What Does It Really Mean to “Free the Law”? Part 2

“It always seems impossible until it’s done.”

 

Attributed to Nelson Mandela, that quote fits the experience of groups around the world that sought over much of the past 20 years to make the law freely accessible on the internet. Beginning today (November 9th), dozens of members of the Free Access to Law Movement (FALM), along with other supporters, are meeting in Sydney, Australia where AustLII is hosting the 2015 Law via the Internet conference. Some countries attending are currently at the “impossible” stage and look to achievements in Canada and elsewhere for inspiration of what is possible.

The Harvard Law Library / Ravel Law arrangement to make all reported U.S. case freely accessible via Ravel’s website discussed in Part 1 of this series, though not explicitly part of this movement, follows and builds on similar work done by FALM member groups in the U.S. and abroad. In this post, I’d like to focus on Canada’s efforts to “free the law”, and its opportunities to continue to create a new standard for what is possible.

The best time to plant a tree was 20 years ago

 

The second best time is now.

Canada is extremely fortunate that such a tree was planted. 22 years ago, in fact. In 1993, the Supreme Court of Canada put the country on the right path by making its judgments available online. Its collaborator in this endeavour, Lexum, then a legal info technology lab at the University of Montreal, has gone on to play a significant role in many other Canadian achievements essential to securing free access to law in Canada, most notably through their role as the developer and operator of the CanLII website.

CanLII, as the site explains, “…is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII’s goal is to make Canadian law accessible for free on the Internet.” It has nearly 1.5 million documents across over 300 case law and legislative collections, and at nearly 10 million visits in 2014 is quite likely the most used legal information resource in Canada and unquestionably essential to supporting the work of the legal profession, the courts and the public interest in free access to law. It even launched an API (Application Programming Interface) in 2013 that provides software developer access to case law and legislative metadata to support the creation of new or augmented services that relate to primary law, and it hosted a hackathon to promote it!! [Disclosure: I served as CanLII’s CEO for a four-year period ending in May of 2015, so I’m clearly biased about its positive impact].

The tree that is CanLII was also planted nearly 20 years ago. In a 2011 article on Slaw entitled “$34 Well Spent”, I provided an overview of how CanLII came to be. Please check it out if you are interested in hearing a great tale of foresight and forward thinking from law societies, courts and other supporters. But as I don’t intend the present post to be a delightful stroll down memory lane, I’d like to turn away from discussing what’s working, to discussing what’s missing.

While in many respects the Harvard / Ravel arrangement (along with other existing American free law projects) might appear to merely bring American public access to case law in line with Canada, in reality it goes much further.

The law is not fully free if it is only accessible as a “retail” service

 

In my earlier post, I talked about “retail” and “wholesale” access to American case law facilitated by a range of providers. Retail service – whether free or fee-based – in the form of a website with a good search engine that permits professional-grade research into a comprehensive body of law is what most of us need. Wholesale services, on the other hand, is bulk access to the body of law (or to, for example, jurisdiction-level subsets) and is the format required by a publisher or developer that wants to use the content to create differentiated or competitive retail services and niche applications.

Two elements particular to the U.S. make its market well-suited to supporting wholesale access. First, the Public Domain status of case law means that whether the content is collected from court websites (like UC Berkeley’s Free Law Project) or scanned from case books (like Harvard’s Free the Law project), provided the copyrightable elements are stripped out, there are no lingering restrictions on use, re-use or further copying and distribution. Second, the presence of multiple competitors of fee-based retail services has created incentives for the main players to offer up wholesale access (at a price) and to look for opportunities to collaborate.

I’ve suggested that the Harvard / Ravel deal will supercharge the wholesale market in short order because: 1) when the Ravel exclusivity period ends, the cache (over 40,000 volumes) will be available to anybody; and 2) the arrangement is also designed to “Encourage and assist federal and state courts in making all prospective court decisions freely accessible online”. I described the consequence of success as follows:

When bulk access to case law is free for everybody, it gets harder for anyone to make a buck selling simple access. As the commercial value of U.S. case law begins to diminish, the incentives to build something on top of that data increase.

Turning back to Canada, the issue here is not that we have a less competitive retail market and no commercial wholesale market. Well, I’m not thrilled about that, but there is in fact a greater issue. The real barrier in Canada to “fully free” access to case law begins at the courts themselves.

Who owns case law in Canada and who can make it available?

 

Ask four judges and get four different answers:

  • I wrote it, I hold the copyright and I’ll distribute it to whomever I choose
  • Judicial reasons are public documents over which there is no copyright
  • The Court, through the direction of the Chief Justice, can determine who has what rights to deal with the content
  • Crown copyright vests with the government, so maybe they get to decide who can use it?

To varying degrees, CanLII and the fee-based legal research services have found a way to manage these issues – at least insofar as their retail publication of case law is concerned.

But what if you are new on the scene? Whether a researcher at a university, a legal information publisher looking to enter the Canadian market, or a legal tech start-up that seeks to build a niche service to address a public need or market gap, in the absence of a wholesale market how do you go about acquiring the content you seek? Is it feasible to speak with every provincial, superior, appellate, territorial and federal court or tribunal? And if you try, what kind of reception can you expect?

We are entering an exciting age of machine-aided analysis (I’m trying to avoid calling it Artificial Intelligence) of legal information. Hundreds of millions of dollars are being poured into research and startup companies seeking to lower the cost of access to justice and bring forward new and beneficial methods in managing legal information. (Disclosure #2: I’m currently engaged in paid consulting and other capacities with a few such organizations, directly and as a volunteer industry advisor at LegalX) But how much of that effort and investment, and how many benefits will come to Canada if the raw resources – i.e. the case law – is not available?

In my experience, there are several courts that “get it” and are willing to try to find a way to make case law available to support new entry. Unsurprisingly, the Supreme Court of Canada is among them. But even among supportive courts, challenges and significant delays can arise. The main challenges are: 1) working your way through an ad-hoc process that rests on a yes/no decision of a Chief Justice; 2) juggling a mix of standards and unique requirements that reduce the possible uses of the whole to the strictest of terms imposed by one; and 3) the court actually finding a way to provide or facilitate access to both current and historical decisions in a usable format. As many Canadian lawyers know, there are several courts in this country that don’t even publish their own decisions anymore. Moreover, even when you navigate these challenges, you can still find yourself with a patchwork of materials that can limit or even foreclose the viability of the whole exercise.

The next step – free the law for a new generation

 

CanLII exists and is successful because the courts support its mission – free access to law – by providing case law for retail use. We rightly celebrate meeting the original challenge. Today’s challenge, however, is to support the growing ecosystem of legal information innovators by systematizing and standardizing access terms. If each new player has to run the gauntlet at each court in order to gain access to case law, Canadian legal information innovations will forever be limited to the outputs of the existing service providers. That’s not good enough.

In the U.S., the legal tech market is exploding with ideas, and countless people and organizations are trying to bring real change. Ravel Law itself is among the U.S. startups that couldn’t exist without access to a sufficiently broad and deep corpus of case law. In Canada, organizations like Knomos, Blue J Legal and ROSS are attracting headlines and investment for their plans to serve professional and public interest in understanding the law by applying advanced technologies to extract insights from legal information. This is just the tip of the iceberg of what could come, but without adequate access to Canadian law, the whole iceberg could just as easily float away (or at least float to jurisdictions like the U.S. where prospects might be better).

So when it comes to really “freeing the law” in Canada, we’ve only just begun.

Fixing this problem may seem impossible, but only until it’s done.

Comments

  1. A brief addendum to a long post: Quebec is different.

    Slaw readers will be familiar with SOQUIJ for, among other things, their participation in Slaw’s “Summaries Sunday”series. As a provincial crown corporation tasked with distributing Quebec’s court and tribunal judgments, SOQUIJ is a leading provider of free and commercial retail legal information services, as well as a wholesale provider of case law upon which the national legal information providers rely. Simply put, the hurdles to gaining wholesale access to case law in the rest of Canada are almost completely absent in Quebec.

    In a function that dates back decades, SOQUIJ supports the government’s desire that people have free access to Quebec case law. It’s online portal for citizen access is very good and constantly improving. http://citoyens.soquij.qc.ca/

    SOQUIJ’s public-focused activities are supported by commercial activities of the sort you expect from LexisNexis and Westlaw. Its commercial database services are believed to not only be competitive with these international giants, but may in fact have a greater penetration and market share within the province. http://soquij.qc.ca/fr/services-aux-professionnels

    As for the wholesale side, while there was a rocky patch in its history (settled by a unanimous 2001 Quebec Court of Appeal decision), current access is fair and cost-effective for commercial providers and not out-of-reach for niche players or those with smaller budgets. http://citoyens.soquij.qc.ca/editeurs/

    Courts and governments looking to make a strong commitment to truly freeing the law, would do well to examine and maybe even emulate the SOQUIJ approach

  2. Geneviève Gélinas

    Merci, Colin, for the addendum. As I was reading your post, I was making mental notes to prepare an explanatory comment about SOQUIJ’s role :^)

  3. Colin, thank you so much for articulating these known and necessary next steps towards truly “free” access to law in Canada. I couldn’t have said it better myself, and trust me, I’ve tried! http://knomos.ca/the-tetris-effect-what-video-games-can-teach-law/

    Speaking from my own experience at Knomos, it can be hard at times to shift conversations with key legal stakeholders (including but not limited to the Courts) towards providing free (as in “wholesale”) access to public legal information. These crucial decisions about increasing meaningful access to public legal information shouldn’t be had alone but rather together, as an open dialogue for the public good.

    We at Knomos fully agree that we must all work together to standardize access, identify opportunities for collaboration, and support the growing ecosystem of Canadian legal innovation.

  4. “We rightly celebrate meeting the original challenge. Today’s challenge, however, is to support the growing ecosystem of legal information innovators by systematizing and standardizing access terms. If each new player has to run the gauntlet at each court in order to gain access to case law, Canadian legal information innovations will forever be limited to the outputs of the existing service providers. That’s not good enough.”

    Unless CANLII becomes (or is?) the supplier of raw court decisions for publishers. Then that would be a different role for CANLII.

    Somehow one cannot help but think the main reason why some courts no longer publish their decisions anymore, is level of effort required to change and coordinate internal processes (tweak some tehnologies) plus modify some court employee work tasks, to make this all work within a reasonable turnaround time.

  5. Colin, in his interesting post, suggests that “the law in not fully free if it is only accessible as a retail service”. To be really free the whole content should available wholesale and — one suppose – in order to be fully free … at no cost.

    My take on this is that, on the one hand, governments and other official sources of law should provide wholesale access (in today’s terms, they should adopt and implement Open data policies). Otherwise, you will have a state monopoly on legal information. Indeed, bulk or wholesale access is a central requirement that has been addressed to the State and to State-based institutions which produce the law from the beginning of the Free access to law movement.

    On the other hand, such an obligation could not systematically applied to anybody which will collect and use the state-produced material (Disclosure: I am president of Lexum a Free access to law provider. Lexum is also under contract with CanLII). I cannot see the principles under which those who invest to create value from the source material provided by the government should have the same obligation that one applicable to state institutions. The downstream actors, the various intermediaries, CanLII, Lexum, and the “legal innovators” if you want, do not have an obligation of giving away their content. They could do it, but they don’t have the duty to do it. Many reasons may explain why they will not provide bulk access. Let’s illustrate this with the situation in Canada.

    Firstly, as alluded to by Colin, the courts may have provided the Free access provider a licence which does not authorize the redistribution their decisions. Secondly, and related to the previous constraint, many courts feel they have a duty to protect privacy interests of those named in their decisions and they consequently reclaim some control on the subsequent use of their decisions. I don’t doubt that those who are looking today to get a wholesale access to the collections of free access providers have scientific and other bona fide objectives. This is legitimate. Those who build these collections, and the courts which produce them, also have very legitimate concerns.

    Let’s clarify what is involved here. There was indeed a wholesale download of some of the CanLII content in the past (see this Colin’s post here [http://www.slaw.ca/2014/05/26/google-gonzalez-and-globe24h/] and that Pelletier’s one here [http://www.slaw.ca/2015/06/18/complaints-against-globe24h-deemed-well-founded-by-the-office-of-the-privacy-commissioner/]). The results have not been funny. For sure Globe24h actions represent an extreme, but after living through that episode nobody can dismiss the risk of abuse as irrelevant. Again, I am certain that all the companies and ventures mentioned in Colin’s post are not out there to exploit the data in any negative ways.

    A third constraint, one of different nature but as legitimate in my point of view, comes from the fact that organizations that mobilize the resources needed to publish the law for free need the recognition attached to being the source of the benefits accruing from the free publication. All together these element should explain the situation in Canada.

    Colin wrote: “When bulk access to case law is free for everybody, it gets harder for anyone to make a buck selling simple access.” (my emphasis). I submit that this statement remains true even when the word “bulk” is omitted.

    Daniel Poulin, Lexum

  6. Michael Dacks, Midatadin

    I couldn’t agree more with Colin’s excellent post. It should be paramount for Canadian policy makers to make digital access to case law and court records a priority. We should never forget that this is public domain information in its truest sense that should be, and can be, easily accessible to public, private and individual interests as a true foundation stone of the healthy and functioning democratic system that Canada strives to be.

    This access (retail, wholesale or otherwise) provides efficiency and a whole slew of tools and solutions aimed at better provision of legal services to the public. However, in the 21st century, digitized access is also critical in order to promote Canadian innovation in the space and to foster new thinking about an accessible and transparent court system and the all-too-murky litigation process in ways that would simply not otherwise be possible. By way of analogy, would staring at a paper-based roadmap tell you in real-time how long your drive would take in current traffic the way Google Maps or Waze can today?

    Having been called to the Bar in both Ontario and Israel and as co-Founder of an international legal data analytics startup, Midatadin, for which access to large data sets of court activity is crucial, it is interesting to see the different approaches taken in Canada and Israel in providing comprehensive digital access to all court decisions. When thinking in terms of big data, there is still critical information to be gleaned from even the most mundane court proceedings that can in turn be used to create valuable information for many actors across the public and private sector.

    We are proud to be part of the LegalX cluster at MaRS’ first cohort of companies, and we are equally excited about the prospects of bringing our unique set of products to Canada. However, the question remains for us and others whether Canadian courts even have (or will have) the data sets we need, let alone are willing to provide access. If legacy thinking and the inertia of a well-established, self-governing profession prevents the law from being brought into line with the technological capabilities now available to us, we will have missed a valuable opportunity to facilitate Canadian legal tech innovators to develop their products domestically.

  7. Michael: Google Maps is terrific, but you cannot download all the content in bulk, right? Name Google’s anything, … Books, Scholar, what you want, you cannot download it wholesale. You can use it, you can use the service, but you cannot just take the whole thing because you feel it would be good for your research.

    On something else, I’m all for innovation, but I am not sure I am following you about “the all-too-murky litigation process”. This is a serious statement, I guess you have something specific in mind?

    Finally, don’t take me wrong, I wish you the best in your efforts to improve the legal system. There are a lot of good things to be done.

  8. On the other hand, consider this from Zacharias v Leys, 2005 BCCA 560:

    “[33] There are two aspects of this litigation I find troubling.

    [34] The first is the learned trial judge’s approach to the issue of liability. The appellants have not asserted any error in that approach, but I would not wish it thought that by this judgment I accept it.

    [35] Before the practice developed of posting all judgments of the court below on the internet and thereby saving them for posterity, I would not have considered it necessary to express such a caveat, as the reasons for judgment below would have disappeared into obscurity.”

    DC

  9. I’m encouraged by all the discussion on Parts 1 and 2 of this series. I feel a Part 3 coming on!

    That, however, will have to wait for another day. For now, I’d like to highlight some of the comments.

    Adam picks up on the theme of the challenges faced by a new player making a solo attempt to gain support from the courts for access to decisions:

    “crucial decisions about increasing meaningful access to public legal information shouldn’t be had alone but rather together, as an open dialogue for the public good.
    We at Knomos fully agree that we must all work together to standardize access, identify opportunities for collaboration, and support the growing ecosystem of Canadian legal innovation.”

    Jean identifies the resource constraints that can impact even a willing court’s ability to facilitate access:

    “Somehow one cannot help but think the main reason why some courts no longer publish their decisions anymore, is level of effort required to change and coordinate internal processes (tweak some tehnologies) plus modify some court employee work tasks, to make this all work within a reasonable turnaround time.”

    Daniel draws attention to an important distinction – namely, that the obligation to make the law available rests with the lawmaker and not with any existing publisher:

    “My take on this is that, on the one hand, governments and other official sources of law should provide wholesale access (in today’s terms, they should adopt and implement Open data policies). Otherwise, you will have a state monopoly on legal information. Indeed, bulk or wholesale access is a central requirement that has been addressed to the State and to State-based institutions which produce the law from the beginning of the Free access to law movement.
    On the other hand, such an obligation could not systematically applied to anybody which will collect and use the state-produced material.”

    Daniel also underscores the legitimate interest of the courts in ensuring that whomever gains access to the content would share the court’s interest in safeguarding the privacy interests of the individuals named within the documents.

    Michael’s comments emphasize two important considerations. First, that the material under discussion here (which he expands to include court records) is intentionally public and generally accessible in an open and democratic society. And secondly, that gatekeepers and incumbents may not see or may not be in a position to identify and realize the opportunity to extract value and deliver benefits back to the legal system:

    “When thinking in terms of big data, there is still critical information to be gleaned from even the most mundane court proceedings that can in turn be used to create valuable information for many actors across the public and private sector.”

    Finally, the extract of the 2005 BCCA decision David offers up reminds us that the courts have long-since known the consequences of judging in the internet age:

    “[35] Before the practice developed of posting all judgments of the court below on the internet and thereby saving them for posterity, I would not have considered it necessary to express such a caveat, as the reasons for judgment below would have disappeared into obscurity.”

    To this last comment I would add: the choice of whether we should or shouldn’t make judgments available online is settled. So why is it still so hard to put that information to good use?

  10. Congrats Colin, your post has really struck a chord with the Canadian legal community! A few follow up points based on the discussion thus far:

    I fully agree with Daniel’s first point that: “governments and other official sources of law should provide wholesale access (in today’s terms, they should adopt and implement Open data policies).”

    At Knomos, we’ve had a great experience thus far working with the BC Queen’s Printer, which has made all of BC provincial laws & regulations accessible under a permissive open licence (http://www.bclaws.ca/standards/2014/QP-License_1.0.html). You can read more about the Knomos partnership with the BC government here (http://knomos.ca/bcdevexchange/).

    While getting courts to provide open access to case law has proven to be a longer & more challenging process given the legitimate privacy & informational integrity concerns raised above, these concerns should inform the implementation of government open access policies rather than bar wholesale access outright.

    Although I agree that the same open access obligations may not extend to intermediary publishers like Lexum, public bodies including legislatures, courts & tribunals can, and should, do more to provide direct open access to their data.

    In this sense, bulk access from intermediaries becomes moot when the data is made directly available by government bodies under standardized terms of open access policies.

    Today, true value added by legal intermediaries is no longer defined by free retail access but rather increased usability. At Knomos, we’re leveraging data visualization to enhance the discoverability of key legal search results (see also read Kate Simpson’s Slaw post on designing for “findability” not just search: http://www.slaw.ca/2014/01/28/design-for-findability-not-just-search/).

    I fully agree with Michael that true innovation builds on open access to public legal data to deliver new tools that solve real problems and enable users to do more (disclosure: we’re proudly part of the LegalX cohort too). When open & direct access comes to pass as the default policy across all government bodies (and it will), only then will the next-generation ecosystem of Canadian legal innovators truly flourish.

  11. “Although I agree that the same open access obligations may not extend to intermediary publishers like Lexum, public bodies including legislatures, courts & tribunals can, and should, do more to provide direct open access to their data.”

    Perhaps there are others who can speak more about open data policies /practices in their organization. “Open data” has different levels of meaning to different groups and government publishers.

    On web presence at some govn’t sites, open data appears for readers and web consumers, to be grouped separately as literally data sets, not standalone, static e-documents that have a defined beginning, middle and end as expository, static text (such as case law which is not a data set).

    A good long time example is Statistics Canada web site has standalone publications and data sets (CASIM series for a fee) which the latter, the consumer can further manipulate and analyze for their own purposes, after downloading.

    Meanwhile, offering free and findable source publications, ie. case law, legislation doesn’t easily problems of justice access and literacy levels for the target client groups.

    In fact, the Internet may have easily revealed to us, as niched professionals, some confusion among some Internet users which information source is reliable on a long term basis, never mind, interpreting the content.