In my first learning tomorrow post I discussed how the default rules of copyright prevent the most efficient use of learning materials.That inefficiency has become particularly acute because the Internet allows distribution of learning materials at almost 0 marginal cost.
In this post I take a look at way that the most important learning materials in law are effectively closed. I think that we can learn some important lessons from the way that the most important educational resources are (mis)managed. Unlike a journalist I put these conclusions at the end.
Lawyers as a class have been amongst the most oblivious to the role of intermediaries in extracting a profit from learning materials. The primary learning materials for lawyers are of course case law and statute law. Case law and federal statute law are in the public domain, in both the United States, and in South Africa. Astonishingly despite Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886) some states in the United States sometimes engage in copyright claims: the state of Oregon purported to have copyright in state legislation as recently as 2008.
But as every lawyer who experienced these resources as free during law school finds out with a shock, the services providing access to statute and case law charge a great deal of money. Should courts and legislatures in a paper based world have collected and published the law as part of their functions? If people are expected to obey laws then they should have be able to find that law. Perhaps legal publishers performed these services efficiently or at least more efficiently than the state would have in a paper based world. I am skeptical but whether that is so or not everything changed with the Internet. The costs of collecting and distributing legal materials have fallen dramatically. Statutes and judgments are created as digital documents and can made available through the Internet for costs which are trivial compared to any other aspect of justice systems. It is logical that justice systems should make them available.
Although the vast bulk of the text for case law and statutes is in the public domain publishers have laid claim to the whole of published case reports because of head-notes, citation schemes and the peculiarity of “published edition” copyright. The result is that although the “property” awarded by the law is “thin” it has effectively resulted in exclusivity over a great deal of public domain material.
Providing free, easy access to statutes and cases that are available to all can be justified by the costs savings to government even if only the cost saving to government in providing that resource to government employees is considered. Governments have been slow to respond, ceding the role to non profit entities, Legal Information Institutes, such as the first LII at Cornell.
There are good arguments that it is the function of government to ensure that primary legal materials are free and freely available online, and no good arguments why they should not be free. Some of these are specific to law but others extend to other learning materials; the materials are taxpayer funded, widespread availability empowers people and more scrutinizers increases quality.
The ease, speed and fidelity of content distribution shows us how convoluted many of our systems for producing learning materials have become. Convoluted arrangements are inefficient and they usually involve intermediaries intent on extracting profit. But inefficient arrangements aren’t always visible too us, a large part of the socializing process involved in becoming a professional is learning not to question these oddities. Professors don’t pay the cost of using the sources of law as educational resources directly, neither do students, instead they are subsumed into the costs of legal education along with other far scarcer resources (such as the time of law professors). Economists call this an agency cost problem. To translate it for the street: if you aren’t paying what do you care?
But the inaccessibility of the sources of law doesn’t just raise the cost of legal education, it changes the nature how law functions as an academic discipline, no-one can engage with legal scholarship without access to these sources.
This story has somewhat of a happy ending. The Legal Information Institutes have done a good job of making the sources of law more widely available. They’ve been more than efficient on very limited resources. They demonstrate how educational resources can be made open. They also continue to encounter claims that the sources of law can be privately controlled.
Full disclosure: I’ve had the privilege of serving as copyright advisor to the Board of the South African Legal Information Institute. I consider Kerry Anderson who led the ingenious and dedicated team which built SAFLII to be a good colleague and friend. Currently Kerry and many of the same great team that built SAFLII are working on an incredibly exciting project; building an African Legal Information Institute.