By Sarah Glassmeyer
Now that it’s been 20 years, I can admit that I didn’t quite have a real career plan when I decided to go to library school after I graduated from law school. It was, to borrow a term from American football, a “Hail Mary pass.” I was putting myself in motion and hoping and praying I landed somewhere good. I did know two things: I wanted absolutely nothing to do with technology or copyright law.
There is another saying that comes to mind: “Make plans, God laughs.”
Through a circuitous route, the details of which I won’t bore you with, I find the professional topics that I am most passionate about lay right in the intersection of those things: open content, open source technology, and standards. I hope, by the end of this piece, you are as excited about these topics as I am or, at the very least, understand how they impact all verticals of law and can greatly impact the future of how we create and use legal information and knowledge.
Let’s Set the Stage
I analyze legal technology for a living. The tools I’ve studied range from those used by large international corporations to manage thousands of contracts to something used by solo practitioners to track their client engagements. I don’t care if it’s for transactions, litigation, criminal, Big Law, Small Law, In-House, or access to justice, in my mind most legal technology just helps legal professionals create, use, analyze, or store legal content, be it data, information, or knowledge.
I like to divide the delivery of legal data, information, and knowledge into two pieces: content (the text of the material being delivered) and container (the format that contains it.) Right now, aside from a few notable exceptions, most of this content and the technology used to access and manipulate it, is closed down. That is terrible for legal innovation, Access to Justice, and all the practitioners who don’t think they need to worry about those first two.
It would be impossible to fully cover every specific local variation of copyright coverage in a piece of this size, especially as it relates to content. In the United States, where I reside, the text of law at the federal, state, and local level is considered to be in the public domain and free of copyright encumbrances. (However, in practice, freely accessing the law is not always easy, although that is changing.) Other countries put copyright restrictions on the text of the law, such as Crown Copyright in Canada, and others make accessing the law that governs citizens almost impossible.
Of course, the work of law is more than just using primary law as published by government bodies. Lawyers of all types create legal knowledge products, including litigation filings, transactional documents, and advice to clients. In creating these, they consult materials created by commercial publishers or within their organization.
This content does not float around in amorphous blobs. Traditionally it was contained in physical containers such as parchment, paper, books, and loose-leaf. However, as the computer age came upon us, this content was digitalized and contained in databases and other electronic resources.
In recent years, the content/container line has been blurred and legal professionals have been able to use analytical tools that manipulate sources of legal data, information, and knowledge to assist in their creation knowledge products. These tools require content to be trained as well as programmatic languages to analyze them. Also existing in the grey area between content and container is metadata applied to content (such as taxonomies), as well as format and deployment standards.
Open Content and Technology Powers Innovation and Access to Justice
Legal innovation is about more than legal technology. However, one cannot deny that technological advances have provided an engine to power many of the “legal innovation” changes that can increase efficiency and quality of legal work. Almost every piece of legal technology has some sort of analysis tool for the content that is contained within. Finding the seed content to do the initial modeling and training to create those tools is not an easy task and making this a scarce resource is inhibiting the ability of new legal technology providers to enter the market.
As an example, one can look to the long term dominance of Thomson Reuters and RELX in the legal knowledge space. This duopoly was only recently chipped away at by new and innovative companies such as Fastcase and Casetext because the base content of primary law was made more readily available through the work of activists and cooperation between new market entrants. Another new legal research company, Ross Intelligence, is currently pausing operations as they engage in litigation with Thomson Reuters over possible copyright violations for the content they used to train their AI.
A major goal of legal innovation is increasing efficiency. Why do lawyers spend time reinventing the wheel and creating content from scratch? The answer, of course, is they don’t. They use internal clause banks or boilerplate files to create content. Most content created by legal professionals in the course of their work is covered by copyright. But what if legal professionals decided to share content that is repeatedly used and that requires very little creativity? Creators can specifically and affirmatively alter the copyright attached to their work through licensing tools such as Creative Commons. They can also join consortiums to create shared and agreed upon content. One such experiment in shared open content in the legal world is OneNDA.
As for the container piece of legal innovation, some of the technology that makes up the digital containers of legal content is proprietary, but not all is! There exists a category of technology called “Open Source Technology” that allows for free use of the tools. Free, of course, meaning no cost to acquire, but there will be costs associated with deployment and maintenance. As with openly licensed content, there may be limitations on how the technology may be used (e.g. commercial or non-profit use) and what derivatives can be made of the original work.
Open source technologies allow for a relay race of development instead of everyone starting from the same starting point over and over again. A few years ago, Jonathan Pyle, a Legal Aid attorney in Pennsylvania created Docassemble, an open source expert system. That code base was then used by others to create commercial products that improved upon the user experience and functionality of the original tool. One of those tools, Afterpattern, was then acquired by NetDocuments. Would NetDocuments have an expert system integrated within their suite of tools without the initial open sourcing of Docassemble? Maybe, but of all the tools available to acquire, they chose that one.
I would be remiss if I didn’t note the access to justice implications of closed content and containers. It seems obvious that a person should be able to access the law that governs them as a basic human rights issue. However that is not always the case and the work of Legal Information Institutes is critical everywhere, but especially in these more closed off jurisdictions.
Like legal professionals, Self-Represented Individuals require more than primary law to solve their issues or even understand what their legal issues may be. Open primary law would allow access to justice minded individuals and organizations to more easily create knowledge products to assist these people. Additionally, legal practitioners could choose to openly publish explanatory materials.
As for technology, I know from experience many large legal organizations employ in-house technologists to create crosswalks or improvements to existing commercial offerings. This is a solution not available to many non-profit organizations.
All user types - innovation, access to justice, and maybe someone like you that just wants to be “a regular lawyer” - can benefit from an open legal ecosystem. You do not have to be an IT professional to realize that some of your legal tech tools do not play well together. A lack of uniformity in metadata and other types of internal formats is a big reason. Some of this can be solved through adopting standards such as the SALI metadata standards. And some of it can be solved through legal technology providers adopting open deployments through Kubernetes or other open systems.
Artificial intelligence-based generation and analytic tools are becoming more commonplace. It’s also a rapidly changing landscape, so much so that some of the major tools didn’t exist when I was first asked to contribute this article. Right now, most of these tools are black boxes. We don’t know what they were trained on, we don’t know what they prioritize, and we don’t know if we can change any of this to better meet our individual needs. Open alternatives to the commercial offerings would allow the legal community to better understand the choices made in analysis by these tools and possibly choose to alter the code to prioritize other results.
If we continue along this trajectory, soon tools thought of as critical to standard legal practice will be only available to the few and users will be at the mercy of the decisions of technology companies. An open content and technology ecosystem in the legal world would allow for more intelligent use of these tools and also allow for a more equitable distribution of this technology.
There is always one giant elephant in the room when I talk about open source technology and content that I have thus far avoided: money. If lawyers are knowledge workers and they get paid for their knowledge, why should they give it away for free? Or pay for their internal technologists to contribute to open source projects? Aside from the fact that open content and technology allows for more creative solutions to existing problems and can assist in access to justice, the legal world needs to stop ceding control of the tools it needs to perform to commercial entities.
While one should never consider the relationship between legal professionals and vendors as a “us vs. them” situation, community created and controlled content and technology will even that balance of power and possibly provide more useful solutions as it comes from the user group.
What can I do to help?
You’ve read this far, so congratulations! You’re educating yourself on the issue and that’s always the first step towards making a change.
If this is something you want to actively support, some other options to explore include:
Support the work of organizations like SALI, Legal Information Institutes, and oneNDA. Support can come in the form of volunteer hours, monetary donations, or encouraging adoption and use within your organization.
Learn the copyright status of primary law in your locale and advocate to decision makers for more openness if it’s not fully open. (Spoiler alert: it can probably be more open and accessible.)
If you are a decision maker at a firm or organization, consider open sourcing technology or content produced in-house, encourage use of open source technology in homegrown products, or allow your creators to contribute to open source projects (content or technology).
About the Autor Sarah Glassmeyer is law librarian that has worked in academia, non-profits, and legal technology for the past 15 years. Her main professional interests include making legal technology understandable and accessible to all and encouraging the use of open content and technology through the legal world. Sarah lives in a rural area in the middle of the United States and if the law thing doesn’t work out she’s going to start to raise sheep.