Access to Law

With the recent tragic death of Internet sensation Aaron Swartz, coming as it does so close to the launch of my own Internet venture, it only seems appropriate to pay tribute to him by highlighting one of the areas where our interests intersect: open access to the law.

Only a few years ago, the state of Oregon attempted to make certain copyright claims relating to its public statutes. Eventually that came to an end, but there’s an interesting analysis of the problem on the Harvard blogs, which can be found here.

If you think about it for just a little bit, it’s easy to see how such a thing could possibly be sound public policy. With the state be able to stop a litigant from citing were discussing their states laws in court documents? To stop law school professor from writing about it in a textbook or making assignments to do an analysis to his or her students? It boggles the mind. But a true explanation isn’t all that hard to decipher. Cash-strapped states are looking everywhere for ways to make money, and if they can take a piece of all the money that’s being made in the legal research and information industry, then why not?

Following Oregon’s example, California tried a similar thing, or at least gave it some serious thought. Currently, however, you can go to the website (which is run by Lexis) and you are told that there are no claims of copyright to the official reports. However, before you can gain access, you have to agree to the terms of service, which raises an interesting question: can the terms of service of any website, and not just this one between the state of California and Lexis, take away from a visitor that which the law gives?

The user is granted a limited license. And then the TOS says:
Provider may terminate this license at any time for any reason.
Really? Any reason? How is that open and free public access? Since the state is involved, how does that not lay the groundwork for arbitrary and capricious discrimination?

It’s one thing to disrupt the site, or disrupt access to it, it is quite another to use the content peacefully for whatever uses the user has in mind, whether the state of California or Lexis likes it or not. For example, what if a competitor to Lexis, me, for instance, wants to access this law and reposted on my own site? Am I going to have to fight the state of California and Lexis over my right to do so? Maybe, but I’m pretty sure I’d win that fight.

More on this later.


About Nat Colley

Nat Colley graduated from the University of Michigan Law School and practiced law for over 20 years at both the trial and appellate level in state and federal courts and across a wide range of issues. He is also a writer, and has a number of produced plays to his credit. He is an attorney hiring consultant, guiding clients through the attorney selection process.
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