Ruby the Painting Elephant
Image [cc] leesean

I wasn’t sure if dusting off the old Elephant Post idea would work, but I’d have to say that we had a lot of people step up and answer the call. Nina Platt threw out the challenge to Law Librarian Bloggers, and like the true delegator I am, I asked all of you to step up and answer that challenge. There are still many outstanding questions, but this was a good start.

I will have to say one personal note about the challenge, from the standpoint of a blogger. I blog, and many of those that I know that blog, do so simply as an outlet for our own personal ideas and experiences. We sometimes stumble upon a suggestion that helps others, but we tend to ask more questions than we answer. All of our situations are unique, and we all have the ability to step up and solve most of our own problems.

Blogs like this one create a quasi-community. However, most of the conversation in this community is one-sided. It helps with getting the idea out there, but it takes someone on the local level to actually do something. In order to make that happen, I suggest that we all go beyond the writings found on a blog and find someone that you can bounce your own ideas off of. That might be a peer within your firm, a peer or friend outside your firm, or even a consultant if the issues are really tough. The key is to find someone to have that conversation and will act as your sounding board.

It was fun bringing back the Elephant Post idea for an ad hoc issue like this. Hopefully, we’ll have additional reasons to do it again in the near future. Now, enough of my waxing nostalgic, here are the answers that you provided:

Brian L. Baker
Better Treatment and Help for Those Laid Off in 2009

Having been on the outside, for almost 4 years, after being laid off in 2009, I wish the profession would have done a couple of things.
  1. Better prepared librarians who were laid off, with survival skills. I was adrift, and I know many others went through the same thing.
  2. Be more open, when hiring, to older applicants who used to make a lot of money. We just want a chance to prove ourselves. We would reward that chance with loyalty, because, no matter what the salary cut would be, it is better than unemployment, minimum wage, or spending retirement money to survive.
Maybe I’m to sensitive. Who knows? 🙂

Anonymous

How will libraries need to be staffed in the future?

Be responsive to internal pressures on expenses by outsourcing all non-core services. Ensure that each member of the library team spends the majority of their time directly supporting the business of the firm. 
Al Podboy
How we can support changes in the legal industry

By using our voice. Speak up, share ideas, be fearless. Tell them (employers, bosses, vendors, educators etc.) what you need and what you think. Honesty and the best policy. Being a ʺyesʺ person does not grow anyone or anything.
Anonymous
Digital Transition

Our libraries will not be a physical place very soon and yet many of us have never figured out how to replace the visual field that would allow a user to see what is actually available on a given topic. Instead we live in vendor silos and endless link lists. We need better visual graphic skills. If we don’t figure this out, our users certainly won’t.

Rebecca C.
What skills will librarians need to have that they don’t have now?

I have two years post MLIS experience in special libraries, but no experience in law libraries, nor do I possess a J.D. Would someone like me have a shot at a future working in a law library, or is the existing barrier too difficult to breach?

Tony Chan

How we can support changes in the legal industry?
I would rephrase the question as “What can we do in our individual roles to support firm initiatives that are catered to changes in the legal industry?”
As information (I) & technology (T) professionals, we must collaborate with our firm’s COOs, CFOs, CIOs and other relevant business units to ascertain how IT affect practice efficiency and firm economics in response to market changes.
The firm as a whole must identify and ready to tackle those changes and a cultural consensus among the firm’s stakeholders is critical for its success.
So my suggestion is to:
  1. Start/restart conversations with the firm’s leadership with the goal of identifying knowledge gaps that would help bridge the firm’s business solutions.
  2. Educate yourself on technology issues by staying current on new tools/services.
  3. Keep your finger on the pulse of various practices by dropping in on meetings and organizing CLEs.
At the end of the day the dotted I and the crossed T mean little when there’s no real impact on improving current practices to meet the clients’ wants and needs.

Shirley Crow
What staffing, research, resources, services, processes, etc. will we need to have in place?
Clients are declining to pay for first and second year lawyers (the people who generally do legal research). There is an oversupply of lawyers in the marketplace, and many of them are available to put their skills to work in ways other than the traditional. I don’t think it is feasible for law firms to do without research resources. Putting those pieces together, I see the librarian of the future being a revenue-producing resource, who conducts legal research efficiently and cost-effectively, the way clients want their law firms to do their work. It is possible that law firm library managers need to prepare themselves to manage a cadre of JDs who are qualified to research efficiently as well as interpret the law. In my opinion, wise is the law firm library manager who starts *now* to promote her staff’s ability to conduct efficient, cost-effective, and *valuable* research.
Lucy Curci-Gonzalez
What staffing, research, resources, services, processes, etc. will we need to have in place?
And how to get C levels to understand the receptionist can’t do this at all!
Casanova
What staffing, research, resources, services, processes, etc. will we need to have in place?
I think what depresses me most is how little actual control we have over any of these changes. Publishers are going around us to the end user with their e-books; they dictate the licencing; in my experience, my budget gets cut, but the demand for texts / services doesn’t diminish. I guess the skill we’d best learn is juggling. In the end, you can run the perfect library, have your clientele bowing in gratitude before you, and it all goes to heck when some 5yr associate decides he/she wants your job, because you’ve made it look easy, and its an easy way to guarantee his/her longevity. Maybe the best skill we can learn is schmooze and schmooze HARD!!!
Steve Lastres
Rebooting Legal Research in a Digital Age [See PDF article]
Law Librarians need to partner with publishers and others in the
legal profession. We cannot stand alone as an isolated profession. ILTA is a
good example where IT, KM, Librarians, Records, Conflicts and lawyers all come
together. Below, is a white paper I just published based on research
underwritten by Lexis but independently conducted by a research firm. In order
to understand how we can be valuable to the practice and business of law, we
must be intimately aware of the pain points. Lack of research skills is one of
the pain points. This white papers seeks to address these pain points and
provide an opportunity for law librarians to fix the problem. Our clients will
no longer pay for training our young lawyers.

Business Research and Competitive Intelligence Skills
Anonymous
I am surprised no one mentioned the tremendous opportunities librarians have to leverage their skills toward the development of business research and competitive intelligence. Of course, this career move is interesting to those who have both an analytical bent and training that prepares them for this work.
I would like to hear more from law firm librarians who have made this transition to business research/intelligence. I know of only a few firms that have utilized their library staff well in this way. I also know some librarians who have transitioned completely from the library to research/intelligence units. However, most librarians don’t seem vert interested in playing this kind of role. Why not?

How Will Library Eduction Need to Change?
Chris Graesser

Many experienced librarians who are back in the job market are seeing jobs requirements they never had to learn on the job and for which training is rarely offered by association programs.
Proposition #1:

Change the basic library degree to a four year undergraduate BS, with graduate degrees in library management, law, medicine and others I can’t think of.

The economics don’t support requiring a librarian to get an undergrad degree in something else, then a Masters (and in many cases a JD, Masters in Biology, or other discipline) just to land a job that might start at 35K.

Besides, I think there is a lot more to learn to be an effective librarian these days, enough to fill four years. Multidisciplinary stuff like accounting, IT, communications and marketing, effective writing and presentation. Stuff that will make a librarian valuable right out of the gate.

Proposition #2:

Library schools should offer continuing education courses to librarians in the field. Much of what I see in library school curricula and in job requirements these days don’t match what many librarians have been able to learn on the job or in association programming.

Proposition #3:

Close the gap between library schools and the profession. In my experience, the twain never meet once a librarian has graduated. The schools rarely make an effort to interact with practicing librarians, at least not in the law library world. Maybe it’s different for public and academic libraries.

 

Olifant
Image [cc] ScreenPunk

[Note: The Answers are now posted]

In case you’re wondering, it was November 28, 2011. That was the last time we rolled out the Elephant Post here on 3 Geeks. However, there was a message in my email in-box this morning that made me think that it might be time to travel into the Elephant Graveyard and resurrect the platform one more time and cover something important as a Parade of Elephants. Therefore, we trot out the Elephant Post one more time.

PinHawk “Librarian News Digest” Editor, Nina Platt, threw out the following challenge to law librarian bloggers today:

I don’t know if you’ve noticed this but many of best and most prolific law library bloggers have been publishing posts that are almost exclusively about the future of law or legal publishing news rather than writing about the issues we, as law librarians, need to deal with to assure a place for us in the future. After thinking about this, I decided to make a plea to all law library bloggers to take a step back and think about what topics are most important for us to be writing about. [emphasis added]

Nina lists a number of topics that she thinks are important to the law librarian profession, but are not covered extensively enough by the bloggers within the profession. I think there are some legitimate reasons why some bloggers do not go deep into some of these subjects, but let’s see what we can do as a group and share some thoughts on some pretty important issues.

Here are the topics she lists:

  • How we can support changes in the legal industry?
  • What technology will help get us through these changes?
  • What staffing, research resources, services, processes, etc. will we need to have in place?
  • How we will need to deal with licensing, copyright, budgets, marketing, management, and other issues that face administrators within law firms?
  • What skills will librarians need to have that they don’t have now?
  • How will library education need to change?
  • How will libraries need to be staffed in the future?
  • [insert your own question to answer] 

So we will take Nina’s challenge and see if we can crowd source some of the possible answers, in the old Elephant Post style. For those of you that may not remember how it works, we offer you a few ways to post your responses. First of all, you can simply pick one of the questions and email me directly (xlambert at gmail dot com) with your response. If you’d rather just jump in and answer one of these directly, then you can edit the embedded form below, or go to the Google Docs site directly and fill out the form. I’ll pull these together throughout the week and post the results at the end of the week. If we get really good responses, we may post those up separately as a stand alone answer.

You now have a platform. The Elephant Post only works if you’re willing to share your thoughts with others. We even give you the chance to share them anonymously. Stop stalling, and start writing!! [click here to see the ongoing responses]

Image [cc] MyLifeStory

Dan: My Law Firm Right-Sizing idea received so much positive feedback, it encouraged me to think even deeper on the subject.

Jane: “Deeper” as in all the way to the bottom of the kiddie pool?

Dan: “Kiddie Pool” as in where your limited thinking keeps you Jane? So here’s my next great idea for law firms. We all want to cut costs so we can make more money. So why stop at non-lawyer staff?

Jane: “We” must mean the Gang of Benevolent Partners.So this is already shaping up to be another top idea from Dan The Great Thinker.

Dan: Now we’re paddling in the same boat! So here’s the thing. All the reports show firms have more lawyers than they need – something in the neighborhood of 10%. So firms should “let go” of 20% of the lawyers. Wallah! More profits!

Jane: So top level thinking and the use of New Math all at the same time, eh? If your firm is 10% overstaffed in the lawyer ranks, why would you fire 20%? Is this another “hire back what you need scheme?”

Dan: Jane – Your limited brain is showing … again. No, we wont be hiring them back. That’s the beauty of the whole idea. In the Good Ole Days, we thought 1900 hours of billable time was good. In my new plan, 2500 hours is going to be even better. I’ve been reading up on this profitability thing. Basically all the hours above 1900 are gravy. So why would we stop there? We want to be “above average” as a firm. Not some run-of-the-mill shop.

Jane: Ahh – yes, your brilliance is yet again emerging from the clouded haze of your bodily gasses.

Dan: Again – we’re in the same boat. It’s so wonderful to watch when you finally “get it” and embrace my New Normal Thinking.

Jane: Your New Normal, is like actually more like 19th Century Sweat Shop Normal. Let’s do some more math and see if you can keep up. To bill 2500 hours, an associate will need to work 3000 hours at a minimum. To work that much, each lawyer will need to work 11.5 hour days and not take any vacations or holidays off. Or in a slightly better sounding version, they could work 8 hours a day, seven days a week, every week.

Dan: Again … same boat. This is working out well. “Our” new firm is going to be the profit envy of BigLaw. I say “our” firm since you are starting to sound like partner material Jane.

Jane: By “partner material” you must mean someone willing to employ abusive labor practices in order to get rich.

Dan: Wow. It’s like we’re sharing the same brain Jane. I’m drafting your partner acceptance letter as soon as we’re done with this stimulating conversation.

Jane: The only stimulation you need is electroshock therapy Dan. With any luck that will loosen your bowels and take some of the pressure of your brain. Sometimes I wonder how you actually make it through the day without accidentally shooting yourself.

Dan: Now we’re back to normal – typical ignorant hussy talk. Your feeble attempt to change the subject to gun control, just killed your partnership opportunity.

Jane: Point well made.

In the “my eyes rolled so far into the back of my head, I saw my brain” department today, comes this Elberon, Iowa Public Library Director job posting.

Hat-tip to Andy Woodworth for pointing this ad out, and for clarifying that the town of Elberon has just 196 people, and that the ad should be taken into context with the size of the town. However, that doesn’t mean I can’t have a little fun at Elberon’s expense.

I would imagine that some of Elberon’s other public employment ads go as follows:

  • Public Health Clinic, Director – High School or GED required, previous experience placing band-aids on children is helpful.
  • Public Works Director – … ownership of a full set of socket wrenches and a shovel is a definite plus.
  • Public Parks Director – … must own a lawn mower and gas can (full gas is preferred.)
  • Elberon Mayor – … centrally located house with a room where a few people could meet every once in a while would make you a shoe-in.
I hope that Elberon finds someone to fill the position. Woodworth even suggests that it might be a good opportunity for an MLS student to get their start in the market. 
Image [cc] J. Gabas Esteban

Jordan Furlong takes on PPP in a recent post. In his usual fashion, he methodically explores what PPP is and makes a strong case for why it needs to be abandon as a profit metric for firms.

But, in typical Dan and Jane fashion, I feel compelled to raise my voice and retort, “Jordan, you ignorant slut.”*  Although he makes many arguments for why and how PPP might be a negative force, he misses the main point of why PPP or any other law firm profit metric exists. They exist to drive behavior. Firms need their partners to behave in profitable ways and need to set clear expectations of what those ways are. Without a clear expectation, firms can fully expect partners to perform in whatever way enhances their self interest, regardless of its impact of the economic health of the firm.

Giving Jordan credit, currently firms seem to only have the goal of improved profits (however they might be defined). I am in complete agreement that for firms to be successfully for the long haul, they need a better goal: something like being the best and most cost effective at addressing their clients’ legal needs. Focusing on client needs does lead to success. But then we still need to define success. And ‘profitable’ needs to be part of that definition.

The fact that a given PPP number is not a true mean or median is beside the point. The real point is whether profits are healthy. PPP is actually a fiction, like most profit methodologies. However, without having profit be part of ‘success’, then a firm risks going out of business and ending its ability to be the best at addressing client legal needs.

I would add I believe there is a need for a real debate over which profit methodologies do make sense for law firms. The Law of Unintended Consequences is quite strong so a poor choice can lead to bad outcomes. For traditional business this same challenge shows up in how sales people are compensated. Various sales bonus incentives drive different behavior. When deciding on which approach to use, a business has to be very thoughtful of which behaviors will motivate salespeople while still driving a ‘successful’ business. This is why sales comp packages are constantly being re-tuned. Partner comp will need to strike the same balance alongside a thoughtful profit approach.

To our good fortune, the upcoming P3 Conference on Pricing, Practice Innovation and Project Management has a session on this topic. For those interested in participating in such a dialog, I encourage you to consider attending this excellent program.

Now it’s Jordan’s turn to make a questionable reference to my parentage.


 *Jordan and I are good friends so he knows this is made in jest and with full expectation of a similar, Jane-like retort from him.

(This is part 4 of a 4 part series. You can download the entire series below.)

Just as the NCQA established standards and elements for evaluating and regulating PCMH applicants, any number of alphabet soup entities could fulfill the same type of role in legal: the ABA, the LMA, ILTA, AALL, or my personal favorite the ACC. It doesn’t much matter who is evaluating or what authority they have, just that they are evaluating consistently and publishing an updated list of CCLP qualified firms and their associated levels achieved.  We could even create a new not-for-profit organization with CCLP certification as it’s sole purpose.  (Hint, hint.)

Once one firm is certified using an open standard, how long before large clients begin asking outside counsel why they aren’t certified?  If a first level certification is relatively easy to achieve, as it is with the PCMH, then what excuse will firms have for not doing it?  Of course, a level 1 certification begs the questions, “Why are you only a Level 1?  Which elements don’t you adhere to? And why not?”  A well-defined and open set of standards and elements, if evaluated fairly, should lead to an all-out arms race for firms to achieve a top-level CCLP certification. Which, if done correctly, should correlate to a better all-around experience for clients.

The hardest part will be defining those standards and elements.  Here again, I think we can look to the PCMH as a guide.  Of course the individual elements to achieve will be wildly different for legal, but the standards will have some overlap. The 6 PCMH standards are to: 1) Enhance Access and Continuity, 2) Identify and Manage Patient Populations, 3) Plan and Manage Care, 4) Provide Self-Care Support and Community Resources, 5) Track and Coordinate Care, and 6) Measure and Improve Performance.

Adjusting for legal specific terminology, these all kind of work as is.  We would want a CCLP certified firm to meet the minimal obligations to Enhance Client Access to firm resources, Identify and Manage Client Populations (Business Intelligence), Plan and Manage Matters, Provide Self-help Legal Support and Resources, Track and Coordinate Matters, and Measure and Improve Performance over time.  There are probably better ways to phrase these standards and there may be more or different standards we should add, but even with this simple translation a proto-CCLP could begin to take form.

My intention is not to say that the legal industry should immediately adopt this concept as pioneered by the medical industry and run with it, but to suggest that maybe a more holistic approach to imagining the future of law is called for.  Here on the 3 Geeks blog we each have our areas of interest and we all attend our separate conferences to discuss the roles of technology, knowledge management, library and information management, project management, pricing, competitive intelligence, and on and on and on… But maybe we need to think a little bigger.  Rather than trying to fix the law firm model one discipline or one system at a time, maybe we should put the client in the center and rebuild the firm around them.  If we can imagine and define that type of firm, then we can give firms a path to follow and a goal to strive toward, and we can give clients a series of metrics with which to evaluate the quality of the legal services they are receiving.

For more information on the Patient Centered Medical Home concept
see the following articles and resources:
Rittenhouse DR, Shortell SM. The Patient-Centered Medical Home: Will It Stand
the Test of Health Reform? JAMA Vol. 301, No. 19 May 20, 2009 
Nutting PA, Miller
WL, et. al. “Initial Lessons From the First National Demonstration Project
on Practice Transformation to a Patient-Centered Medical Home” Annals
of Family Medicine Vol. 7, No. 3 May/June 2009
NCQA
Patient Centered Medical Home webpage 
NCQA PCMH Brochure
Download the
complete NCQA
PCMH Standards and Guidelines (2011) in PDF format for free.  Requires
registration.

According to Thomson Reuters’ Second-Quarter 2013 Results, the revenues coming in from WestlawNext has hit the 80% mark of total Westlaw revenues. For some of us, it may seem that it took a long time since the launch of WLN in early 2010 to hit this threshold, but with all the fluxuation in the legal market, and the intitial clumsy sales pitches to existing clients, it actually seems that we are well on our way to a phase out of Westlaw Classic. If I had to guess, I would say that Westlaw Classic probably will go away at the end of 2014, with exceptions made for clients under existing contracts. Of course, as many of us user see each day, that means that all of the content that hasn’t been converted to WLN will need to be completed.

The rest of the quarterly report looks pretty good for Thomson Reuters:

  • Looks like the Financial Sector is finally giving in and buying the Eikon desktop (up 30% from the first quarter of this year.)
  • Print is still declining. This quarter US Print Revenues were down a significant 7%.
  • Academics and Governments are cutting – but only a 1% decrease in Thomson Reuters’ revenues. This is surprising to me. I thought it would be more.
  • The PLC purchase hit their margins in legal (an astonishing 38.5% margin at that…), but I imagine that they can turn PLC into a cash cow.

So, for those of you that thought that the stagnant legal demand that is fueling the articles on the Death of BigLaw would also mean the Death of Big Legal Publishing, it doesn’t look like Q2 of 2013 is trending that way.

(This is part 3 of a 4 part series. You can download the entire series here.)


In previous posts I have addressed the similarities between the legal business and the medical business, and briefly described the Patient Centered Medical Home approach that the medical community has taken to address some of their issues.  In the next few posts, I would like to imagine what a similarly designed Client Centered Legal Practice might look like.

I think the four general areas that the PCMH addresses, can be copied and pasted almost wholesale into our CCLP.  The CCLP should seek to establish 1) Team-based Legal Support, 2) Active Client Involvement, 3) Evidence-based Practice Improvement, and 4) Comprehensive Legal Payment Reform.

Team-based Legal Support

The primary relationship in any legal services transaction is necessarily between the partner and the client, just as a medical transaction is primarily between a doctor and patient.  However, in both cases, there are entire teams necessary to maintain and support these relationships. Those teams must have direct and regular access to the client. In a law firm that would mean, not only the associates and staff immediately involved in a particular matter, but also fellow partners who could step in when the primary partner is not immediately available. If the client’s satisfaction and well-being is to be the central focus of a legal practice, then legal partnerships must become actual partnerships and not loosely affiliated solos sharing expenses and resources.

Active Client Involvement

In many ways, this is much easier in a legal context than it is in medicine.  Clients usually know exactly what their problem is before they contact their attorney.  Many matters are managed with regular and comprehensive input from the client, but lawyers rarely keep their clients up to date on all aspects of a matter’s progress.  In the CCLP context, active client involvement would include keeping the client “in the loop” at all times. Giving them web access to track the team progress throughout the management of the matter. Clients should be constantly aware of hours spent and tasks completed, when and by whom.  They should have education  resources available through the firm to answer basic legal questions without racking up charges for speaking to a partner.  Clients should never be surprised by the content of a bill, unless they’ve chosen to actively avoid firm resources.

Evidence-based Practice Improvement

This one is much trickier in legal than in medicine.  In medicine, there is a constant metric for progress, the health of the patient. If the patient’s health deteriorates, stop what you’re doing and try something else. If it gets better, then try what you just did on the next patient. (Of course, I’m grossly oversimplifying, but the concept is sound.)  There is not an immediately obvious equivalent metric to patient health in a legal context.  In fact, there are very few metrics in the law firm. And those that exist are virtually meaningless. (Profits per Equity Partner, tell’s you what exactly about a firm.)  This is what we must change.  An old adage says, “You can’t improve what you don’t measure.”  We need to begin to measure efficiency, productivity, and profitability at the task, matter, and firm levels, so that we can begin to adjust our practices to improve all three.  Until we accurately measure these things, any changes we make are just guesses as to what might be better.

Comprehensive Legal Payment Reform

Notice, I didn’t say billing reform. This is not about adopting alternative fee structures, or non-hourly billing schemes, this is about aligning the financial incentives for the attorneys and the firm to the needs of the client.  In medicine that means ending the practice of fee for service, where doctors get paid based on the total number of procedures they perform instead of for maintaining the health of their patients.  In legal, we need a similar realignment from meeting hourly targets to maintaining client satisfaction.  How we should do that is a huge topic of conversation, beyond what can possibly be summarized in this paragraph. This change will be a difficult adjustment for attorneys and firms, but is absolutely key to putting the client at the center of legal services.
In the final installment, I’ll look at some specific elements of the PCMH and imagine how the regulatory aspect of a CCLP might work.
Atlanta - Downtown: Georgia State Capitol - House Chamber
Image [cc] Wally Gobetz

Well, it didn’t take very long for Carl Malamud to respond [PDF] to the cease and desist letter from Georgia Code Revision Commission Chairman, Joshua McKoon. I applaud Malamud’s resolve and willingness to call the State of Georgia out on its request, and its claim to copyright on the official state laws.

Malamud immediately comes back on the State’s copyright claim by stating “It is a long-held tenet of American law that there is no copyright in the law.” He goes on to site court decisions backing his argument, and also points out that the “unannotated” version that the State provides online for free is a poor substitute for the official law and that to use the unannotated would place the user at a higher risk of peril. The money quote is:

No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law.

The State of Oregon held similar claim to their official state code, and after conducting a hearing where they “listened to citizens and to their own legislative counsel, kindly invited [Public.Resources.Org] to speak, and at the end of the day unanimously waived any assertion of copyright in the Oregon Revised Statutes.”

Malamud states that this type of dissemination of the law should be something that states should encourage and support, not send out threats and prosecute.

I have to say that I agree wholeheartedly. Good luck Carl!

Here is a reprint of Malamud’s letter. The PDF version is online at law.resources.org.

Hon. Joshua McKoon,
Chairman Georgia Code Revision Commission
319-A Coverdell Legislative Office Building
Atlanta, Georgia 30334

Hon. David Ralston
Speaker of the House
House of Representatives of Georgia
Atlanta, Georgia 30334

Hon. David Shafer
President Pro Tempore
Georgia State Senate
321 State Capitol
Atlanta, GA 30334

Dear Senator McKoon, Speaker Ralston, and President Pro Tempore Shafer:

Public.Resource.Org is in receipt of the communication of July 25, 2013 from Senator McKoon concerning your notice of purported copyright infringement. Your notice claims copyright infringement for the publication of the Official Code of Georgia Annotated. Your letter claims “all copyrightable aspects of the Official Code of Georgia Annotated are copyrighted under United States copyright law” and disclaims any copyright “in the statutory text itself or in the number of the Code sections.”

We respectfully decline to remove the Official Code of Georgia Annotated and respectfully reject the distinction between “the statutory text itself” and additional materials, as both are integral part and parcel of the only Official Code of Georgia Annotated, such material constituting the official law as published by the State.

It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.

This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court specifically extended that principle to state law, such as the Official Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”

This principle has become embedded clearly throughout our country. The Court of Appeals for the Sixth Circuit has stated that “any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.” Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.). These strong precedents are reflected in the official policy statement of the U.S. Copyright Office: “Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.” Compendium II: Copyright Office Practices § 206.01 (1984)

The principle that there is no copyright in the law, and that no license is therefore needed, has been fundamental to the evolution of our legal system. West Law could never have built that magnificent edifice of American jurisprudence, the Federal Reporter, if each court had imposed restrictions on promulgation. If citizens are required to obtain a permission before repeating the law, does that not strike at the very heart of our rights of free speech under the First Amendment? If ignorance of the law is no excuse, how can we restrict dissemination of those laws?

The distinction between “the statutory text itself” and additional materials perhaps would have some bearing if the publication in question were the independent commercial endeavor of a publication firm. If such a firm were to copy the state statutes and compile that information with additional analyses and summaries and were to do so as a strictly commercial endeavor, we understand and respect that this material would be their private property.

However, the publication in question is not by some independent endeavor, it is by the Official Georgia Code Revision Commission and the document is clearly labeled as the official Official Code of Georgia Annotated. Your hired sub-contractor states this clearly in their marketing materials:

“The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme.” [Emphasis in the Original]

The Official Code of Georgia Annotated is a publication of the State and it is the definitive statement by the State of the law. Any lawyer would ignore this publication and any of its components at his or her peril. Any citizen wishing to read the Official Official Code of Georgia Annotated would have trouble distinguishing between the “statutory text itself” and those materials outside the box. No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law.

Your letter also notes that “the unannotated Georgia Code…is available to the public at no charge at www.legis.ga.gov.” In addition to numerous technical and usability deficiencies, this site is subject to two different terms of use. The first, which must be accepted before entering the site, stresses that only “the latest print version” of the Code is official and authoritative. The second set of terms has 8 parts and 35 subparts and permits only “insubstantial” uses and even prohibits use of the Code in “newsletters” and “articles.” As you can see, when copyright prohibits citizens from speaking the law of the land, substantial concerns are raised under the U.S. and Georgia Constitutions.

A similar situation occurred in the great state of Oregon when we received a Cease and Desist notice on April 7, 2008 for publishing online the Oregon Revised Statutes. As with the present situation, lawyers for that state demanded licenses as a condition to publication and attempted to make a distinction between the law and the additional organization of that material by the Legislative Counsel of Oregon.

I am pleased to tell you that the State of Oregon decided that this was an issue that should be decided by the people of Oregon and their elected officials. The Speaker of the House and the Senate President called a hearing of the Legislative Counsel Committee, listened to citizens and to their own legislative counsel, kindly invited us to speak, and at the end of the day unanimously waived any assertion of copyright in the Oregon Revised Statutes.

Not only was copyright waived, something very special happened. With the restrictions on use of the Oregon Revised Statutes lifted, a law student at the Lewis & Clark Law School was able to take this material and develop a vastly better version of the Oregon Revised Statutes for the people of his state to use. Restricting use of the codes restricts innovation, making it harder for citizens and lawyers to know and understand the law. Restrictions on the Official Code of Georgia Annotated hurts democracy and the citizens of Georgia by making their laws less accessible.

In Oregon, the assertion of copyright dated back to the 1940s and the state had carried that policy forward. When the people of Oregon looked at the issue in the light of our modern era, the decision was very clear. Is it not time, in light of developments such as the Internet, to revisit those restrictions?

Our publication of the Official Code of Georgia Annotated should be encouraged, not threatened. Our publication of the Official Code of Georgia Annotated is unimpeachable act, not one that should be prosecuted. I would be more than happy to come to Georgia to discuss the matter with you, and would strongly encourage you to discuss the issue with the people of Georgia.

Sincerely yours,

Carl Malamud

Public.Resource.Org

 

Monica Bay of Law Technology News is reporting this morning that Bloomberg Law is rebranding itself as Bloomberg BNA.  This acknowledges what those us in the legal industry have known for quite awhile:

  1. Bloomberg doesn’t have the same name recognition as a provider of legal information that BNA does
  2. BNA’s name is respected for the quality of their content, and
  3. The Bloomberg approach did not seem to be getting much traction in the legal marketplace. 

Bloomberg seems to come to terms with this themselves with their acknowledgement that this change was client driven and their announcement that the Legal business would be consolidated in the BNA HQ in Arlington.  As Professor Harold Hill once said “You’ve got to know the territory.”  BNA certainly knows the territory.