Timothy K. Armstrong

“ As a matter of principle, there is no reason why such a crowdsourced production process might not be employed to extend access to legal materials and scholarship. The technological architecture for building new open-access projects in the legal arena is already in place; all that is missing is a sufficiently large pool of contributors willing to assist in building the informational commons as their interests and abilities permit. ”

“ Inviting interested members of the legal community and the public to collaborate in building a free commons of legal source materials removes the resource constraints of any single organizing entity as a limiting factor.
The wiki-based architecture of a project like Wikisource offers another potential benefit in the form of reducing barriers to participation. Wikisource’s approach differs markedly from Distributed Proofreaders’: the open wiki-based architecture invites and facilitates participation by users of widely varying expertise. ”

“ Fostering open access naturally fits with the mission of the modern university along multiple dimensions. Faculty research benefits from a regime in which source materials are freely accessible, and faculty scholarship that is made available in an open-access forum promises greater impact. Furthermore, the widespread adoption of open-access initiatives may yield substantial benefits even outside the directly involved university community. ”

“ Many open-access sites fail to take advantage of the improved capabilities that hypertext offers over publication of the exact same document in paper form. That is to say, although they reproduce the text of the courts’ opinions as published, they do nothing more than that: it is not possible to click and follow a citation that appears in the text of the court’s opinion and view the cited source, even if the other source is also online. Nor do most sites include any citator functionality whereby the opinion being displayed can be followed forward in time to locate references that cite it. ”

“ This short essay surveys the state of open access to primary legal source materials (statutes, judicial opinions and the like) and legal scholarship. The ongoing digitization phenomenon (illustrated, although by no means typified, by massive scanning endeavors such as the Google Books project and the Library of Congress’s efforts to digitize United States historical documents) has made a wealth of information, including legal information, freely available online, and a number of open-access collections of legal source materials have been created. ”

“ In dealing with the open-access phenomenon, university libraries in particular confront imperatives that do not point uniformly in a single direction. To be sure, many librarians rightly see themselves as natural allies of the open-access movement and as well-positioned advocates for open-access policies because those policies best meet the needs of the library’s core constituencies. ”

“ Organized action by the academic community would go a long way towards making open access to information the norm rather than the still-developing exception. As of yet, however, progress towards inculcating open-access norms in the academic community has been halting and sporadic. The praiseworthy example shown by the prominent research institutions whose faculties have adopted open-access mandates [32] only highlights the vastly greater number of institutions that have not. ”

“ To maximize the overall benefit to the information commons, crowdsourced projects should aim to supplement rather than to supplant existing open-access repositories for legal works. New projects should aim at building strength in areas where existing repositories are weak: they should focus more on legislative and executive materials rather than case law, and more on historical rather than contemporary works. ”

“ Wikisource’s most evident weaknesses stem from the comparatively small community of users of the site: by any measure, Wikisource is a tiny project compared with Wikipedia or Distributed Proofreaders. [155] The smaller number of users at the site translates into substantially greater time required to complete any given proofreading project and has also limited the number of texts that have been added to the site. Thus, Wikisource remains very far from approaching Professor Gallacher’s ideal of completeness for an open-access repository. ”

“ The same “peer production” process that has allowed far-flung communities of volunteers to build large-scale informational goods like the Wikipedia encyclopedia or the Linux operating system might be harnessed to build a digital library. The essay critically reviews two projects that have sought to “crowdsource” proofreading and archiving of texts: Distributed Proofreaders, a project frequently held up as a model in the academic literature on peer production; and Wikisource, a sister site of Wikipedia that improves on Distributed Proofreaders in a number of ways. ”

“ The movement to assure open access to scholarship is more advanced outside the legal academy. The difference is partly explained by differing market dynamics: University libraries, driven by eye-popping increases in subscription costs for specialized research journals, responded by dropping subscriptions, creating a risk that scholars working in those specialized fields would find it more difficult both to remain abreast of developments and to ensure dissemination of their own work to their peers. ”

“ At one level, enlisting faculty support for scholarly open-access initiatives consists merely of fostering personal and institutional self-interest. Inaccessible scholarship is unpersuasive scholarship, and studies have tended to suggest that opening access to scholarly works correlates with greater scholarly impact (as measured by citation counts) . ”

“ In many instances, users may only view a single page image on screen at a time, and may only navigate forward and backward a page at a time, or jump to a specific, known, page number. Furthermore, for many of the most valuable works in its collection, the Library provides only page images, not text, making it impossible to (for example) copy-and-paste the language of early legislative enactments into another document. The present author’s Early United States Statutes project represents one effort to build upon the Library’s scanned document repository and make it more useful. ”

“ Users of peer-produced projects are free to come and go, and there is no guarantee that a user who launches any given project will see it through to completion. Although some users diligently perform work (such as archiving past discussions and rationalizing the site’s frequently confusing categorization structures) that improves the quality and usefulness of the site overall, most users appear to be focused on expanding the library by adding new content. ”

“ Open Access Initiatives Efforts to make legal information freely accessible online represent currents within a much broader stream that is the mass digitization movement. Exemplified by large-scale projects like Google Books, [43] the Internet Archive, [44] and Project Gutenberg, [45] the digitization movement has long since succeeded in making the complete works of Shakespeare [46] and Dickens, [47] among countless others, freely accessible to a global audience. ”

“ Nevertheless, given that more than 550 volumes of the Reports have been published (including over 400 since “United States Reports” became the official title of the series) , a search that returns fewer than one-third that number of hits (and includes among the total many documents that are not themselves part of the United States Reports) still reveals something about the fragmentary and sporadic coverage of legal materials found in many of the general-purpose digitization projects. ”

“ Crowdsourcing can be viewed as a force multiplier: companies and other entities can sometimes get far more work done by opening their projects to collaborative input than they could have accomplished solely through the efforts of their own employees. ”

“ Nevertheless, a number of structural weaknesses may limit DP’s utility as a tool for improving access to primary legal source materials. Unlike many of the most vibrant peer-produced informational projects, DP maintains a bureaucratic, hierarchical structure, with site administrators adjudicating users’ compliance with the site’s daunting criteria for promotion to higher levels of access, and all but the most senior users are disabled entirely from contributing new works. ”

“ The architecture of the site permits users to contribute according to their respective expertise. [157]
Like any other organizational tool, however, crowdsourced methods have weaknesses as well as strengths. Goal-setting and prioritization of work is a recurring issue for projects situated outside any formal organizational structure. For example, Wikisource, like Wikipedia or any number of similar open-content projects, has no “benevolent dictator” assigning tasks or ensuring that user effort flows to where it is most needed. ”

“ By virtue of its design, Wikisource comports with many (although certainly not all) of Professor Ian Gallacher’s proposed design standards for open-access archives of primary legal source materials. [151] Wikisource’s collection is universally accessible worldwide. It can be presented in a variety of formats (or downloaded freely and further processed to meet a user’s specific presentation needs) , and its contents are open to indexing by Google or other standard search engines. ”

“ Open access publishing solves both problems by making current scholarship available worldwide at little expense. For that reason, faculty at several influential research institutions have voted to authorize archiving and distribution of their scholarship on open-access terms. ”

“ The essay concludes by offering a few illustrations meant to show the potential for using Wikisource as an open-access repository for primary source materials and scholarship, and considers some possible drawbacks of the crowdsourced approach.
I. Introduction The digital era has exposed the limitations of paper as an archival medium. Although paper (like other forms of hard-copy) makes an excellent tool for transmitting knowledge across lengthy spans of time, it makes a poor tool for transmitting knowledge across lengthy spans of distance. ”

“ The volume’s Index page also includes links to each individual page contained within the volume. Each page link is color-coded using a standard schema that applies site-wide and reflects, in essence, the level of confidence of the project’s users that the text reproduced at that link accurately reflects the content of the corresponding scanned page. Thus, the Index page reveals at a glance how much progress the site’s users have made towards finalizing the proofreading and correction of the work. ”

“ A certain portion of the editing work on a site like Wikisource necessarily involves correcting erroneous contributions made by inexpert users of the site, although the benefit to allowing such users to participate and thereby to acquire greater familiarity with the site’s tools and culture surely outweighs the occasional need to undo mistaken or malicious edits. ”

“ The possibility that mass digitization projects may threaten adverse effects on the operation of libraries is an important factor behind the equivocal stance the library community has adopted towards the proposed settlement of the ongoing Google Book Search copyright litigation. ”

“ Adding contextual richness with hyperlinking and verifiability against official sources will make such projects more attractive for everyday use and provide a practical alternative to proprietary legal databases. ”

“ In the decade since its founding, volunteers coordinating their efforts through Distributed Proofreaders have proofread and released in electronic form (through Project Gutenberg) over 17,000 texts. [104] DP’s strengths include a large and supportive user community (with over 3,000 contributors active in the last 30 days at the time of this writing) [105] and a rapid proofreading process, with completion times even for lengthy works measured in weeks (at least in the early rounds) . ”

“ The site’s architecture thus gives the proofreading process some aspects of a rudimentary video game, with users’ proofreading activities yielding progressive “rewards” in the form of perceptible changes in the appearance of the work’s index page. This feature is, if nothing else, an ingenious way of encouraging sustained user involvement, even if the makers of World of Warcraft or other actual video games probably have little to fear from the competition posed by Wikisource. ↑ See Figure 3, infra, at 33. ”

“ See supra note 126. ↑ In addition to the sheer size of the dataset (the Statutes at Large scans alone presently account for over 20% of all the scanned pages available at Wikisource) , the process of proofreading and correction is doubtless slowed by (1) the complex, multi-column page format employed in the original work; and (2) the poor quality of the raw OCR output from the software employed to date, which necessitates substantial human effort to proofread and correct a single page. There is nothing inevitable or irremediable about either of these problems ”

“ Kevin Kelly, Scan This Book!, N.Y. Times, May 14, 2006, § 6 (Magazine) , at 42, 45. ↑ See Peter Suber, Open Access Overview, http://www.earlham.edu/~peters/fos/overview.htm (last visited Sept. 29, 2009) (“Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions.”) . There is no single settled definition of “open access,” although most conventional understandings of the term share common traits (the most important being the relative ease and low cost of access as compared with the traditional roprietary publication paradigm) . ”