The Open Law project at the Berkman Center for Internet and Society at Harvard Law School releases its case arguments under a copyleft license, in order to encourage public suggestions for improvement.
Berkman lawyers specialise in cyberlaw--hacking, copyright, encryption and so on--and the centre has strong ties with the EFF and the open source software community. In 1998 faculty member Lawrence Lessig, now at Stanford Law School, was asked by online publisher Eldritch Press to mount a legal challenge to US copyright law. Eldritch takes books whose copyright has expired and publishes them on the Web, but new legislation to extend copyright from 50 to 70 years after the author's death was cutting off its supply of new material. Lessig invited law students at Harvard and elsewhere to help craft legal arguments challenging the new law on an online forum, which evolved into Open Law.
Normal law firms write arguments the way commercial software companies write code. Lawyers discuss a case behind closed doors, and although their final product is released in court, the discussions or "source code" that produced it remain secret. In contrast, Open Law crafts its arguments in public and releases them under a copyleft. "We deliberately used free software as a model," says Wendy Selzer, who took over Open Law when Lessig moved to Stanford. Around 50 legal scholars now work on Eldritch's case, and Open Law has taken other cases, too.
"The gains are much the same as for software," Selzer says. "Hundreds of people scrutinise the 'code' for bugs, and make suggestions how to fix it. And people will take underdeveloped parts of the argument, work on them, then patch them in." Armed with arguments crafted in this way, OpenLaw has taken Eldritch's case--deemed unwinnable at the outset--right through the system and is now seeking a hearing in the Supreme Court.
There are drawbacks, though. The arguments are in the public domain right from the start, so OpenLaw can't spring a surprise in court. For the same reason, it can't take on cases where confidentiality is important. But where there's a strong public interest element, open sourcing has big advantages. Citizens' rights groups, for example, have taken parts of Open Law's legal arguments and used them elsewhere. "People use them on letters to Congress, or put them on flyers," Selzer says.