Massive online depository of public information : about the public.ressource.org experiment

A New York Times article from John Markoff (August 20th 2007) : A Quest to Get More Court Rulings Online, and Free [1] told us about some experiments in online legal information described as fights between David and Goliath (the article used rather the image of Robin Hood)

It’s first about Carl Malamud and its several projects that can be seen on http://public.resource.org/.

Then about Hyperlaw, ended after several lawsuits against West.

Finally about the Altlaw project (still in beta-version) Columbia Law School qui contient déjà quelques dizaines de milliers de décisions de justice américaines.

This article is making a lot of noise, on the both sides of the Atlantic Ocean (in France : Emmanuel Barthe, Précisement.org All The Government’s and the Courts’ Information — Le combat de Carl Malamud pour la mise en ligne gratuite des documents officiels et des décisions de justice aux Etats-Unis, Aug. 21st 2007), (for the other side : Lexblog, Law should be free ’Robin Hoods’ take on LexisNexis and Thomson West ; Simon Fodden sur Slaw, Carl Malmud Publishes Cases (with very enlightning comments on the ’real’ feelings from regular (oand professional) users of the LII : CanLii and the LII (Cornell) ; Trademark Blog "A Quest To Get More Court Rulings, Online and Free"...)

I find id astonishing that these issues are coming out again and again. Once said sempiternal (but necessary, let us recognize it) arguments : “no one is not supposed to be unaware of the law”, “the legal data are produced by the authorities thus are public domain (alternative = it comes from our taxes !)”, “not of selection, we want everything and immediately, and with the insurance zero defect”… it remains still full with questions with what is only one gigantic workflow, a superb complex system worthy of the most thorough studies. Among the problems in general “forgotten” in the study of existing of this system, we can find :
 the Civil Law/Common Law issue : there is a vital interest in Common Law to preserve its jurisprudential precedents intelligently, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). On the other hand, for Civil Law, the concept of “Jurisprudence” with a capital J, is to be taken with less respect.
 the anonymisation of the decisions of court (take a look on Altlaw and note the presence of recent, non-anonymous criminal decisions and perfectly against all standards of personal freedom, such as from now on a citizen of the European Union hears it)
 consolidation of the legislation : obviously, it is not the problem of Common Law, it is precisely a rather specific characteristic to our romano-Germanic Law, but with the increasingly strong preoccupation on legal safety, that will become a true stake international to envisage tools for the making-law process (légistique) and a more extensive reflexion on art to make the laws.
 costs and organisational preservation of the intelligent production of such a mass of data upstream, and even if there is no selection of the data.
 the cost of maintenance of the technical infrastructures so much with regard to the quantity of the data to be downstream, treated, the quantity of applicants to be satisfied, and the quality of the data themselves = their perenniality and especially their safety (to prevent that some disappear, or worse, that they are falsified)

When somebody throws a glance of outside to this debate, it seems to him that there is a big clash between two or three giant vendor (in the article, only Thomson Westlaw and Lexis are aimed, generally it’s been added Wolters-Kluwer). They are generally seen as obstacles to constitute these data bases, to enter the market, because they have big databases, very old, often expensive, against individuals or very small structures which decide one day to diffuse part of these data free of charge.

This debate, one already had it in France (Historical of ’electronic’ legal documentation), a long time ago, in 1968/70 with Jurindex and Prof Buffelan-Lanore, in 1984 with the report Leclercq, in 1996 with Adminet (and others…), and since 1997 with Legifrance and from now on the SPDDI. The Public Service of Dissemination of the French Law on the Internet.

It is very complicated to summarize all this in some sentences. The facts of the case are much more complex than the simple fight between those who want to diffuse free of charge and those who want these data very expensive (and in the middle of all that, the public Administration which either lets make (as in the USA, or in France until 98), or intervenes while deciding on all (finally all that it can) to diffuse freely (but not free of charga) as in France since 2002).

It is not so easy only to gather all these data, even if they are better and better produced and even if they tend to respect finally certain standards. It is not so easy only to disseminate these data through interfaces simple but not simplistic, making it possible the user citizen to find itself there like the legal professional. It to build a retrospective stock (until which depth of field is not so easy I will go ? starting from which date caselaw ? the legislation ? doctrines ? , and then which geographical field. It is not so easy to also regulate flow = one will make all the 2.665.664 Decisions in civil and commercial matters of the only year 2005 only for France !.

All this can explain why that had a certain cost to constitute these warehouses of data (in stock), and that that always has an enormous cost that this to maintain these warehouses (in flow). The concern of the access to the Law is perfectly creditable, and even constitutionally recognized. It is necessary to also recognize the right of the editors who took the risks at the time (prehistoric for data-processing times) assembling these bases, to produce them, to disseminate them : they can draw certain benefit from them, and they also take part in their way with the respect of the principles of intelligibility and accessibility of the Law.

Publishers and vendors were and are always collaborators essential to the correct operation of the public service of dissemination of the Law. It will be pointed out that among the laws of Rolland [2] of the public services, not only there is no mention of the exemption from payment, only of the equal treatment, but especially it there with the notion of the continuity of the public utility : I am afraid that these often individual initiatives, if they are creditable and always carry great hopes and good ideas, can only seldom survive facing technical and economic realities, and that they must unfortunately, a day or the other, to put the key under the door. Even if they are not eternal, the generally quoted publishers inspire more confidence to me in their permanence, at least for the next few years.