The Internet Changed Everything, Even the Law
Citation: 100 Geo L.J. Online (2016)
“The Internet changes everything,” they told us in the mid-90s.
But what about law? Has the Internet changed it too? Certainly, it has changed forever how legal research is done. In the United States, digital filing has changed the lives of associates and paralegals everywhere, making it necessary for law firms to learn about metadata and proper redaction techniques, as some hapless law firms have discovered. Judges have new worries and now routinely warn jurors what not to do on the Internet.
Can we blame the Internet for what I call Litigation For Effect, where parties sue not so much for a legal outcome as for an anticompetitive purpose? It used to be unusual for companies to comment on active litigation. Nowadays, we hear complaints that parties sue so they can trash a competitor without the usual fear of libel lawsuits or to cause legal uncertainty about a competitor’s products, apparently to diminish sales, or even to boost the plaintiff’s stock price. It’s no longer unusual for a party in litigation to comment on its position, or to put up a web page explaining its side of the story, or in one notorious case involving the SCO Group even to send Congress a lobbying letter.
And there’s another area of the law that has been affected directly by the Internet and by this new wave of litigation for effect, and that’s the reaction to it by ordinary people, many now willing to group together to search for usable evidence as a group project to answer the allegations in the press in civil litigation they care about.
Groklaw was the first, a group of people interested in the Linux operating system, spontaneously springing up in reaction to legal threats against Linux, showing how ordinary mortals could work cooperatively to find usable evidence. Groklaw is still searching for evidence in court cases, particularly nowadays for prior art in patent litigation, and so I’d like to tell you how it started, how it works, what it achieved, how it can benefit you, and how you can help.
The 1995 BusinessWeek article, The Software Revolution, that quoted J. Neil Weintraut of Hambrecht & Quist saying that the Internet changes everything explained that “the Web has turned into a huge virtual disk drive” full of every possible kind of information, all accessible to anyone using any operating system’s browser.
One large hard drive that anyone anywhere can access, contribute to, and communicate about is a recipe for group work. People all over the world can work together now, despite living in far-flung states or even countries. That is how a completely free operating system, Linux, was born and grew to adulthood now, 20 years later.
If you use the federal court system, odds are you are using Linux, even if you don’t realize it, because the courts began to switch to Linux to run core operations in 2003. The White House chose Linux in 2009 as part of a move to Open Source solutions. Google’s Android, which also runs on Linux, is taking over the smartphone world. Perhaps you’ve heard about all the current litigation, brought by the proprietary software big guns and some patent trolls, trying, some believe, to slow Android down or put a cloud of legal uncertainty over it to discourage its adoption by vendors.
A sustained attack on Linux began in late 2002, with a company called SCO, previously known as Caldera, claiming that Linux was an unauthorized derivative work of its proprietary Unix and that as a result it was allegedly was infringing its “UNIX intellectual property.” That was eventually ruled to be untrue, after two district court judges, the Hon. Dale A. Kimball and the Hon. Ted Stewart, one bench trial, an appeal, and one Utah jury eventually established that Novell, not SCO, owned the copyrights at issue. There is a second appeal, argued on January 20, 2011, still pending at the Tenth Circuit Court of Appeals.
Yes, that means Groklaw has been covering the same SCO litigations for nearly a decade, and it’s still not finished.
When I first noticed SCO and wrote my first Groklaw article about its claims, SCO Falls Downstairs, Hitting its Head on Every Step, it was mid-May of 2003. How did I know it would likely fail? I knew its case against Linux, at least, was hopeless because I knew Caldera had released its own Linux distribution under the General Public License, GPL version 2, and I knew what that meant. I also saw it was continuing to distribute, despite claiming otherwise in June of 2003, so I figured its goose was cooked by the GPL’s terms. So I began to blog about it and provided extensive resources explaining details and showing where to go to find more information.
In the first interview I ever did, I explained why I started Groklaw:
I reasoned like this originally: I am not a lawyer. I am not a programmer. I have no influence. I have few friends in high places. I am not a political person. I belong to no organizations. What can *I* do?
By that question, I don’t mean I gave up. I mean I seriously thought about what could I do. I wanted to do something. . . .
All right, I said to myself, what can I do well? The answer was, I can research and I can write. Those are the two things attorneys and companies hire me to do for them. I decided, I will just do what I do best, and I’ll throw it out there, like a message in a bottle.
Today, Groklaw has more than 12,000 members and a vastly larger international readership. It was the Internet that made Groklaw Groklaw, because as readers discovered Groklaw, they brought with them their knowledge, technical skills, and work experience. As I read their comments, I realized they knew computer history. Computers are fairly new, and they had lived it all, in some cases from the beginning. I began to share in articles what they posted, and group work began in earnest.
Just this one page on Groklaw, a collection of contracts, copyright registrations, and other documents relevant to the SCO litigations, demonstrates how deeply readers were following along. The public, clearly, wanted to know all they could learn, despite having otherwise no interest in the law. They wanted to know and they wanted to help.
But for it all to work, Groklaw had to explain how the legal process works, so the technical community could understand things like the rules of evidence and what constitutes prior art and how to research sufficiently to find usable materials.
And the community did help. It became the purpose of Groklaw for the technical community gathered there to help lawyers to comprehend technical details in litigation, with the hope that court rulings would be based on technical realities. In fact, one feature of Groklaw is that any lawyer needing to understand a technical matter is free to ask Groklaw for help. Later, as lawyers also joined Groklaw, they in turn could explain the legal process to the technical community.
Groklaw‘s prior art searching has been remarkably effective. In IP Innovation v. Red Hat, for example, a Groklaw member actually still had a working Amiga computer, which he offered to Red Hat after reading about the litigation on Groklaw, and it was used at trial in a live demonstration of prior art in Red Hat’s successful defense. It was one of three principal examples of prior art used at trial, all of which Groklaw readers had mentioned in comments. Here’s an example.
As Red Hat’s VP and Assistant General Counsel for Intellectual Property said after the verdict in IP Innovation v. Red Hat came in, “The jury’s decision shows that the open source community can stand up to coercion based on bad software patents, and that juries can see through arguments based on FUD.”
Groklaw is made up 100% of volunteers. Willing volunteers have attended court hearings and trials faithfully for all these years, in Utah, in California, in Colorado, in Washington, DC, in Delaware, and even in Europe, so as to inform everyone of each step in the legal process of cases Groklaw follows closely. In the SCO v. Novell trial in 2010, volunteers attended every day of the 15-day trial and reported promptly to me each night so that it was possible for Groklaw to present in-depth coverage. Here are a couple of examples. Here’s a sample of our reporting from the courthouse on the last day of the trial, which you can compare with the transcript from that day. I think you’ll see that these lay reporters did a remarkable job. It’s because they cared so much.
Other volunteers, before the courts switched to digital filing, personally went to the various courts to pick up documents, digitize them, and upload them to Groklaw‘s database. They did this for years, at their own expense. Others helped to prepare text versions of the PDFs, so that the materials would be easily searchable and easier to use for those who depend on screen readers. This is incredibly boring work, as I can testify from the heart, and yet we do it. It’s challenging to make sure it’s done as accurately as possible, and yet volunteers have done massive amounts of this work, as you can see in just one example, transcribing the exhibits filed in the antitrust case, Comes v. Microsoft, a project we are still working on. Even though the case settled, the exhibits had been made public by the judge, but they were organized only by number, making them extremely difficult to use for anything. Our Groklaw collection as text, however, makes them easily searchable, and in the Novell v. Microsoft antitrust litigation over WordPerfect, some Comes exhibits appeared.
Anyone is free to use our resources, and even SCO’s lawyers have done so. All my articles are released under a Creative Commons license. Groklaw has won many awards over the years, but its secret is that it’s an application of Open Source principles, but in a new area. No one knows as much as all of us together, as the saying goes. And Groklaw is still morphing and growing.
Recently I handed the editorship of Groklaw over to a lawyer, Mark Webbink, because as Groklaw is moving more and more into prior art searching, I recognized my limitations in that area. He is also a law professor, and our hope is that his law students will join in the Groklaw project. You can too. And if you are a law professor, please consider assigning Groklaw work to your students for credit. Why shouldn’t law students be assigned to cover trials happening near them? What could be better training than to watch some of the world’s best litigators at work? Others can explain some aspect of IP law. Groklaw‘s readers are still hungry to learn. If you’d like to do something like Groklaw, but different, please do.
The Internet is vast. There’s still plenty of room to educate the public on how the law works and why it matters so much.
Pamela Jones is the founder of Groklaw, an award-winning blog covering legal issues concerning open-source and software issues.