"Law is the operating system of our society ... So show me the manual!" Not alas, my witty words, but those found on the site Public.Resource.Org, run by the redoubtable Carl Malamud. The basic idea is simple: that laws can only be obeyed if they are truly public, which means freely available, not hidden behind paywalls. After all, how can the phrase "ignorance of the law is no excuse" have any validity when key documents are only available to those with pockets deep enough to afford them?And not just laws: we need case law and associated government regulations too.
In the US, Malamud has been fighting against a duopoly, West Publishing and LexisNexis – known as Wexis in the business – to open up the US's operating system:
If ever there was an oligopoly, Wexis is it, and the two companies that share the $6.5 billion market for access to U.S. law fight hard to keep their locks on tight. The lawyers in the big law firms and the salesmen from West and Lexis maintain that those who need access to the law are able to get it at an affordable price, but that is FUD in the extreme.
Countless government lawyers, public interest lawyers, and solo practitioners are quick to point out that they are priced out of the market and cannot afford access to the tools they need for their job. For the rest of us, the law truly has been locked up behind a cash register, affordable only to those who can pay the enormous price. We are a nation of laws, but the laws are not publicly available. This is a fundamental issue for democracy, for if we are a nation of laws, we must be able to consult the cases and codes of our government.
But, this is more than just about democracy, this is about innovation. The "market" for legal information is poorly served with the ancient, clunky services provided by the two market leaders. The entry price into the legal market is millions of dollars to access primary legal materials that any grad student or young entrepreneur ought to be able to simply download to their laptop and use to create a better mousetrap.
This is a familiar fight – it's the same one being fought in open access and in open data. Malamud has done more than most to make these public documents generally available, often by skirting close to the limits of what is legally acceptable. Not content to take on Wexis, and the US vested interests, he's also putting key public documents from around the world online, including some for the UK that – regrettably – are not already freely available.
One such concerns "Design of buildings and their approaches to meet the needs of disabled people - Code of practice". If any class of documents ought to be freely available it's those that concern the disabled, who deserve all the help they can get in making their lives a little easier. So putting this Code of practice online seems like a huge service to not just the disabled but the UK in general. And yet that's not how the British Standards Institution (BSI), the nominal "guardian" of this Code of practice, sees it.
Almost unbelievably, the BSI has sent a DMCA Notice of Copyright Infringement demanding that Public.Resource.Org take down its copy of the Code of practice, formally "BS 8300:2009". To his credit, Malamud has not only refused, but written a cogently-argued reply [.pdf] that explains what's really at stake here:
The right to know and speak the law has been, since ancient times, an essential component of a society governed by the Rule of Law. That the law should be known to all was fundamental, but equally important was that the law should not be for sale. When the Barons of England confronted King John in 1215 on the meadow of Runnymede, one of their chief complaints was that access to the courts had become matter of access to money and that judgments were for sale to those who chose to pay for them. This led to the most long-lasting provision of Magna Carta (1297 c. 9), one still in force in the United Kingdom and many other common law jurisdictions, Article 29: "We will sell to no man, we will not deny or defer to any man either Justice or Right."
Malamud addresses the point that BS 8300:2009 is not a law, but a regulation:
The fact that the standard at issue here concerns technical matters does not change the imperative of providing it to the public. Law has always been technical. Regulation of public safety has always stood hand-in-hand with the regulation of the procedures of justice. When the Barons at Runnymede forced King John to agree to Magna Carta, the articles guaranteeing access to justice came right after the article proclaiming a system of uniform weights and measures.
He goes on to point out that he is not simply copying the document, but building on it, making it better and more useful:
Public Resource is not simply publishing codes and standards, but improving their readability and usability. With the Internet, governments and individuals have the power to link standards directly to the laws that incorporate them, to make the standards searchable, to present the information in new ways that enhance public understanding, to create new businesses and spur innovation.
By making standards available and useful to all, we can make society better. Public safety officials can do more to protect citizens. Researchers can enhance their knowledge of technical fields. Small businesses can more easily comply with the law and increase commerce and trade.
Innovation and education will benefit by opening up this world, but at the root are basic issues of democracy and justice. Government cannot tell people that they must obey laws that are only available in exchange for money. And government should not punish people for speaking the law to others.
That's absolutely right – it's the basic premise of openness: that by letting anyone access an abundant, informational resource more can be done with it for the benefit of all. And it's absolutely right that laws and regulations must be freely available if they are to enjoy any legitimacy in a democratic society.
It's great – if rather embarrassing – that the American Malamud is trying to defend the right of British people to access freely the source code of the United Kingdom. And it's shameful that the BSI, a private company incorporated by Royal Charter that claims to work "in the public interest", is not only failing to do that itself, but is trying to stop him.
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