Chief Judge Kaczynski has granted me five minutes to brief the Ninth Circuit and so I will practice my five minute summaries a variety of other Chief Judges have asked for private briefings the White House is extremely engaged in this process and has asked to be kept up to date and has sent people to a variety of these workshops you'll notice that this afternoon we will have Andrew McLaughlin the Deputy Chief Technology Officer and David Ferriero who is the Archivist of the United States participating in this process the basic presumption is that this requires national leadership and the basic presumption is that we have a president who talked constitutional law who if he sees a consensus and the issue is properly laid out he will understand this in about 30 seconds we have a Chief Justice who is young and fairly progressive on issues of access to legal information there are a variety of other people in the Congress and at the state level who believe this is an important issue and I think our job in these workshops is to explore the issues and try to understand is there a consensus is there something we can present and we have the ear right now in Washington and we have the possibility at least of seeing some major changes in what I think is a really foundational issue for our system of justice if you look at the Constitution it says equal protection under the law shall not be denied and the courts have ruled that that means that poll taxes for example are illegal access to the polls cannot be conditioned on access to a credit card I think equal protection under the law also applies to the raw materials of our democracy that access to the law cannot be precondition on access to a credit card cannot be hidden behind a shrink wrap license agreement cannot be hidden behind a copyright assertion these are really basic materials that need to be available to everybody so thank you so much for coming we have time for some more questions and then this afternoon I think we're going to have a very exciting program with not only the national inventory we have Jennifer Jenkins who's going to be speaking and then we have these two senior government officials that are going to take the time to come talk with us so do we have any questions? Carl since it's such a great idea leaving aside the issues that Dean Levy spoke about what are the fundamental misunderstandings or miscommunications that prevent people people who don't have some financial stake in the current system from seeing what you're talking about for example when you were talking about the head of the patent office Dave Capos who's been very progressive on some other issues you obviously disagree in the way that he's seeing it he's seeing this as an access of the government competing with private industry and sort of seen in that frame this is your undercut the state is taking on something it's like the public option for information which as we know didn't apply so well in healthcare so is that the problem? is that the primary obstacle or is it the set of things that Dean Levy talked about what's given all the reasons you gave us both the big ones and the just common sense ones what are the reasons that those who don't have a current economic stake are actually resisting this? Now what's interesting about the current economic state is a lot of the people in the business like Lexus Nexus and Fast Case spend a tremendous amount of time sourcing private materials it costs them a lot of money so there is a conception out there that industry would be 100% opposed to these efforts but in reality a lot of the more forward thinking business folk are looking at this effort and saying this could be very good for us because we believe that we do things better than our competitors but there is a feeling among many that this would be competing with the private sector that we are somehow going to be nationalizing the law and that that would be a bad thing and so that's certainly one issue there is the issue of this I never imagined that it was private to begin with so that there are so many problems in the database that it would be irresponsible to make this data available and I think the issue there is that we have ignored privacy and despite the leading efforts I wish Dean Levy were here to hear me say this judges like him who helped forge the privacy rules did a wonderful job but because there was no enforcement many of the lawyers ignored the privacy issues and we had the feeling that somehow if it was just available on West and Lexis and on Pacer it wasn't really a problem and that's an issue that I think needs to be dealt with what I found when I put information on the internet is I got immediate feedback from people saying oh my god you got my case on the internet those were you know what we have by the way is a privacy policy that says if anybody writes to us and says we don't want to see this case on Google we don't care if you were a party we don't care what your reason is we don't want to hear your reason please we will list that case in the robots.txt file right so it doesn't show up on Google now we warn people that we're only one provider and everybody else has copies of these public documents and the issue there is that we have not counted our privacy obligations we simply let them fester and I think my proposition is that if the judiciary and the executive branch and the legislative branch explicitly decide what is public and not and what the rules are we will be better off as a society and by the way privacy issues are not simply the judiciary I found 500,000 social security numbers in the congressional record believe it or not and we got West and Lexis to voluntary redact those we got the government printing office to take it off their website but it's still out there in printed copies this was front page of stars and stripes so this is no secret that I'm telling you and then the final issue that we're confronting on law.gov is what I call the jaw dropper which is when I go see a chief judge in a federal court and I said did you know eight courts assert copyright on state statutes they're jaws drop they go no, that can't be possible and I think there is a misunderstanding out there on the extent in which this public property has become private parcels in which it has been fenced off the state of California for example if you want to access final opinions of the courts you have to go to a website and before you can access that website you agree that this is for non-commercial use you won't copy the stuff and if you wanted to make a copy of the California court opinions you have to get a very, very expensive license and I think a lot of policy makers particularly in Washington are just unaware of the extent to which our legal system has been turned into private property additional questions I think we're just about at lunchtime do you have instructions for instructions for lunchtime Jennifer outside of the store so just make your way over there you may eat in here as Jamie Boyle mentioned at the beginning students are still taking exams and so congregating within the room and just around the room so your choices are grab your stuff come back in here or go outside to the Star Commons with the beautiful weather and we are reconvening at 130 and for those of you who would like to get on the wireless network or use the voice of a temple and the registration table just does that thank you and please be quiet in the halls because we don't want Law.gov to be the reason students failed ever to get on.