Activist Carl Malamud’s drive to make legal records available to all
Agitator, innovator, educator. It’s hard to know which role best describes Carl Malamud in his quest to make vast repositories of legal records available to anyone with access to the Internet. It seems he’s a bit of each as he buys up volumes and databases of case law, statutes, codes and regulations and posts them on Public.Resource.Org, the website of the nonprofit he founded in 2007 and operates out of Sebastopol.
Malamud’s been on a mission for the past 15 years to dig up data produced by governmental agencies, render it web-ready and expose it to public scrutiny via cyberspace. So far, he’s successfully challenged Congress, the Securities and Exchange Commission (SEC), the Trademarks and Patents Office and the Smithsonian, among others, to make governmental proceedings, publications, databases, videos and photos more visible to the public. What’s driven him on this mission? “I think access to knowledge is a human right,” says Malamud.
For some bureaucrats, releasing the requested documents or videos was an “ah-hah” moment that fueled excitement about the mass audience the net offers up. For others, it’s been a rude wake-up call to the power one small nonprofit organization can wield given a worldwide platform and a crusading CEO with a whole lot of tech-savvy.
Malamud’s an expert at getting the word out about his campaigns (Google his name and you’ll get more than 90,000 results). And judging from some of the comments on the hundreds of blogs where his posts appear, Malamud knows he’s touched a nerve.
A posting he placed on Boing Boing (the number two group blog in the world, with an estimated audience of several million, that covers topics such as technology and politics) earlier this year about a dispute with the Oregon Legislative Counsel Committee over copyrighting state statutes, produced a flurry of responses. Here are a couple of examples: “All state laws, policies, tax [revenue] and appropriation should be available online for the tax-paying public to review at any time,” and “Cases like these, IMO [in my opinion], are perfect examples of the consumerism parasite sucking on the civic body.”
Challenging copyrighted materials
Lately, Public.Resource.Org and its CEO have focused on “liberating” the law, in its myriad manifestations. To do so means scouring countless jurisdictions for data and risking retribution from corporate powerhouses such as Thomson West, which have historically controlled publication of case law.
“Legal information is the last bastion closed on the Internet. It’s a $5 to $10 billion a year industry—the selling of access to primary legal documents on a document-by-document basis,” says Malamud. “But the precedents are very clear that the law must be public. So that gives us a lot of leverage.”
Malamud began chipping away at the logjam of legal data earlier this year with the publishing of every decision from the U.S. Supreme Court and all Court of Appeals decisions since l950—1.8 million pages in all—on Public.Resource.Org. More recently, he’s been buying, scanning and posting building codes for various states, including California. A significant portion of California’s public safety codes are copyrighted by model code writing bodies.
“The publisher for the California building and other codes is the International Building Council, a Chicago-based nonprofit, under arrangement with the California Building Standards Commission,” says Malamud. “That’s a bit of a racket there, too. The Internet Building Council brings in $30 million a year, and they’re just one of several groups raking in the big bucks.” (There are hardcopy versions of the full building codes available at larger libraries, but not usually online versions.)
Malamud doesn’t have anything against publishers such as Thomson West making money, but he does object to companies negotiating special arrangements with the government for raw data not easily available to the general public. Once material is published with accompanying copyrightable materials, access often becomes by subscription or purchase only.
To avoid legal ramifications when scanning published materials, Malamud strives to extract only text considered in the public domain (information produced by, or resulting from, governmental activities). “We’re very careful to only put materials that are ‘legal’ online, though our interpretation [of what’s “legal”] is sometimes at variance with some of the established players. In the case of California, we purchased the entire set of Title 24 materials. We looked at it very carefully and felt the entire title was indeed the law and thus ‘fair game’ for posting, despite the fact that the state of California and some of the code councils have put copyright notices on the materials,” says Malamud.
Santa Rosa intellectual property attorney Bill Arnone of Merrill, Arnone & Jones, LLP, agrees that government works, such as the text of judicial decisions or language of a statute, belong in the public domain, but that other accompanying material created by publishers is copyrightable. “To the extent that someone adds value to raw data, they have a right to exploit that value. But to be copyrighted, the material has to satisfy a certain threshold of creativity,” says Arnone.
Ready and waiting for Web 2.0
Malamud believes free access to legal records benefits small businesses, entrepreneurs, consumers and concerned citizens (including historians and students). “Last year, we estimated it would cost about $6 million to buy all the raw data you needed to have primary legal material in the United States. Having this type of raw material available will have a percolating effect. It might be a local thing: Maybe some local attorney will decide to post legal information online tailored to the local area, put AdWords [Google’s pay-per-click and site-targeted advertising] on top of it and make money that way.”
Also standing to gain are other professionals or individuals who can’t afford, or don’t want, to subscribe to an online legal resource such as Lexis. This might include physicians concerned about privacy compliance, realtors seeking to resolve landlord-tenant disputes and homeowners wanting to avoid code violations during a do-it-yourself remodeling project.
While waiting for a tech whiz or enterprising attorney to exploit its financial potential, the raw legal material already acquired by Public.Resource.Org resides expectantly behind a basic, no-frills interface. “That’s one thing we’re clear about; we’re not in the business of running a fancy legal site. We don’t have a search bar on our site, so go to Google and search our stuff. We’re there to affect policy change and to liberate data,” says Malamud.
Civil disobedience meets cyberspace
When it comes to tilting with officials and bureaucrats, Malamud is unabashed. “Sometimes there’s a reluctance to release information because it’s the agency’s policy [not to],” says Malamud. “One of the lessons we try to teach these agencies is that, if it’s public domain, they don’t own it, so they can’t give permission, and it’s part of their mission to make it available.”
The tools used are high-tech, but his organization’s philosophy rests on centuries-old traditions. “We don’t break the law; we do classic civil disobedience. We think very carefully about what the law is, what the law should be, what our aims are. And we don’t try to hide what we do. One of the first things I did when we put the building codes online was to send an email to the president of the International Building Codes Council, and say ‘Just want to let you know what we’re doing.’”
Malamud believes transparency and accountability help prevent corruption.
“People divvy up the public pot among themselves if it’s not public. We’ve seen this with the law. There’s no transparency in how we publish our court opinions. And all of a sudden, big corporations have exclusive access to key government databases. That’s why you need that transparency—because when someone’s going in and saying, ‘This is mine; I’m taking it,’ someone else needs to look at it and say, ‘Wait a minute; this is all of ours.’”
Some public officials don’t necessarily care for Malamud’s overtures, even if they’re backed by democratic principles. “The ones who are professionals understand there’s nothing personal going on, no matter how dramatically we attack them. And you notice we don’t impugn people’s personal motives. I make it a matter of the issues: it’s not this ‘evil person’ or ‘evil party.’ It’s just people not thinking right.”
Tim O’Reilly, founder and CEO of O’Reilly Media in Sebastopol, has known Malamud for more than 15 years. “Carl is a showman—a technical performance artist whose guerilla PR tactics and deep understanding of the power of technology make him one of the most effective Internet activists,” says O’Reilly. “Absolutely, he’s a pioneer. He’s always been, in many ways, ahead of his time.”
They said it couldn’t be done
The geek side of Malamud relishes accomplishing almost overnight what a government agency’s technical staff has deemed impossible or prohibitively expensive. “Sometimes an agency’s staff says it’s impossible to convert an archive, because it would cost millions. And we’ll take a look at it, and say, ‘Well, that doesn’t look that hard,’ and we’ll just do it.”
Malamud used his technical acumen and powers of persuasion to prod the Securities and Exchange Commission (SEC) back in 1993 into releasing its EDGAR database, which contains financial information about thousands of companies worldwide. “Its computer staff hated what I was doing by putting EDGAR online. But when it got to the commissioners, they immediately saw the whole purpose of public filings was to make our markets more efficient.”
Occasionally, a mutually beneficial partnership develops, such as the relationship Malamud has achieved with the National Technical Information Service (NTIS). When the director got wind that Malamud was purchasing NTIS-produced videos for use on Public.Resource.Org, she agreed to send Malamud 15 videotapes a month on various subjects in return for his offer to send digital copies of the videos back to the agency. Malamud wryly calls this service “FedFlix.” The topics available for viewing range from Ellis Island to silicosis.
Rubbing elbows with “troublemakers”
Malamud didn’t always aspire to geekhood. In fact, he was studying for his Ph.D. in Economics at Indiana University when he was sidetracked by the siren call of the newly minted minicomputer. When the dean purchased a dozen of the minicomputers, Malamud studied the manuals in his spare time and started creating accounts for the business students, who were delighted at the hands-on access to data, from stock quotes to financial modeling software.
“It totally changed the way the MBA program worked there. And then, I had a choice of continuing my doctorate or getting on the computer staff and running larger projects for them. It just seemed to be the thing to do at the time.”
During the 1980s, Malamud specialized in creating proprietary networks for companies like Novell, teaching professional reference seminars and writing computer reference books, such as a three-volume series on analyzing computer networks. “About 1990, it finally dawned on me that this whole Internet protocol was the only network that really mattered,” he says.
Once Malamud realized the revolution that the Internet promised, he started finding ways to pry what he thought should be public information out of the hands of academicians, politicians and bureaucrats. In 1994, he founded the Internet Multicasting Service, the nonprofit group known for creating the first Internet radio station.
“We did the first podcasting and the first live webcasting. We demonstrated that the technology was getting ready for prime time even though a lot of people at the time didn’t even have sound cards on their computers.” One of the features on the station was “Geek of the Week,” with Malamud interviewing “leading network researchers, engineers, implementers and a wide variety of other troublemakers.”
Malamud continues to rub elbows with other tech folk at O’Reilly Media, where he leases office space. “I knew Tim O’Reilly had these beautiful buildings here, with great Internet access and other services, so I asked him if I could sublet. I don’t enjoy Silicon Valley, and San Francisco is way too expensive for those of us on nonprofit salaries.”
At present, Public.Resource.Org has only one employee (Malamud), three contractors and a board of directors. The organization receives funding through grants from foundations such as the Omidyar Network and has received occasional corporate support from companies such as Google and Yahoo! for meeting sponsorship. Malamud stresses that the agenda for Public.Resource.Org’s activities is set by Malamud and the organization’s board, not by its funders.
Malamud also works in concert with groups such as Creative Commons, the Internet Systems Consortium and the Internet Archive, among many other nonprofits that share his enthusiasm for promoting the “open source” approach to information sharing.
“It’s a large community, and there are folks we’ve worked with for years. That’s the Internet way; it’s not that we’re going to own everything and be one big corporation. The Internet was built with lots of small groups talking together.
“What’s amazing is how the number of people working on transparent government has grown over the last decade. There are groups all over the United States that are using the Internet to open up government. And it’s a long, uphill battle; the big lobbyists have us outgunned on money and resources. But you know, we’re probably smarter than they are.”
