 I'm grateful to Carl for organizing this and for organizing everything he's done in this space. We have been COVID spiriters for a long time in a wide range of contexts where we think there needs to be some updating and thinking about monopoly restrictions on access to culture and knowledge and Carl has been an ally in creating a commons movement for a long time but one of the obvious low hanging fruit categories has been the law. And a point that Jimmy Boyle has made a number of times is the puzzle that we've actually seen more progress in advancing thinking about the need for flexible access to content in contexts like music and video and text that we've seen in all the obvious contexts like the law and education and science. And so one thing I'm excited about is that we are beginning to move the ball in the places where this point should be a no brainer and I think what Carl has been doing has been really critical in advancing that. I just want to build out one small part of what Carl said in his introduction. It's the part that I've been thinking about most recently and I couldn't discipline myself to go back to the things that I hadn't been thinking about for a while. So here it is. As people around law schools know we have this whole raft of law and subjects and one of them is law and technology. But I want you to think a little bit about the way we have law because of technology. So there was this country a long time ago, it was called England. It developed this thing called the common law. People who looked like that did it. There were not that many of them at the highest level of the English common law system. And what they were able to do in their relatively small, relatively non-transparent system of law was to build a consistent and coherent body of common law. And then the common law was imported into the United States over Jefferson's outrage but nonetheless that's what happened. And over the course of the 19th century there were of course many thousand opinions of the common law that were developed and published or not published, just developed. And then a company called West came along and started to publish these opinions. And what people recognized was this assumption of the common law of consistent and coherence law was false. In fact it was inconsistent, consistent and incoherent in the law. Because as you looked at law across the many jurisdictions there was no centralizing force that was actually achieving consistency and coherence in the way it existed in England. And what that led to was natural change in our understanding of the law. What could say formalism moved to realism because of technology. We had a radical remaking of the common law because of technology. And I would submit we have Justice Scalia here because of technology. For his views of the law are radically tied to this fact about the inconsistency that was produced by the recognition of the diversity of the common law system. So that's a story of what happened in the late 19th to the early of 20th century. And interesting that 100 years later, the late 20th to the early 21st century in a certain sense we have the opposite problem. Not too much law, but too little law. We have access to law, access at least through money which if you have money is excellent in primarily services like these two traditional services and my favorite new services, this task case service. But the model of this kind of access we can simplify as a kind of stupid word search. So the idea is we've got these massive databases and standard technologies for figuring out how we get access to law within these databases. And these technologies have been different ways to get people to think about string words together and if you're trained long enough by librarians you can actually do it pretty well but most of us are not sufficiently trained. So the efficiency of search in this context is poor where efficiency means not the quickness with which the machine is able to pull a record and present it to the user but the ease with which one goes from what you want to see to actually seeing it. If you think of what you want to see in a broader sense than just what is the rule of law for consideration in this jurisdiction if you think of what you want to see as I have a pattern of facts related to my client and I'm going to see how that pattern of facts has been dealt with by other courts in other jurisdictions and the pattern of facts here is the crucial element that has been underserved in the way in which we search and organize the materials because of course the idea of the common law was similarly situated cases meaning similar fact patterns would be dealt with in the same way but of course that level of analysis or understanding was so far beyond the traditional model of what searching and databases could be that nobody even tried to get that instead we just tried to organize doctrine in a way that was cut out by keynote searches and all sorts of things like that but we organized doctrine to allow the lawyer to do something with the facts. So it's a poor system for doing what we think the law at its core should be doing matching similar cases but at the same time we have that poor service from technology we have this other phenomenon going on where the cost of lawyering is going through the roof the actual amount of money the lawyers get paid for their work not at all fields of course certainly not in public related law but in private related law the cost of lawyering is going up and these two facts poor searching and cost of lawyering going up lead to a hypothesis I won't claim this is true I just suggest that we think about it like this that the use of law in the actual practice of law the use of rules from sovereigns that gets expressed through courts is in an important sense going down we have this odd dynamic that we're pricing lawyering in the model of Langdell out of the market Lawyering the model of Langdell meaning trying to find public rules that apply to our cases or our clients or our facts and use them effectively we can't do that anymore because the cost of doing that in an important sense has become too great so that we substitute something else and the something else we substitute looks a lot like what law looked like before we had courts and rules and you have people sitting down and negotiating out the deal like okay it would really be too hard to figure out what the law really would say about our facts but look we're reasonable we can figure out what the answer here should be and so you have silent and you have arbitration you have agreements that are in some sense in the shadow of the law but that is profoundly costly to the law itself because the whole assumption of the law was that it would produce a public good that other people could use when they tried to resolve the conflicts or decide how they would proceed in advancing whatever their interest was in society the public good was we could know what the rules would be that we would apply or be subject to as we try to do something well to the extent we should law into this private space this arbitration space that just exists in the shadow of the law we lose the value of that public good and we also lose something at the core of what lawyering was about so there's a story that my uncle who's a hero and so I wildly overstate his qualifications in all contexts but my uncle is the person who got me into the law and he was a litigator in a small firm in Madison and he was a litigator in the sense that he was in court all the time litigating all sorts of cases from the smallest contract dispute to very large complicated towards cases and he described to me a litigation he was called into with a very large New York firm I won't get anybody angry at me it's not my pattern to avoid getting people angry at me but in this one case I won't get anybody angry at me by naming the firm this firm had a very complicated litigation matter to pursue and he was meeting with the very top litigation partners of this firm and the very top litigation partner of the firm had appeared in court five times in his career five times in his career because of course who could afford to litigate things anymore and this is again the point of the way that lawyering has just become priced out of the practice of law and he asked is there any litigator in this firm by which he met somebody who had actually litigated before and no there wasn't anybody in that firm who had litigated because nobody litigates anymore everybody does everything in the side way so the sense in this law is are there any lawyers anymore who are producing this public good of the law now what's needed in this space again this is something Carl emphasizes I'm going to compliment that point a little bit more what's needed is a certain kind of innovation and the kind of innovation we need is radical new ways to take and process and understand the cases obviously other legal material too statutes and municipal rules or anything like that but the part I want to figure out here right now is cases and what we understand from the theory of innovation is that that sort of innovation is only going to come from outside the traditional institutions of the law or it would only come from outside any traditional institution because the innovators dilemma is the story about how the people who know the most about a field are the people who know least about how to innovate in that field so what we do here is radical new ways to understand cases by which I mean a kind of quote understand meaning a radical new ways for machines to understand cases to be able to automatically process and automatically identify salient features into the side case in this sense due to the law what Google did to the net everybody here well except the kids but everybody here remembers the net before the radical change in search engines that Google was the first big instance of I remember in like 97 98 feeling the net was going to be hopeless like lost there was no way to do anything using it because there was no effective way to get access to it because our conception of how to organize access to it had been set by these traditional Yahoo I'm going to give you a list of everything you should look at or I'll sell you top building for your advertising work or something like that but the actual innovation of a new way to think about accessing the material like Google gave us radically changed and increased the value of the net and of course other people do it today too Yahoo has an amazing lab for thinking about new ways to think about searching this context but the point is they began to think about making this material accessible in a way that it hadn't been accessible before now the question I would ask is what are the conditions under which that kind of innovation is possible what do we need to guarantee for that innovation to happen and we need to recognize innovation is risk and the return percentage return from innovation is tiny there's a little tiny on that screen right now and the more risk in the context of innovation field here's Paribas is less innovation less risk is more innovation so the point that is obvious I should think although it's taken a long time for our society to get here is that one risk that we can eliminate is resource risk meaning the risk that the underlying resource that you depend upon in some sense will turn against you or be priced out of your accessibility priced through licenses and other initiatives so to use a basic resource if you take this basic resource of information the simplest way to increase innovation around that resource is to eliminate what I call the resource risk there's been a lot of people studying this my favorite analysis of this comes from this wonderful paper by Peter Weiss Borners and Cyberspace a little bit misleading title but what it's basically talking about is the evidence we've got and the model we've got for understanding the evidence about why open access to underlying government information resources turns out to be radically more productive for the economy than the cost recovery model that is the standard model for access to data in Europe and in big parts of law in the United States and so I just want to share some of the conclusions in this great report so first as they argue economists argue the benefits to the American treasure from adopting this open access that accrue from corporate and individual taxes from the secondary publishing and services activities stimulated by the access policies far exceed any revenues that might be generated through cost recovery processes so the point is if you think beyond the first step where in America we give the data away for free in Europe they charge access to data think about the effect on the economy from giving away the data for free the net effect on the economy is greater than the amount of money you're going to get from just paying for the cost recovery for that data cost recovery policies often mean that the budgetary constraints prevent some government agencies from acquiring information that has already been created or collected by another part of the government resulting in agencies either doing without or using inferior alternatives the point that you didn't mention but the point that you've mentioned many times before is the number of state courts that don't even have access to their own opinions because their state budgets have been cut such that they can't afford the access to the Westlaw searches of their own opinions so you have government agencies that can't get access to government data because we've made government data accessible in a way that doesn't live up to these open access standards no one supplier, public or private can design all information products required to meet the needs of all users in a modern information-based economy private sector and media areas are increasingly important players in developing information economy that's my point about the innovation dilemma innovators dilemma which is what we need to do is to make sure that lots of people who are outsiders, radicals, people who don't think like the dominant entities have the right to innovate on top of the data and that is only assured if the basic conditions that Carl described of a bulk access permission-free certified signed source is available for everyone to build upon and a recognition that efforts to build transnational data satisfy the meteorological or environmental statistical or cartographic are hampered by national agencies bent on preserving intellectual property pursue local cost recovery projects this study did an estimate of the economic value produced by the data made available in either a cost recovery or an open access model so this is in euros the investment value in the EU was 9.5 billion the economic value from that was 65 billion in the United States 19 billion economic value 750 billion what are the multiples here in the EU the data produces 7.16 multiple in the US it was a 39.5 multiple this is real economic value produced by adopting a model of access which is free access at the base and innovation on top and this of course now being copied in Europe too so the Dutch Ministry did this fantastic study on the effect of access to government data here and saying prosperity effects would maximize when data is sold in marginal cost marginal cost is defined as all costs related to dissemination of public sector information to shipping, promotional costs personal information technology costs that's the most you should be charging to get access to something enormous additional economic activity can be expected by extrapolating the studies results to all public sector information that's the project at law.gov now my point is we need these kinds of insights to be applied in this context what again in my view should have been the easiest of all contexts for this kind of open access insight to apply so what exactly explains the resistance here well one part of this is a kind of common story or we could say a common story there's a certain kind of mistake that's made a mistake of seeing the special case for the general case so the special case here is that innovation and creativity sometimes require requires a monopoly right call it a copyright so business, so creativity on the model of these guys or this woman that's the kind of creativity that typically requires for it to be maximized in some important sense within the society something like this proprietary right but that special case is not the general case and in the general case we often have innovation creativity without a monopoly so science, education and also the law which increasingly obviously produces lots of innovation without that kind of exclusive right and so the common lesson here common lesson that we've talked about at Harvard for a long time the exclusive right here might help the monopolists or the people who get the benefit of the exclusive they can point to very high profit rates which lead to very high stock values which people mistake for general economic benefit to society but it's not it's general benefit to a particular company that's what that produces it helps the monopolist but it hurts innovation and hurts the spend of that knowledge and of course it's not just an error it's not just these people have done their sums incorrectly or just are mistaken about the fact there's also a very fundamental interest here in some sense there's all the money in the world on the side of protecting exclusive access to these resources because it's a very safe business to be in the business of selling municipal codes people have got to buy them there's no risk in that business and if you can get that monopoly right it's extremely valuable to you and as Judge Posner taught us more than 35 years ago you're willing to spend up to $1 less than the value of that right to protect that monopoly right so it's not just that people like Carl can go around and just state these obvious truths and the world is going to collapse around these obvious truths it's going to take a big fight because it's not just a fight against mistakes it's a fight against very significant economic interest and the world is against this obvious I think the point that we need to get support for and having librarians behind this is critical is that we've had a world where the law has effectively been played in the monopoly way for too long maybe 150 years depending on how you count it and it's time in my view that we try something new, something new there's something new here is this free access to this material project which Carl started so that's the points I'm happy to make I did it more quickly than you wanted me to but I don't need to take questions or you'll be clean thank you but to be a general discussion as far as this workshop and that's one reason Larry did 15 minutes and we have 15 minutes to bomb Barton with questions so any yes, I think another reason that it's hard and I thought you were going to say it came right up to it and saw why and what to do about it is that there's a tragedy to come even aside from interest calculations it's a locally reasonable decision for the federal courts to keep the cost in pace even if 120 million turns into a billion dollars to the treasure that's not destroying money that the federal court system will get back so it actually is an optimal decision for them and of course everyone's making these locally optimal decisions and that's the tragedy to come that globally that's no longer the optimal decision that seems an easier problem to solve than fighting violence which I say they're a client of ours you know how powerful and wealthy they are but that seems an easier thing to solve looking locally and trying to figure out you know it's the same with the patent offices there's some way that we can make a bargain with them that they get an equivalent share of the general prosperity so that they're not losing by making that that thing do you have any thoughts on how to do that? I completely agree with the description of the dynamic although I wouldn't say it follows from that that it's an easier problem because of course the powerful interest on the other side is going to exploit this fact to try to drive local constituencies to fight hard to keep their right to collect their inefficient tax now we've seen these inefficient taxes throughout history that's what stopped development in Europe until they figured out that the Danube should not be a series of local taxes which would just be a river where people could move goods and that's going to happen here too and it requires some kind of leadership at a higher point but I was going to resist trying to talk about the corruption issues but let's just frank about it but policy makers sufficiently independent from those sorts of wealthy interests since it's not wealth but it's just special interests here they're not going to be able to recognize that fact I mean we see this repeatedly in lots of contexts for example if you take some of these some of these very large stores like Walmart or I can remember this kind of fishing store the Bass store which come into local and say okay we'll build a store here but only if you eliminate our property tax and if you don't we're going to do it in the next county over so you're going to lose all the benefit from that now as any kind of storytelling this is completely insane for people to be doing this because what they're doing is they're giving up the tax base they're competing with people who are paying tax so those small businesses are driven out of business and if you look at the actual returns from these large businesses if they had to pay tax they would not be profitable they only are profitable because they're not paying taxes like the rest of us so here's an obvious public good a collective action problem here these local communities ought to get together and just ban this kind of activity enforce everybody but there too we can't get that kind of agreement because these businesses leverage this local point against the more general so I agree with you I just don't think it necessarily points us to the easiest path but I think that there's like compelling argument to be made did you want to say more? I think yes, yeah I think that one way is to wait for the federal judiciary to become fully enlightened and to join our side in this fight against taxes and taxes but on the theory that I think there ought to be some bargain we can cut with now there ought to be some way we can say look here is the way that you will not be especially harmed if this happens to the Patent Office you can increase your you can set your own fees and keep the money if there's always these negotiations with Pat Office who controls the revenue stream it just seems to me that if we can come up with some way to enlist pacer on our side of the debate that we're in much better position to make the argument against the private interests and that we won't be able to do that if we just wait for them to be enlightened and serve the public interest I think that's going to happen I agree we should be waiting and I don't think anything Carl's been doing has been about waiting and I agree that we can structure it like that then we can grease the wheels towards the right answer I guess I just come back to my pessimism about that fiscal deal being struck in so many places where it still goes the other way the other one that's very familiar to people around this place is Spectrum where the actual economic benefit from auction in Spectrum is probably negative because the value you get from auction the revenue you get is less than the amount of economic activity that you drive out because you've set it off as an exclusive property right as opposed to something you get on the Commons you couldn't say to Congress about the billions of dollars that they're getting in that revenue because of this whole game of society they just don't hear that kind of reasoning so we need to get them to see that reasoning especially here but I think it's going to be a hard fight let me make two brief points on that so on the question of the benefits going back into the courts as opposed to generally the society so the actual revenue stream last year was about 80 million dollars on Pacer by the way these numbers come from Steve Schultz who came out of Harvard and is now at Princeton it turns out the executive branch spends 20 or 30 million dollars a year accessing a Pacer system the Justice Department spends 4 million dollars a year and so there is a possible compromise there in which the executive branch takes some of this money and moves it over and we recognize that our law schools aren't getting access and so there's a potential for some of that to happen the second point is believe it or not Lexus-Nexus in that fast case and quite a few of the other vendors have been very strong participants in law.gov now I'm not saying Lexus-Nexus has endorsed all these concepts but their CEO was at the Center for American Progress two days ago and was talking about how he believes access to raw materials is one of his biggest costs that he spends a tremendous amount of time negotiating cross licensing arrangements getting poorly formatted documents and reformatting them with great potential for more efficiency and cost of materials and just as importantly a more level playing ground and he actually believes he adds more value than his competitors as does fast case, their CEO is there as well and so they actually see some potential benefits in this kind of a movement I still think it's going to take national leadership and a movement around swell from librarians and students and law professors and deans to make this happen though Chris I don't know is your speech going to be copyrighted or can we have copies of it after you? No I don't think I do a CC zero and I do have a question for around fast case and it's a small question but fast case brings up the Code of Mass Regulations it's a mass trial for libraries mounted that pays for and I haven't written fast case to send me it's on our public website so people can't find it to the public but there's something that works me now about fast case using our material that we created in the public and you're right charging, they won't charge me because I'm currently in the state so the amount of money we have to pay to buy a bag which I'm not going to do so should I be irked? I'm irked I stay irked but should I be writing fast case? So you're upset because they're taking what you've made available for free in their selling? I don't think yet when I there was another publication internally that another company wanted to put under there I was told by my lawyers not to give it to them because they were going to make money on it and it was created in the public domain and I thought about it so this is a hard argument to make but let me try to make it the wrong way you should not be irked you should celebrate that you should be happy about it the more people who figure out ways to take the material you're putting in the public domain for free and make it profitable to make it out there it spreads the information and that's your objective to spread the information and if you don't allow them to be able to make money off it we're not going to have enough innovation around it so one of the most interesting points in the history of free software free software, the new Linux operating system was that when companies decided they wanted to come in and start to make money off of this the founders of the free software movement celebrated that idea they didn't want the money because free software still lives in poverty but the point is he knew that until you had that kind of commercial support you wouldn't spread and make free software succeed and I think that's the same way you should think about this the more people who use and make money from your data the more it shows how valuable your data is even if you're not getting that kind of money but I take it you went in the business you went into not because you wanted to make a lot of money but because you wanted to spread knowledge it's a fairness to them and that's why we have we've had other people take and take off the heading and then use just the data and when you click through it it clicks to our stuff but then that's something else Carl mentioned this project we were part of CC0 and some of Carl's work was the first stuff released under this creative comment zero protocol which is basically a way to say we waive all rights that we could waive in this context and talking about it in this context is how to add back norms so I don't want to sue you if you do something with my public domain data that I don't like but I do think it's appropriate to say look the decent person says you got this from the following place or here's the original source or here are the people who you should thank for this type of data and I think that's a totally appropriate layer of normative restriction that should be put on the spread of this stuff there should be any legal description so this may be a naive question so apologies I'm trying but I'm wondering if you all and I mean everybody in the room here potentially other business models that sort of think of medical information as a somewhat similar type of world where you have doctors who practice medicine you know you don't want to practice medicine you don't want to there's reasons around why the forces would be to contain that type of information and yet as a consumer I can go and find a lot of information about medicine so I just throw that out as an interesting example a question mark whether or not some of the services that have been developed which pay money might apply to this same kind of giving people access to information about the law now I'm thinking more about the end to use your consumer more than necessarily employers or law firms but just throw that out there for any thoughts I have I completely agree with the methodology we've got to be looking across fields to see who does it well who delivers this well I'm skeptical that we would come to the conclusion that medicine does it well just an example I didn't need to but other context I think we should be looking exactly that way to see how they deliver the best yes sir more of a statement than a question but I see the problem is two fold in the sense of dissemination of the information so providing intelligent navigation capabilities to find the right profile specific information but I see a fundamental problem of the way the content is created as well when you drill down to specific state legislatures you'll find that they're extremely prior to the dietary in the way they create content they do it because they've always done it that way you could go down even further into the senate in the house and they're very different so you have completely different methodologies and processes and so forth and not to insult anyone in the room but you have career public service folks that are driving this that are really in control of the situation that are not motivated to change so how do you motivate individual state governments and individual municipalities to not only adopt these intelligent navigation tools but to standardize the way content is created so I think you're the expert in this so there's really a couple aspects to what I felt the obvious things like paywalls on dissemination and copyright restrictions but there's also a need as you point out for standardization so for example Paul Verkyle was the new chairman of the administrative conference of the united states over a hundred regulators and folks that do administrative law the national center for the state courts the administrative office of the courts one of our strongest recommendations is that they need to come up with standards what is adequate metadata what is proper document structure what is a document ID authentication is an example of a standard and that's one of the things that I think are missing right now you know that said if all they gave us is word perfect files be an email gateway that would be better than the current system but it's not going to bring us to the point where we truly have an efficient and productive system and that's going to require standards and it's going to require bringing the level of the production of data up the office of the federal register and the government printing office have been doing a wonderful job on the federal register and the code of federal regulations it's in well formatted XML it's authenticated it's available in bulk and we can point into that as an example that government can in fact do it properly when they want well it's a very good point standardization to your point around medical there's an HL7 standard our content is created there are standards in aerospace the Department of Defense has been using standards for many many years to address this problem so it's a very good point there has to be a grassroots effort in adopting some common standards in terms of the way content is created and it's got to be them doing it because you know as I said there's tens of thousands of courts out there and they can all decide what they want to do and there's a good reason for that and so the important thing is not for us to be saying they need to do it better the important thing is for the judicial conference association of Supreme Court you know justices and the states to decide what they want to do it better and so a lot of what we need to do here is not beating up the judges and the other officials it's convincing them that there's a real problem that they need to adopt and internalize that's been a lot of the goal of creating this big tent and trying to bring it up to them as a problem that they can recognize and then begin to deal with so I have to go catch a plane and I apologize I won't be here for the rest of the day thank you very much