Part of what I hope to do with the Program on Law & Technology at Columbia is bridge the communication gap between lawyers and engineers.  The two groups think completely differently.

To take a recent example, a new P2P file-sharing system has emerged called the Owner-Free Filesystem (OFF).  It stores and transmits only chunks of random binary data.  To retrieve a file, one uses a special URL that provides a mathematical formula for combining those random chunks into the original file.

Random bytes can’t be copyrighted, the system’s designers say, therefore the network is immune to copyright liability, although users are still liable for any infringement they themselves commit.  The idea is that the RIAA/MPAA/etc. cannot take legal action to shut down the OFF network, and will be forced to search individuals’ hard drives if they want to prove infringement.

It’s a typical engineer’s conception of how the law works — technicalities and loopholes.  They think they can get around the law with cleverness.  But it doesn’t work that way.  True, there are many technical loopholes in legal statutes, but statutes only form a small part of what “The Law” actually is.  The rest of the story comes in judicial decisions, or common law.

In this instance, the Supreme Court decision in MGM v. Grokster clearly comes out against OFF.  In Grokster, the court said that merely distributing “a device with the object of promoting its use to infringe copyright” (case syllabus, my emphasis) makes the distributor liable for copyright infringement.  Furthermore, a court would likely not care that the network only transmits random bytes.  The end result — you get a copy of a copyrighted work without the owner’s permission — is still infringement.

Therefore, the OFF would lose if it got sued by copyright owners.  The point is this: it doesn’t matter what the statute says, it matters what a judge would decide if presented with the case.

Here’s another, simpler example: There is a federal statute prohibiting flag burning.  Law professors ask first-year students: Is this a law?  The answer is no, because any federal judge would decide that the statute violates the First Amendment and would not enforce it.

I hope that services like AltLaw and KeepYourCopyrights will encourage engineers and other non-lawyers to take a closer look at how law actually works.  If engineers stopped wasting their time trying to engineer clever technological solutions to legal problems, and instead advocated for legislative reform to solve those problems, they might have a better chance of getting what they want.

Disclaimer: I am not a lawyer, and this is not legal advice.  If you need legal advice, get an attorney.

Since we started putting court cases on the interwebs, first with Project Posner and then with AltLaw, we’ve had the occasional angry email from someone who Googles himself/herself and finds a court case from 20 years ago that reveals embarrassing and career-damaging facts.  They usually want the page taken down.

Now, sometimes I’m sympathetic with the people making these requests — sexual harassment plaintiffs, asylum-seekers, and so on.  Other times, I’m not — usually when the person writing to us was convicted of sexual harassment, fraud, etc.

We’ve canvassed for opinions on what we should do.  The responses generally fall into 3 categories:

1. Lawyers say: Tough, it’s public record.  Without public case law the American legal system would cease to function.  Only the courts can (and do) decide to anonymize a case.
2. Techies say: Tough, information wants to be free.  If you don’t like what the web says about you, make your own web site to tell your side of the story.
3. Others say: I don’t know.  It’s wrong to censor public records, but it’s also wrong to make people suffer for something that happened 20 years ago.

There are also suggested solutions:

1. Refuse to take anything down.  Don’t answer the phone.
2. Anonymize names in “sensitive” cases.  Provide a protected link to a non-censored version.  The problem is, cases are routinely identified by the names of the parties.  If you take out the names, you don’t know what case it is anymore.
3. Block search engines from the entire site, either with robots.txt or free registration.  And say goodbye to 50% of our traffic.
4. Refuse to modify or take down cases, but block individual cases in robots.txt on request.

Our current policy is #4.  But is that good enough?  For the appeals and supreme court cases we currently host, probably.  But we hope to expand AltLaw to every U.S. court, down to the state level.  What happens when we start hosting, say, bankruptcy court decisions?

This gets into bigger questions of open access versus individual privacy.  We’re not the only ones struggling with the issue — our friends at Justia and public.resource.org have similar problems.  Ultimately, it’s a question for society at large.  Perhaps, as legal research on the web expands, courts will develop stricter standards for how they publish cases containing sensitive information.  But legal institutions are extremely resistant — and slow — to change.  The web of free legal information is growing fast — in the eight months since AltLaw launched, at least three commercial competitors have appeared.