Posted on May 8, 2008 in Fair Use, IP, open access, open access law by Brian RoweComments Off

Harvard Law School joins Harvard FAS in mandating OA by a unanimous vote of the faculty. From the law school announcement, May 7, 2008:

In a move that will disseminate faculty research and scholarship as broadly as possible, the Harvard Law School faculty unanimously voted last week to make each faculty member’s scholarly articles available online for free, making HLS the second law school to commit to open access. (Duke went open access in 2005)

“The Harvard Law School faculty produces some of the most exciting, groundbreaking scholarship in the world,” said Dean Elena Kagan ’86. “Our decision to embrace ‘open access’ means that people everywhere can benefit from the ideas generated here at the Law School.”

Under the new policy, HLS will make articles authored by faculty members available in an online repository, whose contents would be searchable and available to other services such as Google Scholar. Authors can also legally distribute the articles on their own websites, and educators here and elsewhere can freely provide the articles to students, so long as the materials are not used for profit.

“This exciting development is something in which the whole Harvard Law School community can take great pride,” said John Palfrey ’01, executive director of the Berkman Center for Internet & Society and newly appointed vice dean of library and information resources. “The acceptance of open access ensures that our faculty’s world-class scholarship is accessible today and into the future. I look forward to the work of implementing this commitment.”

The vote came after an open access proposal was made by a university-wide committee aimed at encouraging wider dissemination of scholarly work. Earlier this semester, the Faculty of Arts and Sciences voted to adopt a policy similar to the Law School’s new initiative….

Comments By Gavin Baker:

  • This is not only another university OA mandate, but another unanimous faculty vote for an OA mandate. The unanimous faculty support makes a very good development positively beautiful. As I pointed out in my article on the Harvard FAS mandate: “The publishing lobby has often argued that the call for OA mandates is a sign that researchers oppose OA and must be coerced. This argument always flew in the face of the evidence, but the unanimous Harvard vote should be the last nail in the coffin in which we bury the idea. For the same reason, the Harvard vote decisively confirms Alma Swan’s finding that the overwhelming majority of researchers do not resent OA mandates and would willingly comply with one from their funder or university.”
  • Kudos to all involved, especially Stuart Shieber, Robert Darnton, Terry Fisher, and John Palfrey.
  • It’s the same as the policy adopted by the Faculty of Arts and Sciences. The text of the motion approved by the law school faculty is now online (also on John Palfrey’s blog). The new policy is voluntary until September 1, 2008, when it will become mandatory.

Comments By Brian Rowe

  • This is a large step moving forward the Open Access movement. It will challenge a lot of the publishing contracts in force at law reviews. Only about 30 law reviews are currently set up in a way that allows all authors to contribute to this type of open access repository. Over the short run law reviews will likely make exceptions for articles from Harvard faculty and still try to keep all rights reserved from other writes. Over the long run this could be the beginning of a move to an open access legal publishing model driven by schools them selfs.
  • This could have an impact on the adoption of Scientific Commons Open Access Legal Program. Journals that are members of the program have already agreed to allow authors to make copies like those required by the open access initiative.

Remixed from Gavin Bakers post at FOS

Edited to add notes on Duke’s open access repository which predates Harvard’s by three years.

Posted on November 15, 2007 in CC, EFF, open access, open access law,, Public Domain by Brian RoweComments Off

“Public.Resource.Org and Fastcase have reached an agreement for the release of a totally unencumbered repository of 1.8 million pages of federal case law, including Courts of Appeals decisions back to 1950.” Carl Malamud

This is a huge win for open access law. For too long case law, which is in the public domain, have been locked away by Westlaw and Lexis (Wexis).

Last Summer when we (Sarah and I) visited CC this was one of our major topics we discussed with Jon Phillips. I am ecstatic to see CC and EFF involved in the process of liberating case law. Although I do find it a bit odd that the press release lists a “brand-new Creative Commons mark—CC-Ø—which will allow us to affirmatively certify that this information is public domain.” It is more accurate to say they are resurrecting an old CC mark with possibly an new look. The upper left hand of Freedom for IP has been sporting a CC PD mark for the last 2 years.

To illustrate how important it is that this case law is in the public domain one can look to CC description of what can be done with materials in the public domain the case law “may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.”

The next major challenge for the public and the legal community it to find the best way to make these 1.8 million pages usable. Having all the case law in the world online is only a start, the one thing that Wexis has done well is make case law usable with internal links, head notes summaries and cross references.

Here is my first thoughts on how make the case law usable:
1. XML it – Mark it up in a open format that allows other to repurpose it easily
2. Wiki it in a way the preserves the text- Wiki style case summaries
3. Tag it for current precedence – create a tagging system marking which cases are still good law and allow users to comment and change these tags as new decisions are made.
4. Cross reference it – add internal links or a way to easily move from one case to another within the documents
5. Add a uniform index of issues.
6. Add an index of facts.

The players best suited to do these things are the old guard of Wexis, the new juggernauts of Wikimedia and Wikipedia, and the new academically supported Altlaw. I am curious who will step up to the plate and how. There is so much ground to cover in making this case law usable that several groups could work together. Wexis can probably get 5-10 more years out of the locked system, but if one of them wants to open there systems they could dominate a new open market place based on alternative revenue. Ultimately I think the usability solutions will come from whoever is able to harness the power of law students, public interest lawyers and the general public in one collaborative forum.

Past articles on these issues:
FindlawWestlaw kills FindLaw, Remove your links
Altlaw = public domain law database

External press coverage:
Boing Boing
Official Press Release