Legal and Academic Open Access


For far too long, getting access to important documents has meant having a very expensive subscription to an exclusive service. This has held true across disciplines, including politics, law, and academia. The Internet is starting to change this, lowering the cost of storing and transferring information to nearly nothing. With the help of pioneers like Carl Malamud and Lawrence Lessig, essential information — whether governmental, academic, legal, or scientific — is being freed from the boundaries set by traditional publishers, whose role as information stewards has too often ignored the interests of the general public, and served the needs of paying specialists.
(Disclosure: I’m happy to say that Professor Lessig is on Sunlight’s Advisory Board, and is a Sunlight grantee.) (more)

In academia, via FGI, it looks like Harvard is embracing standards of open access for academic research in their Arts and Sciences departments. This is great news, as they seem to be asserting their role as agents in a broad intellectual sphere as more important than their role as agents in the academic publishing world. There is a difference between the business of publishing research and the process of actually taking advantage of that research. Access to even college course material is developing online.

Similarly, Carl Malamud, Lawrence Lessig, and have staked a claim in the realm of public access to legal research, as they recently announced the release of "substantial part of all federal cases." Their work similarly helps to distinguish between the functional world of real people needing access to research materials and the walled off publishing companies that have long held exclusive access to the materials they produce. Let’s not be naive, however, publishing companies like West have played an essential role in providing information to a broad and paying legal community that couldn’t function without their institutional role as managers of legal information.

So where’s the middle ground? Where does the clear public good of broad information access begin, and where does the public domain end? How does one negotiate the terrain of digitizing public information that has some degree of copyright asserted over it?

Mr. Malamud gives us real perspective on his attemps to realize the proper place for public information, as he lets us see into the negotiations surrounding his work, posting his correspondence with Thomson North American Legal along with the court documents his team has digitized. Among my favorite passages (pdf):

I am writing to you for guidance on the subject of where the public domain stops.

If you are asserting copyright, and if my understanding is correct that the actual cases and even page numbers are not a bone of contention, what exactly is it that is under copyright? I ask this question in all seriousness in an attempt to see if perhaps there is no con-flict at all between how you perceive your commercial activities and our publication efforts.

In the course of my work [as a graduate student], I continually dove into the body of case law, but to do so had to sneak into the law school. One of the joys of the Internet is to see information previously considered the domain of a few specialists reenter the public domain and become once again relevant to all people.

He has also posted the company’s reply, and publicresource’s press release of the collection’s release.

I’m hoping that his work with creating broad public access to legal research materials and historical national documents leads to a better relationship between citizens and legal and legislative information.

Access to a history of Supreme Court decisions puts us one step closer to gaining a comprehensive public view of all of the important aspects of legal research, and being able to see the relevant documentation of public policy from its inception and legislative consideration to its implementation and eventual interpretation in the courts.