Copyright, Technology, and Access to the Law: An Opinionated Primer

“Copyright, Technology, and Access to the Law: An Opinionated Primer”

NYLS Legal Studies Research Paper No. 08/09-1


Recently, the state of Oregon has used copyright law to threaten people who were publishing its laws online. Can they really do that?

More to the point, why would they? This essay will put the Oregon fracas in historical context, and explain the public policies at stake. Ultimately, it’ll try to convince you that Oregon’s demands, while wrong, aren’t unprecedented. People have been claiming copyright in the law for a long time, and at times they’ve been able to make a halfway convincing case for it. While there are good answers to these arguments, they’re not always the first ones that come to hand. It’s really only the arrival of the Internet that genuinely puts the long-standing goal of free and unencumbered access to the law within our grasp.

This essay, written for nonlawyers and people interested in contemporary debates over access to the law, explains what’s at stake in the Oregon dispute, how people have tried such things before, the role of new technologies in improving legal publishing, what the law has to say about it, and where we ought to go from here.


Source:  LSN Legal Information & Technology Vol. 1 No. 8,  04/08/2009

The Google Dilemma

“The Google Dilemma”

New York Law School Law Review, Forthcoming
NYLS Legal Studies Research Paper No. 08/09#2

Web search is critical to our ability to use the Internet. Whoever controls search engines has enormous influence on all of us; whoever controls the search engines, perhaps, controls the Internet itself. This short essay (based on talks given in January and April 2008 ) uses the stories of five famous search queries to illustrate the conflicts over search and the enormous power Google wields in choosing whose voices are heard on the Internet.


Source: LSN Young Scholars Law APS Vol. 5 No. 36,  08/04/2008


Information Policy for the Library of Babel

Yesterday’s mail brought along Vol 3, No. 1 of the Journal of Business & Technology Law.  This issue contains a Google symposium, “Google: An Intersection of Business and Technology,” which includes these articles:

Google and Fair Use, Jonathan Band

Information Policy for the Library of Babel, James Grimmelmann

The Google IPO, Matthias Hild

Asterisk Revisited: Debating a Right of Reply on Search Results, Frank Pasquale

From Making Money without Doing Evil to Doing Good without Handouts: The Experiment in Philanthropy, Shruti Rana

Google Benefits or Google’s Benefit?, Susan J. Stabile

Privacy on Planet Google: Using the Theory of “Contextual Integrity” to Clarify the Privacy Threats of Google’s Quest for the Perfect Search Engine, Michael Zimmer

Clearly an issue for us to take with us on our summer vacations for beach or pool-side reading!

James Grimmelmann’s article, published under a Creative Commons license, sets “out a few principles of sensible information policy for the Library of Babel.”  Here are the article’s concluding principles:


As it announces in its very first sentence, The Library of Babel is an allegory for the universe. This essay has also treated it as an allegory–and an anachronistic and transparent one at that. For “Library of Babel,” read “Internet.” For “book,” read “Web site.” And for “Book-Man,” read “search engine.” It’s almost a cliche to assert that the Internet is like a vast library, that it causes problems of information overload, or that it contains both treasures and junk in vast quantities. Looking at it through the lens of Borges’s Library amplifies these themes to their utter limit, and thus makes them fresh again. The ten principles set forth above are completely serious. Here they are again, using the proper terminology:

1. The public interest means readers’ interest.

2. Infrastructure matters.

3. Censorship is usually irrelevant.

4. The problem is access, not creation.

5. The Internet is nearly, but not completely useless.

6. Search engines make the Internet useful.

7. An impostor could not pretend to have a good search engine.

8. Search engines could keep secrets from us and we’d never know.

9. Search engines can play favorites.

10. The more search engines the better.

The Library of Babel provides an exhilarating and frightening metaphor for the Internet. Exhilarating because it reminds us that we are all now “the possessors of an intact and secret treasure” of knowledge beyond compare. Frightening because it reminds us that that knowledge is shut away in a “feverish [place], whose random volumes constantly threaten to transmogrify into others, so that they affirm all things, deny all things, and confound and confuse all things, like some mad and hallucinating deity.” Only the god-like Book-Man, whose knowledge of the Library is an “honor and wisdom and joy,” can make sense of it for us. In the Library of Babel, the Book-Man is but a “superstition,” but on the Internet, his name is Google.

Associate Professor of Law, New York Law School. As of January 1, 2009, this Article is available for reuse under the Creative Commons Attribution 3.0 United States license,