With FOSS, the GPL defines open: under specified conditions, are you compelled to share, with anyone who asks, certain of your work product - namely, source code.

Also, to use the "open-source" analogy, you need not only define "open" - but also the second part of the term, "source." What is the "source code" of lawyering? This leads to the question: what is the "executable program"?

I think these are conceptual challenges to using the "open-source" metaphor in the context of law. Unlike with software, there is not a clearly distinguishable "program" (which cannot be altered easily) and "source code" (the hidden mechanics that allow customization). Anyone that wants to use someone else's brief can alter sentences at will. The fundamental mechanics of lawyer-writing are human-readable (at least, lawyer-readable), and can be adjusted at will.

I think the heart of the HLS wiki and your concerns here are really primarily about the power of distributed, decentralized cooperation. In short, distributed lawyering. It's about setting up a structure so that people can cooperate asynchronously and without strong centralized coordination. In order for this to function, some openness is necessary: people cannot contribute to a project if they cannot read it. However, the heart of these structures is really about distribution, not openness, I think. An example that might concretize my point might be helpful. Take an arbitrary group of lawyers who want to work together; say, a hypothetical group of 100 lawyers at a nonprofit law firm called Pseudonymity Now. They might make a password protected wiki so that all 100 lawyers, and perhaps a few trusted interns, can contribute to a brief. They might make small tweaks at 2 am, or write whole paragraphs. This is harnessing the power of distributed working. However, it is not really "open" in the same way that the GPL, in FOSS World, compels the sharing of the (otherwise inaccessible) source code with anyone who asks under certain circumstances.

-- DevinMcDougall - 12 Nov 2011