OpenSource.law

This article will explore some of the author's insights arising from his participation in the iCommons Canada project during the time period SEP 2003-2004, inclusive. The project's goal is the development of a universal copyright licence (by way of domestic synchronization). The Creative Commons suite of copyright licences are designed for use by geographically-disparate digital creators wishing to contribute their (non-software) works to the online public commons. The project was carried out by lawyers, students and other interested persons. Canada's recent experience porting the Creative Commons (cc) licence into a Canadian (cc-ca) version illuminated the, hereto untapped, value of commons-based peer-production with respect to the development of text-based legal products such as licences, documents, statutes, or even caselaw itself.

Cet article explore quelques réflexions qui ont émergé de la participation de l'auteur dans le projet I commons Canada pendant la période 2003-2004. Le but du projet est le développement d'un contrat de copyright universel (par l'intermédiaire d'une synchronisation nationale ou locale). Tous les contrats Creative Commons sont conçus pour être utilisés par des créateurs numériques venant de lieux géographiques disparates désirant proposer leur oeuvre dans le domaine public en ligne. Le projet a été porté par les juristes, étudiants ou autres personnes intéressées. L'expérience récente de transposition des contrats Creative Commons américains dans les Creative Commons canadiens illustre la valeur de la production partagée, fondée sur les Commons, au regard du développement des textes juridiques comme les contrats, les documents, les statuts et même la jurisprudence elle-même.

The collaborative nature of legal peer-production brings to mind the practices of the "open source", or "free", software community who have been very successful in applying open source methodology to the production, and maintenance, of computer software. The term "open source" is broadly understood to refer to a community-centric framework which advocates sharing of information and the collaborative development of information-based products of all mediums and genres. Based on empirical evidence with respect to text-based open source products, eg. Creative Commons Canada's success with drafting and reviewing the cc-ca licence, there is every reason to believe that this methodology will map well onto the practice of law.

In exploring this thesis, technologies that enable commons-based peer production of text-based legal products will be briefly introduced. Both the computer applications used to create the products and the communication tools used to share and transform them will be investigated. The application of these techniques and technologies culminate in the author's proposed practice of opensource.law . A website aimed at supplying the resources facilitate the understanding of opensource.law and the infrastructure necessary for supporting its practice, are currently under development at time of printing. (1)

This work is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Canada licence.

The basic idea behind open source software is very simple. When programmers can read, redistribute, and modify the source code for a piece of software, the software evolves. People improve it; people adapt it; people fix bugs. Open source development is ideally suited to the infrastructure of the internet and is becoming increasingly ubiquitous. It has the potential to move at speeds that put proprietary software development to shame. There are at least three types of open source software: server software, desktop applications and web applications.

What is the difference between open source software and proprietary software ? Open source software is software where the source code is freely-available . Users are free to make improvements and redistribute the code as long as they abide by the terms and conditions of the governing licence. The most famous piece of open source software is the operating system GNU/Linux. Conversely, the source code for proprietary software is generally kept secret. A user purchases only the compiled version of proprietary software and has no choice but to use the software as is .

What is the difference between source code and compiled code ? Source code is commonly used to refer to the high-level programming language that human programmers use to build computer programs, more broadly, it is the information which constitutes the work provided in modifiable format. Anyone educated in the particular (programming) language in which the code is written can understand and edit the source code. Compiled code is source code that has been compiled, or translated, into a language that computers can understand (compiled code is also called binary code ). No human can understand or edit compiled code. Even specialized programs, designed to reverse-compile, cannot reproduce perfect source code from compiled code. Source code is open while compiled code is closed .

For a breakdown of the different classes of information, see Appendix A: Open Information Schematic

Much of today's open source software can be traced back to the 1960s when a community of programmers developed amongst several US computer science laboratories (Stanford, Berkeley, Carnegie Mellon, and the Michigan Institute of Technology). Software source code was passed from one person to another and frequently modified. The resulting derivative work would then be passed along to the community. This was the "hacker" culture: a belief that information sharing is not only good, but also an ethical responsibility. Setting the stage for open source software development was the fact that the contemporary commercial environment was much more conducive to these kinds of practices. The large-scale commercial computers being sold at that time came with software that had few of the restrictions that are so common in modern proprietary software; software came with its source code and the source code could be shared and modified.

In the 1970s, computers started becoming more affordable and, therefore, more accessible to businesses and individuals. Companies, such as IBM, quickly realized that it could also make money on the software itself and started unbundling it from the hardware. Software began to be sold under proprietary licences which explicitly prohibited re-distribution and modification. Further insurance against the practice of sharing was that software's source code was no longer included alongside the compiled code. This shift in the industry paradigm inevitably reverberated back to the computer science academic community itself. By the 1980s, the hacker community started to break apart; the sale of Scribe, a text-formatting program written by Brian Reed at Carnegie Mellon University and the formation of two companies for the sale of MIT's Lisp system were two important milestones in this disintegration. However, there was still hope for the open source movement... his name was Richard Stallman .

Richard Stallman was a graduate student at the MIT's Artificial Intelligence laboratory. He worked primarily on a DEC (Digtal Equipment Corporation) PDP-10 computer for which he and his colleagues had developed an enormous array of software tools. The DEC PDP-10 was eventually discontinued and none of the operating systems available for the replacement computers were free. Witnessing the disappearing hacker ethic and the move towards proprietary software, Stallman decided to create software aimed at reviving the hacker community: the software would have accessible source code, it would be modifiable, shareable and free. The FSF's goal was, simply put, to make it so that no one would ever have to pay for software.

In Copyleft: Pragmatic Idealism , Stallman describes the motivation behind free software :

My work on free software is motivated by an idealistic goal: spreading freedom and cooperation. I want to encourage free software to spread, replacing proprietary software that forbids cooperation, and thus make our society better. (2)

What does society need? It needs information that is truly available to its citizens -- for example, programs that people can read, fix, adapt, and improve, not just operate. But what software owners typically deliver is a black box that we can't study or change. Society also needs freedom. When a program has an owner, the users lose freedom to control part of their own lives. And above all society needs to encourage the spirit of voluntary cooperation in its citizens. When software owners tell us that helping our neighbours in a natural way is piracy , they pollute our society's civic spirit. (3)

Stallman realized that in order to get people involved, he would have to develop something that is both useful and non-trivial -- he decided to write code for a "free" operating system. A computer operating system is a complex piece of software: it provides all the essential functions required for a modern computer to run other software. UNIX is an operating system developed at the AT\&T Bell Labs in 1970 and based on previous collaborations with MIT and General Electric. In 1979, the seventh edition of UNIX was released. This version was the last to be widely released under the UNIX label, though it was eventually developed into separate versions, or flavours, of UNIX by various groups, such as the Berkley Software Distribution (BSD) at the University of California.

Because UNIX was proven and its use widespread, Stallman decided to base his operating system on it. In 1983, Stallman started work on his operating system named Gnu's Not Unix (GNU). In order to make certain that GNU would always be distributed in harmony with his free software philosophy, Stallman created the GNU General Public License (GPL) which permitted users to view, change, and add to the GNU source code, provided that they made their changes available under the same license as the original code. He then formed the Free Software Foundation (FSF) in 1985 to oversee the GNU project , along with other projects made available under the GPL. However, by 1990, it was clear that the project was experiencing, what seemed to be, insurmountable difficulties creating a kernel for their operating system.

Meanwhile, Linus Torvalds , a student at the University of Helsinki had been working on developing an operating system kernel as a hobby. The contemporary open source movement was born when Linus' kernel was modified to be compatible with the existing GNU project components. Soon after the release of the initial version of Torvald's kernel in 1991, thousands of programmers began contributing to the evolution of the aptly-named "Linux" kernel so that it could be used with the GNU project, alongside other pieces of free software (BSD components and MIT's X-Windows, in particular), to produce an operating system known as GNU/Linux (popularly referred to as Linux ). In the shadow of Linux's widespread popularity, Stallman's masterpiece, namely the GPL, and the proliferation of open source software which it spawned, is sorely neglected.

How does free software differ from open source ? The difference between these two camps is, for the most part, ideological. The collaborative methodology used for software development is the same for both free and open source software. Free software development, however, has a moral foundation, in that it is motivated by an altruistic desire to improve society at large; from the FSF's perspective, the societal benefit from having access to open source software is valued above individual commercial gain.

The term FLOSS was popularized in a June 2001 letter to the European Commission; FLOSS was created by combining the competing terms free and open source software, as advocated by the FSF and Open Source Initiative (OSI), respectively. Libre is used to connote that "free as in freedom" is the intended understanding, rather than "free of charge", ie. gratis .

In 1992, hacker anthropologist, Eric Raymond (a friend of Richard Stallman) started writing a landmark paper entitled The Cathedral and the Bazaar . (4) Raymond's paper follows the evolution of GNU/ Linux and puts forth the proposition that:

The Cathedral and the Bazaar caught the attention of Netscape, to whom it was apparent by 1997 that the company was falling behind in the browser-wars. If Netscape could get the attention of the hacker community, it reasoned, it would not only increase its product visibility, but may also harness the power of volunteer developers from around the world.

The announcement that Netscape would release the source code for its web-browser, Navigator, under the project name Mozilla , came late in January 1998. Still, worries existed about adopting Stallman's intimidating, and somewhat radical, free software philosophy; Netscape needed to modify the ideology surrounding the term FLOSS to be more attractive to the business world. On February 3rd, 1998 at a Palo Alto, California brainstorming session, attended by Raymond, the term open source was coined; one week later, an accompanying website named the Open Source Initiative was launched. (5) This term was quickly adapted in technical circles and soon preferred by the mainstream media.

How does open source software development work? In seeking to gain an appreciation of the open source way we would be well-served to remember the candid confession of Sir Isaac Newton (1642-1727) who is famously quoted as saying:

Open source software development embraces this principle. The open source way is a community-centric methodology, which encourages the free flow of knowledge and insight between its members. The open source model does away with organizations and central control, replacing them with open networks of individuals. Every individual can build on the work that has been done by others in the network; no time is spent reinventing the wheel. Indeed, the open source way has become a venerable philosophy spreading far beyond the realm of software development.

Figure 1: The Open Source Development Model : Source code is available to public. The public is free to make improvements

Figure 2: The Closed Development Model : The Microsoft source code is closely guarded. The user only receives a compiled version of the software. Modification is impossible.

In recent years, the linking of individuals has been greatly enhanced by the internet's high-speed data capacity and omnipresence. With efficient networking infrastructure in place, the collaborative open source model has limitless potential. In fact, over the last decade open source software licences have been embraced internationally and are already in force for hundreds of thousands of computer programs. (6)

The open source definition is derived from the Debian Free Software Guidelines . (7) Bruce Perens composed the original draft guidelines which were later refined based on the suggestions from Debian GNU/Linux distribution developers in an email discussion group during June 1997. These guidelines were revised somewhat, and Debian-specific references removed, by Raymond and the OSI to create the (OSI) open source definition in February 1998. This definition would become the standard by which all software would be judged to be open source ; ie. in order to be certified as open source software , by the OSI, the software must carry an OSI-compliant copyright licence .

Through its vigilant policing of the open source definition the OSI acts as the gatekeeper, or stamp of approval, for open source software. Presently, there are upwards of 40 different software copyright licences which meet the definition's strict requirements. The ten criteria which must be met by to be considered open source software are described on the OSI website. (8)

To reiterate, the term open source is properly used only when referring to software released under a copyright licence that conforms to the principles enumerated in the OSI's open source definition or the FSF's four freedoms . (9) Note that the OSI and FSF definitions are complementary and non-exclusionary -- though elucidated in different language, they are the same. In a nutshell, to be officially considered open source , the licence that the work is offered under must allow for, among other things:

Some open source licences, most famously the GPL, go further by mandating reciprocal licensing ; that is, where a work's copyright licence requires that users of the work continue to make it (and any derivatives in which it forms whole or part) freely-available to others under the terms of the parent licence. A licence which contains this additional restriction is referred to as a copyleft licence. In Creative Commons jargon this is referred to as ShareAlike . Mandating sharing-alike in a software licence is advantageous to the open source software community because it ensures that no one can build upon the community's code base without contributing their own modifications back to the public commons.

Alternatively, non-copyleft licences are non-reciprocal and do not carry such a requirement. For example, the Berkeley Software Distribution (BSD) licence allows licensees to create private derived works, ie. commercial software with unpublished source code, and does not require that changes to the public version be published in any form. This is how non-copylefted works, such as the BSD TCP/IP network stack, have found themselves incorporated into proprietary product offerings. However, non-copyleft is an important option for creators who wish to make their works freely-available but without any restrictions on the licensing of derivative works.

Both copyleft and non-copyleft are open source licences . Open source licences make use of the copyright(s) granted to computer programs in order to secure the licences' terms and conditions. Again, anyone can copy, distribute, and modify open source software as long as they abide by the licence's terms and conditions. Anyone found to be violating the licence may be subject to legal sanctions under applicable copyright law.

Figure 3: Copyleft licensing : an open source licence (like the GPL) becomes attached to every program that incorporates open source code or code derived from open source code. Pink programs have come under the jurisdiction of the GPL.

In between the BSD and the GPL, in terms of its level of restrictiveness, is the Mozilla Public licence (MPL). Changes to source code licensed under the MPL must be made freely-available on the internet. The MPL, unlike the GPL, is non-viral: additions to (as opposed to modifications of) the MPL-licensed source code which create a larger work may be licensed according to the whim of the creator and need not be published at all. The MPL does not require downstream creators to ShareAlike; however, it is more restrictive than the BSD licence.

A popular, and pragmatic, question is: Can you still sell a work that has been made available under an open source licence? The short answer is yes; an open source developer can commercially licence software already available under an open source licence. This is because OSI-compliance dictates that commercial applications of the source code cannot be prohibited -- such a restriction disqualifies a licence from being properly called open source . However, the continuing requirement to make the source code freely-available may frustrate the opportunity for commercial remuneration. Why purchase software when you can download the source code for free? Capitalizing from open source products necessitates the provision of value-added services rather than just product distribution (see Open Source Business Models below).

Are open sources licences a waiver of the copyright holder's rights in the work? No, there is no waiver of rights. The open source licence is a unilateral, though non-revocable, licence which conditionally grants permission to exercise certain copyrights. Only an explicit dedication of a work to the public domain has the effect of waiving a copyright holder's rights prior to the expiration of the term of copyright.

Are open source licences legally valid? At time of writing, there has been no direct legal challenge to open source licences in Canada or in the United States. However, open source licences are conceptually similar to clickwrap and shrinkwrap licences, ie. unilateral contracts, which have been found to be legally enforceable by North American courts. The licence's terms and conditions may be unilaterally accepted or rejected by a potential licensee. There are several ways in which open source licences are presented to, and accepted, by a licensee.

Clickwrap licences utilize "pop-up" boxes. Whenever an individual attempts to install and/or run the related software, a pop-up box opens up on the computer screen with instructions and the text of the licence. When the individual clicks their cursor on the I Agree button, they have signaled their acceptance of the licence.

Shrinkwrap licences are printed on the outside of software boxes and, obstensibly, read through the transparent plastic shrinkwrap packaging. By proceeding to open the shrinkwrap and use the software product, a licensee is considered to have communicated their acceptance of the licence terms and conditions.

Open source licences can be communicated to an individual in a number of additional ways ; for example: in a README document distributed alongside the source code, in the source code itself, etcetera. An individual indicates acceptance when they use, modify or redistribute the software.

As open source increases in popularity, innovative business models are following suit. Some of these business models are commercial, with software development companies using open source as a way to lower overall project costs. Other business models are non-profit, eg. civil society organizations banding together to create software applications that will benefit the whole community. (10)

Freely-available source code allows a worldwide community of developers to participate in peer-production , peer-review , and peer-distribution . A program can be improved and redistributed in perpetuity, benefiting the entire community. As the open source model of openness and collaboration expands, the quality of open source products also improves.

The issue of overall quality aside, open source software has four inherent advantages over proprietary software. First, open source software is considerably less expensive than proprietary alternatives. Second, access to underlying source code means users can detect and fix programming bugs -- this transparency also helps to alleviate security concerns about the inclusion of viruses and/or backdoors. Third, open source software can be tailored to users' specific needs, and upgrades implemented at a pace chosen by the user, not the vendor. Fourth, open source allows users to be flexible in their choice of vendors; for example, if users are not happy with the service they receive from Red Hat they can choose another Linux vendor. This prevents users from becoming overly dependent on their technology or support contracts. (11)

Nevertheless, there are still disadvantages to employing open source products. Of specific concern is the potential liability for intellectual property infringement. The typical open source project contains contributions from many people. It is almost impossible to audit the entire code base for violations of previous licence conditions. This creates many opportunities for contributors to introduce infringing code. Thus this risk in the development process is largely borne by licensees. Contributors do not vouch for the integrity of the code they contribute to the project; in fact, the opposite is true -- the standard open source licence is designed to be very protective of the contributor. The typical licence agreement does not include any intellectual property representations, warranties or indemnities in favour of the licensee; instead, it contains a broad disclaimer of all warranties with respect to representations of fitness for use or merchantability.

In sum, though there is no guarantee of quality or fitness open source software is, for the most part, surprisingly robust. Some open source software projects, such as the Linux initiative, have one or more stewards who monitor code quality and track bugs. Other initiatives, however, are the product of hobbyists and may not enjoy the same code quality and rigorous testing protocol. Without contractual commitments of quality or fitness, the licensee must ultimately accept the risk that the software contains fatal errors, viruses or other problems that may have downstream financial consequences. (12) Nevertheless, these risks must be approached as business decisions and should not be unduly exaggerated.

The iCommons project provides participating countries with their own page on the Creative Commons website through which the draft licence and the discussion surrounding it can be centrally-accessed. (13) Visitors to a country's iCommons page can download the draft licence, read the email discussion threads, subscribe to the email discussion and/or post their comments to the discussion email list.

In retrospect, we were, in fact, recreating the infrastructure and behaviour commonly found in online open source Concurrent Versions Systems (CVS) such as SourceForge; (14) that is, we were carrying out the same processes, and conforming to the same protocols, as the open source software community. So why reinvent the wheel? The computer science industry has invested formidable effort and resources into information and communication technologies. Shouldn't legal practitioners stand on the shoulders of giants?

It is sole purpose of this essay to propose that the open source methodology and other complementary techniques, hereto unique to the computer science industry, would have similar value if applied to the text-based products developed by the legal profession. In fact, the nature of text-based products is ideally suited to the open source way ; rather than being capable of being compiled, text-based products inherently reveal their source code. Let us consider the possibilities.

There are several core computer science techniques which immediately come to mind as having particular applicability to the commons-based peer-production of text products.

A peer-to-peer (P2P) computer network is a decentralized file-sharing network in which every computer is both a client and a server -- enabling computers to access each other directly without the aid of an intermediary, or central, server. Such networks are self-generating. There is no central repository of information. Instead, the networks cluster around nodes, or supernodes, which serve as broadcasters for search requests. Like a game of broken telephone, network neighbours pass along the information necessary to locate the peer desired. Once a P2P connection has been established, files can be transferred directly between the peers.

Lawyers and/or the general public are encouraged to share their law-related stores over a P2P network similarly to the recent surge in the P2P-sharing of audio and video files. (15) Based solely on the high value of legal information, a network of law-related stores could reasonably be expected to proliferate both exponentially and internationally. A dedicated P2P network for legal information and forms and other secondary data is the logical complement of the internationally syndicated Legal Information Institute, which bills itself as a "centralized and harmonized portal for primary legal materials". (16) Only a real-time P2P network can keep pace with constantly evolving content.

There are several obstacles which must be overcome for P2P file-sharing of law-related materials to be successful. The real value of a well P2P network is the easy access to, and beneficial use of the files, contained within; file-sharing networks are only as powerful as their weakest link. Much of the information freely available is incorrectly or poorly labeled. Titles seldom meaningfully convey the relevant subject matter. Document types are not necessarily ascertainable from file format designations. Country-specific information is rarely acknowledged as such. One way to address these technical barriers is through the prescription of a standardized file-naming protocol for naming law-related files.

A filename is a short text string that describes a file's contents. Filenames should be consistent for all media. The creation of a coherent file-naming protocol both within a workplace and across a particular industry is critical to the mining and application of information. Without it, knowledge identification and management is significantly impeded.

When first approaching standardized file-naming, it is helpful to become familiarized with the entrenched challenges. A collection of information, if striving to be accurate, is continually in flux. A faithful file-naming protocol must allow for version control. Active and archived files should not conflict through overlapping or be altered without note. Unique filenames must be independent of their locations within a network and scalable to allow for both numerous files and additional ingredients.

Draft protocol: title(creator).subject.subtopic.type.jurisdiction.date(version).format

The proffered protocol suggests seven file-fields to be used when creating a filename and seeks to incorporate industry standard reference formats where possible, eg. ISO3006 country-code designations. The applicable file-naming policy should be accessible and digestible by the layperson user. A file-naming protocol should be built to persevere over time; but, most importantly, any and all changes in protocol must be immediately implemented in all files within the network.

To sum, lawyers would be well counseled to discontinue contributing to poorly organized stores of legal information and forms. Note also that when sharing legal products such as template agreements or memos, it is imperative that practitioners remember to remove confidential information and personal data. The distribution of solicitor-client privileged information is both unethical and against the law.

The listserv is simply an email discussion list where postings to a central address are served to a group of subscribers. Listserv subscribers can choose to receive the postings as they happen or a digest of postings for a set period of time, eg. daily, weekly, etc. In the open source community revisions are often vigorously debated over a project listserv. These discussion threads can be exceedingly helpful to project latecomers and anthropologists by providing a historical archive of the project's evolution. In some cases, revisions are controlled through consensus reached over a listserv; where this is not so, other forms of revision control are needed.

What is revision control ? As used in software development, a revision control system is a tool for recording, indexing and manipulating the changes (revisions) made to the source code. (17) When more than one person is working on a file, care must be taken to ensure that they do not commit different changes to the file at the same time. In the past this was accomplished by "checking out" a copy of the file, much like you would a book at the library -- no one can borrow the file until you have returned the copy.

But what if you want people to be able to work on the same file at once? One way to do this is for people to save their copy as a new file; however, this practices raising the dreaded specter of forking or branching, ie. where a single file splits into two versions, nether of which contain the entire body of source code. This can be countered by providing a mechanism for synonymous contributions to be merged into a single work.

A modern revision control system is one where the contributor can ask a central control system to commit the modification to the main file itself, thereby avoiding any possible forking. While there are different prescriptions for the revision commit process, a modern solution comes in the form of Wiki technology.

In the case of Wiki technology, the medium is, in fact, the message. (18) A Wiki or wiki (pronounced "wicky") is a website (or other hypertext document collection) that allows any user to add content, as on an internet forum, but also allows that content to be edited by any other user. Revisions are uploaded in real-time and, so, can be seen immediately after their commitment to the file. Wiki wiki is the Hawaiian term for quick or super-fast . (19)

Wikimedia is an open source software package created from the source code of the world's largest encyclopedia, and most active wiki, Wikipedia . (20) Besides basic wiki functionality, Wikimedia offers an accompanying discussion list and revision history with each document project. Among the most powerful of wiki features is the ability to reset the document to a past version, eg. where undesirable modifications have been committed. Community moderation and consensus is relied on to reach the tipping point where a revision in incorporated into the main document. Think of the wiki as a real-time web-based tug-of-war with text.

Another application which could potentially play a role similar to, or in cooperation with, the wiki is TeX (Tau Epsilon Chi) -- pronounced "tech". Donald Knuth created TeX, the basis for LaTeX in the late 1970s out of his dissatisfaction with existing computer typesetting programs. (21) TeX is a computer program specifically designed for typesetting text and mathematical formulae. LaTeX is a macro package that enables authors to typeset and print their work at the highest typographical quality, using a predefined, command-driven, professional layout. LaTeX was originally written by Leslie Lamport and uses the TeX formatter as its typesetting engine. LaTeX is pronounced "lay-tech".

The subtle value of LaTeX is realized by the fact that it enables documents to be drafted in much the same manner as computer software script. The document is written in a text-editor using ASCII text and then rendered for viewing by performing the TeX function on it. A typeset version is then created according to the commands contained within, similarly to how a computer program's source code would be compiled prior to its execution. Because LaTeX works by specifying the structure and formatting of plain text, all the information necessary to render the document travels with it -- this gives the document the additional advantage of being both open source and device independent. A code-level appreciation of formatting encourages authors to write well-structured texts. (22)

At the risk of reiterating the statement made at the beginning of this paper, the basic idea behind applying the open source way to law is very simple. When lawyers can read, redistribute, and modify the source code for a particular legal product, the product evolves. Lawyers improve it; lawyers adapt it; lawyers fix bugs.

Based on a culmination of the techniques and technologies described above, the opensource.law project attempts to sketch out an internet-based platform, and protocol, for the development of legal products. (23) Although the opensource.law project is intended for use by law professionals, non-lawyers will be able to freely-access and peruse the legal products contained within (though they will not have the security clearance required to modify them).

There are several benefits of applying the open source way to the practice of law which immediately come to mind, they include:

Creates opportunities for lawyers to share their work and ideas without having to get direct permission.

• Open source products are built on open standards and are, for the most part, device independent.

• Development expenses, whether in terms of time or resources, are distributed among the group of participating practitioners.

• Allows law professionals and students to stay current with industry standards and trends without paying trade publication subscription fees.

• Peer-review vets inaccuracies and mistaken assumptions -- community debugging results in greater security and less individual responsibility.

• Offers the opportunity to provide higher levels of service, at a reduced cost, to clients through the customization of commons-based legal products.

Providing further motivation is the fact that there is much legal content that cannot be bought from commercial databases. Open source projects also attract enthusiastic developers who are more likely to make a meaningful contribution. And last, but certainly not least, using open source legal products makes you part of a cooperative community and helps perpetuate open source values, such as freely-available information.

Borrowing, in part, on computer science terminology, there are several different roles for lawyers to take in the opensource.law project, including: administrator, moderator, project manager, counsel, programmer, tester/debugger, compiler, translator/porter, and support technician. Products developed using the opensource.law platform, and all contributions therein, will be required to be licensed under the Creative Commons Attribution-ShareAlike 2.0 licence (24) in order to comply with the principles enumerated in the OSI's open source definition .

However, the migration from the proprietary to open source business model will not come without costs. The costs of using open source products, whether legal, software or otherwise, still must be borne by the user. Nevertheless, as the open source legal community expands and matures operating costs will be reduced while product quality may be expected to continually increase. The consideration of the short-term costs versus long-term gains of adopting this new mode of production must be carefully evaluated like any other business decision. It is important to note that this analysis should be performed using a total cost of ownership or full accounting method. (25)

The practice of opensource.law will likely be received as counter-intuitive by the legal profession, who have traditionally strictly controlled and traded every last bit of marketable legal information. This author is the first to admit that the mind-shift required to facilitate the sharing of legal information and forms is nothing less than stupefying. Like any other movement, reeducation of the stakeholder interest groups is the first step to acceptance and broad change. The value of sharing must be demonstrated and documented -- to this end, the opensource.law project hopes to act as a proof of concept.

At the end of the day, however, the incentive for practicing lawyers to participate in a law-related open-source network is commensurate with the "utility of the available content and the ease with which desired content can be found". (26) A challenge in applying the open source way to the practice of law is identifying quality content within a network. Although file-naming can be formally structured, the traditional method of judging content by the reputation and social-status of its creator has been challenged by the anonymous nature of Internet communications.

With respect to electronic information, identification of quality content is easily achieved, for the most part, given that care is taken to ensure content advertised as lawyer-drafted is indeed so. Once content has been introduced into a file-sharing network, or posted to a website, its relative value can then be discerned from its popularity. For example, keyword and/or download search results are ranked in order of the amount of users sharing or accessing a particular file; consequently, the cream rises to the top. (27)

It is suggested by preeminent technology law scholar Professor Ethan Katsh that:

The days of (lawyers) hoarding hard-won legal expertise are over. Being a valuable lawyer in a networked world involves sharing information with others, so that you become a valuable node on the network. (28)

The emerging latent middle-market for legal products and services promises to be quite lucrative provided that practitioners are willing to more freely share their large stores of research and information both within, and beyond, the confines of the profession. Lawyers will then be able to take advantage of reduced costs of production to begin exploring a high-volume, low-cost, business model.

APPENDIX A: Open Information Schematic

This article is available under a Creative Commons license

Notes :

X. Marcus Bornfreund is Manager / Part-time Professor: University of Ottawa, Faculty of Law, Law & Technology Program < http://www.commonlaw.uottawa.ca/tech >

1. Special thanks to Ian M. Kerr and Marko Zatowkaniuk, law students and proponents of the open source way , for their outstanding contributions to this paper -- indeed parts of this work are, verbatim, their own. Deep graditude to Grand Master Kim G. von Arx for ensuring that I stay on the path. This paper, and the materials/resources flowing from it, are the result of commons-based peer-production and are not exclusively derived from my own thoughts and/or ideas.

10. Quoted from Surman and Diceman (The Commons Group), Choosing Open Source: A decision making guide for civil society organizations (2004) available at http://www.itrainonline.org/ [hereinafter Surman]

15. Visit the Law-Share Network at http://law-share.net to learn more about P2P-sharing of legal products.

16. See http://www.law.cornell.edu. See also T. Scassa, The Best Things in Law are Free? : Towards Quality Free Public Access to Primary Legal Materials in Canada (2000) 23(2) Dalhousie L. J. 301

22. Thanks to my LaTeX guru, Louis Raphael Béliveau of Montreal, Canada, who is known to spontaneously exclaim: LaTeX is great!

24. The opensource.law project will use the domestic version of the Creative Commons Attribution-ShareAlike 2.0 licence based on the nationality of the contributor.

25. Such a holistic evaluation requires the consideration of all the disparate costs assoicated with a particular product over the course of its lifetime; this includes: hardware, software, maintenance, training, programming, testing, upgrades. See further, Surman at note 8.

26. H.H. Perritt, Why Should Practicing Lawyers Be Interested in the Internet (1996) 443 PLI/Pat 47 at 49-50.

28. M.E. Katsh, Law In A Digital World: Computer Networks and Cyberspace (1993) 38 Vill. L. Rev. 403 at 457.