\u201cThe Internet changes everything,\u201d they told us in the mid-90s.<\/p>\n
But what about law? Has the Internet changed it too? Certainly,\u00a0it has changed forever how legal research is done. In the United States, digital\u00a0filing has changed the lives of associates and paralegals everywhere,\u00a0making it necessary for law firms to learn about metadata and proper\u00a0redaction techniques, as some hapless law firms have discovered.\u00a0Judges have new worries and now routinely warn jurors what not to do\u00a0on the Internet.<\/p>\n
Can we blame the Internet for what I call\u00a0Litigation For Effect, where parties sue not so much for a legal\u00a0outcome as for an anticompetitive purpose? It used to be unusual\u00a0for companies to comment on active litigation. Nowadays, we hear complaints that parties sue so they can trash a competitor without\u00a0the usual fear of libel lawsuits or to cause legal uncertainty about a\u00a0competitor\u2019s products, apparently to diminish sales, or even\u00a0to\u00a0boost<\/a>\u00a0the plaintiff\u2019s stock price. It\u2019s no longer unusual for\u00a0a party in litigation to comment on its position, or to put up\u00a0a web page explaining its side of the story, or in one notorious case\u00a0involving the SCO Group even\u00a0to send\u00a0Congress<\/a>\u00a0a lobbying letter.<\/p>\n And there\u2019s another area of the law that has been affected directly by\u00a0the Internet and by this new wave of litigation for effect, and that\u2019s\u00a0the reaction to it by ordinary people, many now willing to group\u00a0together to search for usable evidence as a group project to answer\u00a0the allegations in the press in civil litigation they care about.<\/p>\n Groklaw<\/a><\/em>\u00a0was the first, a\u00a0group of people interested in the Linux operating system,\u00a0spontaneously springing up in reaction to legal threats against Linux,\u00a0showing how ordinary mortals could work\u00a0cooperatively to find usable evidence.\u00a0Groklaw<\/em>\u00a0is still searching for\u00a0evidence in court cases, particularly nowadays for prior art in patent\u00a0litigation, and so I\u2019d like to tell you how it started, how it works,\u00a0what it achieved, how it can benefit you, and how you can help.<\/p>\n The\u00a01995 BusinessWeek article,\u00a0The Software\u00a0Revolution<\/a><\/em>, that quoted J. Neil Weintraut of\u00a0Hambrecht & Quist saying that\u00a0the Internet changes everything explained that\u00a0\u201cthe Web has turned into a huge virtual\u00a0disk drive\u201d full of every possible kind of information, all\u00a0accessible to anyone using any operating system\u2019s browser.<\/p>\n One large hard drive that anyone anywhere can access,\u00a0contribute to, and\u00a0communicate about is a recipe for group work. People all over\u00a0the world can work\u00a0together now, despite living in far-flung states or even countries.\u00a0That is how a completely free operating system,\u00a0Linux, was\u00a0born<\/a>and grew to adulthood now,\u00a020 years later<\/a>.<\/p>\n No matter who you are, if you are on the Internet, you are likely\u00a0using Linux every day. Do you ever go to Google? Google\u00a0runs on Linux<\/a>. So\u00a0do Amazon<\/a>,\u00a0Facebook<\/a>, and\u00a0Twitter<\/a>.<\/p>\n If you use the federal court system, odds\u00a0are you are using Linux, even if you don\u2019t realize it, because the\u00a0courts\u00a0began to\u00a0switch to Linux<\/a>\u00a0to run core operations in 2003. The White\u00a0House\u00a0chose Linux in 2009<\/a>\u00a0as part of a move to Open\u00a0Source solutions. Google\u2019s Android, which also runs on Linux, is\u00a0taking over the smartphone world<\/a>. Perhaps you\u2019ve heard\u00a0about\u00a0all the current litigation<\/a>, brought by the proprietary\u00a0software big guns and some patent trolls, trying, some believe, to\u00a0slow Android down or put a cloud of legal uncertainty over it to\u00a0discourage its adoption by vendors.<\/p>\n A sustained attack on Linux\u00a0began in late 2002<\/a>, with a\u00a0company called SCO,\u00a0previously\u00a0known as Caldera<\/a>, claiming that Linux was an unauthorized derivative\u00a0work of its proprietary Unix and that as a result it was allegedly\u00a0was\u00a0infringing<\/a>\u00a0its \u201cUNIX intellectual property.\u201d That was eventually\u00a0ruled to be\u00a0untrue, after two district court judges, the\u00a0Hon.\u00a0Dale A. Kimball<\/a>\u00a0and the\u00a0Hon.\u00a0Ted Stewart<\/a>,\u00a0one\u00a0bench trial<\/a>, an\u00a0appeal<\/a>, and\u00a0one\u00a0Utah jury<\/a>\u00a0eventually\u00a0established that Novell, not SCO, owned\u00a0the copyrights at issue. There is a second appeal,\u00a0argued\u00a0on\u00a0January 20, 2011<\/a>, still pending at the\u00a0Tenth Circuit Court of Appeals<\/a>.<\/p>\n Yes, that means\u00a0Groklaw<\/em>\u00a0has been covering the same SCO litigations\u00a0for nearly a decade, and it\u2019s still not finished.<\/p>\n When I first\u00a0noticed SCO and wrote my first\u00a0Groklaw<\/em>\u00a0article about its claims,\u00a0SCO Falls\u00a0Downstairs,\u00a0Hitting its Head on Every Step<\/em><\/a>, it was mid-May of 2003. How did I\u00a0know it would likely fail? I knew its case against Linux, at least,\u00a0was hopeless because I knew\u00a0Caldera had\u00a0released<\/a>\u00a0its own Linux distribution under the\u00a0General\u00a0Public License<\/a>, GPL version 2, and\u00a0I knew<\/a>what\u00a0that\u00a0meant<\/a>. I also saw it was\u00a0continuing<\/a>\u00a0to distribute, despite\u00a0claiming<\/a>otherwise in June of\u00a02003, so I figured its goose was cooked by the GPL\u2019s terms. So\u00a0I began to blog<\/a>\u00a0about it and\u00a0provided extensive resources<\/a>\u00a0explaining details and showing where to go to find more information.<\/p>\n In the\u00a0first\u00a0interview<\/a>\u00a0I ever did, I explained why I started\u00a0Groklaw<\/em>:<\/p>\n I reasoned like this originally: I am not a\u00a0lawyer. I am not a programmer. I have no influence. I have few friends\u00a0in high places. I am not a political person. I belong to no\u00a0organizations. What can *I* do?<\/p>\n By that question, I don\u2019t mean I gave up. I mean I seriously thought\u00a0about what could I do. I wanted to do something. . . .<\/p>\n All right, I said to myself, what can I do well? The answer was, I can\u00a0research and I can write. Those are the two things attorneys and\u00a0companies hire me to do for them. I decided, I will just do what I do\u00a0best, and I\u2019ll throw it out there, like a message in a\u00a0bottle.<\/p><\/blockquote>\n Today,\u00a0Groklaw<\/em>\u00a0has more than 12,000 members and a\u00a0vastly larger international readership. It was the Internet that made\u00a0Groklaw<\/em>\u00a0Groklaw<\/em>, because\u00a0as readers\u00a0discovered\u00a0Groklaw<\/em>, they brought with them their knowledge,\u00a0technical skills, and work experience. As I read their comments,\u00a0I realized<\/a>\u00a0they knew computer history. Computers are fairly new, and\u00a0they had lived it all, in some cases from the beginning. I began to\u00a0share in articles what they posted, and group work began in earnest.<\/p>\n Just\u00a0this one page<\/a>\u00a0on\u00a0Groklaw<\/em>, a collection of contracts, copyright\u00a0registrations, and other documents relevant to the SCO litigations,\u00a0demonstrates how deeply readers were following along. The public,\u00a0clearly, wanted to know all they could learn, despite having otherwise\u00a0no interest in the law. They wanted to know and they wanted to help.<\/p>\n But for it all to work,\u00a0Groklaw<\/em>\u00a0had to explain how the legal process\u00a0works, so\u00a0the technical community could understand things like the rules of\u00a0evidence and what constitutes prior\u00a0art and how to research\u00a0sufficiently to find usable materials.<\/p>\n And the community did help.\u00a0It became the\u00a0purpose\u00a0of\u00a0Groklaw<\/em><\/a>\u00a0for the technical community gathered there to help\u00a0lawyers to comprehend technical\u00a0details in litigation, with the hope that court rulings would be based\u00a0on technical realities. In fact,\u00a0one feature of\u00a0Groklaw<\/em>\u00a0is that any lawyer needing to understand a\u00a0technical matter is free\u00a0to ask\u00a0Groklaw<\/em>\u00a0for help. Later, as lawyers also joined\u00a0Groklaw<\/em>, they\u00a0in turn could explain the legal process to the technical community.<\/p>\n Groklaw<\/em>\u2018s prior art searching has been remarkably effective.\u00a0In\u00a0IP Innovation v. Red Hat<\/em>, for example, a\u00a0Groklaw<\/em>\u00a0member\u00a0actually still had\u00a0a\u00a0working Amiga<\/a>\u00a0computer, which he offered to Red Hat after\u00a0reading\u00a0about the litigation<\/a>\u00a0on\u00a0Groklaw<\/em>, and it was used at trial in a\u00a0live demonstration of prior art in Red Hat\u2019s\u00a0successful\u00a0defense<\/a>. It was one of three principal examples of prior art used\u00a0at trial, all of which\u00a0Groklaw<\/em>\u00a0readers had\u00a0mentioned<\/a>\u00a0in comments. Here\u2019s\u00a0an\u00a0example<\/a>.<\/p>\n As Red Hat\u2019s VP and Assistant General Counsel for Intellectual\u00a0Property\u00a0said<\/a>\u00a0after the verdict in\u00a0IP Innovation v. Red Hat<\/em>\u00a0came in, \u201cThe jury\u2019s\u00a0decision shows that the open source community can stand up to coercion\u00a0based on bad software patents, and that juries can see through\u00a0arguments based on FUD.\u201d<\/p>\n Groklaw<\/em>\u00a0is made up 100% of volunteers. Willing volunteers have\u00a0attended court hearings and trials faithfully for all these years, in\u00a0Utah, in California, in Colorado, in Washington, DC, in Delaware,\u00a0and even in Europe, so\u00a0as to inform everyone of each step in the legal process of\u00a0cases\u00a0Groklaw<\/em>\u00a0follows<\/a>closely. In the\u00a0SCO\u00a0v. Novell<\/em><\/a>\u00a0trial in\u00a02010, volunteers attended every day of the\u00a015-day\u00a0trial<\/a>\u00a0and reported\u00a0promptly to me each night so that it was possible for\u00a0Groklaw<\/em>\u00a0to\u00a0present in-depth\u00a0coverage. Here are a\u00a0couple<\/a>\u00a0of\u00a0examples<\/a>. \u00a0Here\u2019s a sample of\u00a0our\u00a0reporting<\/a>\u00a0from the courthouse on the last day of the trial, which you can compare with the\u00a0transcript<\/a>\u00a0from that day. I think you\u2019ll see that these lay reporters did a\u00a0remarkable job. It\u2019s because they cared so much.<\/p>\n Other volunteers, before the courts switched\u00a0to digital filing, personally went to the various courts to pick up\u00a0documents, digitize them, and upload them to\u00a0Groklaw<\/em>\u2018s database. They\u00a0did this for years, at their own expense. Others\u00a0helped to prepare text versions of the PDFs, so that the materials would\u00a0be easily searchable and easier to use for those who depend on screen\u00a0readers. This is incredibly boring work, as I\u00a0can testify from the heart, and yet we do it. It\u2019s\u00a0challenging to make sure it\u2019s done as accurately as possible, and yet\u00a0volunteers have done massive amounts of this work, as you can see in\u00a0just one example, transcribing the exhibits filed in the antitrust case,\u00a0Comes\u00a0v. Microsoft<\/em><\/a>, a project we are still working on. Even though the case\u00a0settled, the exhibits had been made\u00a0public by the judge, but they were organized only\u00a0by number, making them extremely difficult to use for anything. Our\u00a0Groklaw<\/em>\u00a0collection<\/a>\u00a0as text, however, makes them easily searchable, and in\u00a0the\u00a0Novell\u00a0v. Microsoft<\/em><\/a>\u00a0antitrust litigation over WordPerfect, some\u00a0Comes\u00a0<\/em>exhibits\u00a0appeared.<\/p>\n Anyone is free to use our resources, and even SCO\u2019s lawyers\u00a0have\u00a0done\u00a0so<\/a>. All my articles are released under a\u00a0Creative\u00a0Commons license<\/a>.\u00a0Groklaw<\/em>\u00a0has won\u00a0many\u00a0awards<\/a>\u00a0over the years, but its secret is that it\u2019s\u00a0an application of\u00a0Open Source principles, but in a new area. No one knows as much as\u00a0all of us together, as the saying goes. And\u00a0Groklaw<\/em>\u00a0is still morphing\u00a0and growing.<\/p>\n Recently\u00a0I\u00a0handed the editorship of\u00a0Groklaw<\/em><\/a>\u00a0over to a lawyer,\u00a0Mark Webbink<\/a>,\u00a0because as\u00a0Groklaw<\/em>\u00a0is moving more and more into prior art searching,\u00a0I recognized my limitations in that area. He is also a law professor,\u00a0and our hope is that his law students will join in the\u00a0Groklaw<\/em>\u00a0project. You can too. And if you are a law professor, please\u00a0consider assigning\u00a0Groklaw<\/em>\u00a0work to your students for credit. Why\u00a0shouldn\u2019t law students be assigned to cover trials happening near\u00a0them? What could be better training than to watch some of the world\u2019s\u00a0best litigators at work? Others can explain some aspect of IP law.\u00a0Groklaw<\/em>\u2018s readers are still hungry to learn. If you\u2019d like to do\u00a0something like\u00a0Groklaw<\/em>, but different, please do.<\/p>\n The Internet is\u00a0vast. There\u2019s still plenty of room to educate the public on how the\u00a0law works and why it matters so much.<\/p>\n Pamela Jones is the founder of\u00a0<\/em>Groklaw, an award-winning blog covering legal issues concerning open-source and software issues.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" \u201cThe Internet changes everything,\u201d they told us in the mid-90s. But what about law? Has the Internet changed it too? Certainly,\u00a0it has changed forever how legal research is done. 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