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Open Source in Open Court (fwd)
from Wired News; link at the bottom of the page....
updated 3:00 a.m. 1.May.99.PDT
Open Source in Open Court
by Heidi Kriz
3:00 a.m. 26.Apr.99.PDT
Picture this: Microsoft's crack legal team invests countless hours and
dollars perfecting a legal strategy to counter the US government's
Then, just weeks before the case goes to trial, the company details
its plan in a full-page ad in The New York Times.
Insanity? Perhaps. But that's exactly the kind of legal strategy that
Harvard Law School professor Lawrence Lessig feels his profession
should pursue in certain judicial cases.
Taking a page from the open-source software movement, Lessig is out to
turn the traditionally adversarial and secretive world of the legal
system on its head.
"We're testing the idea that the sort of 'parallel processing' that
goes on in open-source software development can be used effectively,
in some cases, in developing a legal argument," said Lessig.
Lessig's new model -- called open law -- is an effort to infuse
appropriate cases with the same spirit of cooperation and good will
that built critical Internet plumbing software, such as Linux, Apache,
Lessig is testing the approach with Eldred v. Reno -- a challenge to
the Sonny Bono Copyright Term Extension Act. Passed in October, the
law extends to 70 years the copyright protection that for most works
used to be valid until 50 years after the author's death.
In January, Eric Eldred, founder of Eldritch Press -- a company that
publishes the full text of rare and out-of-print books on its Web site
-- challenged the law in a federal lawsuit.
Now Eldred has some volunteer help from teams of law students at
Harvard and at the Intellectual Property Clinic at the University of
California at Berkeley's Boalt Hall School of Law.
In the coming weeks, the Berkman Center for Internet and Society will
publish five or six of the students' potential legal arguments on the
In the collaborative, volunteer-driven philosophy of open source, site
visitors are invited to brainstorm and send in comments, suggestions,
and recommended reference sources to help shape the development of the
Lessig is one of the nation's leading thinkers on the challenges of
legislating cyberspace. Last year he was briefly summoned by US
District Judge Thomas Penfield Jackson to testify as a special master
in the Microsoft antitrust trail.
Lessig opted to apply the open-law project to Eldred v. Reno because
the case touches on age-old intellectual-property issues, but also has
wider constitutional implications.
"The broad issue here is preserving the Internet as an intellectual
space for comment and publication," he said. "That space is being
threatened by the increasing legal trend of 'propertization.'"
The outcome of the case could affect many Internet users, which makes
it a good fit for the open-law project.
"With a collaborative effort made possible by the medium of the
Internet, experts in intellectual-property law can help us frame this
case in a constitutional argument," said Lessig.
These benefits work in the same way they do with the model for
open-source software, according to J. Maynard Gelinas, a long-time
"The open software model and now the open-law model are the same
principles that have been used forever in science -- [those of]
scientific peer review," said Gelinas, a system administrator for BBN
Technologies. "The quality of things that are reviewed by a large
number of eyes is generally improved."
The idea of inoculating the traditionally combative world of trial law
with a little good will attracted second-year Boalt student, Jason
Schultz, to the project.
"The usual adversarial atmosphere sets up this high-noon situation,"
said Schultz, the student team leader of the research group at Boalt's
Intellectual Property Clinic. "You go into the courtroom, blast away,
and only one side is left standing."
Schultz said that the current climate of copyright and patent law --
driven by powerful entertainment conglomerates -- is very different
from the original spirit of the law, and that the Eldred v. Reno
experiment might restore balance.
"This ... case is a public-interest case that involves issues that can
affect the greater good," he said.
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