Open Source in Open Court (fwd)

[Robert Weissman <rob@essential.org>]

from Wired News; link at the bottom of the page....
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   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
   antitrust charges.
   
   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,
   and SendMail.
   
   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
   open-law site.
   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
   case.
   
   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
   open-source advocate.
   
   "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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