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< < | READY FOR EDITING. See end for my own note for future drafts | | The Problem(s) with open-source law | | I am certain the above issues must be resolved for open-source lawyering to exist. Furthermore, I believe these problems require technical solutions. Whether a technology exists to resolve them is an open question. | |
> > | Shawn, I think the real
issue here is how closely to hew to the "open source" production
model. Most of the difficulties here could be characterized as
"difficulties in working collaboratively in law." From that point,
the idea of "open source" is really only an inspiration rather than a
plan of approach. We are asking how lawyers and laymen can
collaborate on large scale to produce legal work product. We are
hoping to achieve some of the advantages of production that anarchic
approaches like free software have produced in other domains.
(One of the many advantages of "free software" over "open source" as
notation for what we do is that it's much less subject to metaphor
abuse. People come to me all the time with schemes for "open source"
this and that, which need to be evaluated on their merits without
regard to how computer software is made and distributed, or even
without regard, as here, to the principled distinction between zero
and non-zero marginal cost.)
Because legal activity is fact-dependent, and—as Jerome Frank
pointed out so long ago—facts are uniquely combined and only
partially discoverable in each individual social situation with which
legal process deals, legal products have non-zero marginal cost.
Even if they are merely bitstreams, the must be adapted somehow each
time they are used.
So we are really asking here, in my opinion, not how law can be
produced the way free software is produced, but rather how lawyers
can collaborate so as to raise productivity substantially, that is,
so as to make much more legal service available to more clients at
prices they can afford to pay, while improving the quality of the
services rendered in absolute terms.
I think this question does bear close relationship to what we've been
talking about. It's more, however, like how to collaborate to
produce major motion pictures without coercively controlling
distribution. Lawyers need to be able to discover opportunities to
collaborate with distant or previously-unknown colleagues, to
evaluate the proposed collaborators involved in the opportunity, to
jointly access and manage privileged material, to generate work
product for deployment by primary counsel, and to construct billing
systems that allocate and distribute shares of fees received. They
also need to be able to think collaboratively, using the Web as a
place to evolve rather than just communicate ideas.
As you will have seen by now, I also think this questions bears a
close relationship to what we've been doing, too. I believe that
this course is part of my effort to evolve the arrangements you're
talking about. My 1L course, which you've also taken, is designed as
the introduction to thinking like that kind of lawyer. Each of my
other courses is designed to use technologies of collaboration to
induce skills that contribute to being that kind of lawyer,
intellectually. Colleagues like Conrad Johnson, Mary Zulack, and
Jane Spinak are offering other courses and teaching within the
existing program in ways that help with other aspects of training
such lawyers. As more teachers are themselves brought to relearning
how to practice law, their teaching too will change. Students,
however, should both demand and become faster change themselves,
because you need to master the existing (new, rapidly-changing) world
in order to begin your careers. The thought-road you're on is the
crucial one. Don't be decoyed by a metaphor.
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****Notes for revision**** | | 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. | |
> > | No, Devin, the GPL is
merely one set of terms available for software that's free to copy,
modify, and share. Most free software licenses are "permissive,"
which means that they do not require modified versions to be
redistributed under the same terms as the modifier received in the
root stock she modified. This property of requiring downstream
preservation of license terms, often called "copyleft," is the
conceptual innovation of the GPL. Licenses that don't use copyleft,
like the Apache Software License, or the BSD and MIT/X11 licenses,
permit the downstream modified versions to be licensed however the
modifier wishes. This is still FOSS. So are the hybrid models in
between, like the Eclipse license, which can best be described as
"permissive as to executables, copyleft as to source code." All have
their place in the FOSS ecology. This might be a parallel to the
discussion Shawn begins here, modulo the general warning about
comparisons.
Also, neither widely-used version of the GPL requires distribution of
source code to "anyone who asks." Under GPLv3, source code must be
provided to anyone who has a copy of the executable, or binary,
version of the code. It is permissible, though not usual, to require
proof of possession of the binary. Under GPLv2, source may be
provided only to persons provided the binary, if the source is
provided "along with" the executable. Under GPLv2, executables can
be provided without source code, provided there is a written offer
for the source code included with the executable. In this instance,
only, source code must be provided to anyone who asks. Conceptually
the case is an edge condition, because distribution of source "along
with" binaries is the preferred and most common means of complying
with the license. But commercially it's very important, because
product manufacturers whose products embed GPL'd software often do
not feel inclined to put a CD of source code in the product box.
They feel it confuses their customers. So they prefer to make a
written offer, which leads to an obligation to produce source code to
all requesters. | | 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. |
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