I hope you caught the great article that appeared in Business Week about the awesome group of contributors that Mozilla has. If not, you can check it out here: http://www.businessweek.com/technology/content/jul2009/tc2009071_384108_page_2.htm.
As a new hire in Mozilla’s legal group, I’ve been contemplating whether we could follow the lead of the FOSS development community and establish a community of lawyers to be a part of the Mozilla community engaged in public-benefit legal projects.
According to the BW article, “[Clay Shirky, author of Here Comes Everybody: The Power of Organizing Without Organizations], who has spent several years researching collaboration in technology, says people tend to contribute to organizations or causes like Mozilla for three reasons: It aligns with their interests, they can get recognition, and they can meet other people doing it.”
My question is this: do these motivating factors apply to lawyers? And, if so, lawyers at what stages of their careers?
Some related questions naturally follow as I grapple with this topic: Are lawyers less giving? Too otherwise overworked to have the time? Too lacking in “free” time generally in their lives?
Or are lawyers just misperceived? Maybe lawyers are already giving in these ways, or they are just waiting for the right opportunity to get involved? Maybe lawyers are actually craving a sense of community and meaning in their practice.
On an anecdotal level, one of the Mozilla technical contributors quoted in the article mentioned that he was motivated to contribute to entities that foster community and openness.
This made me wonder: does legal training and our legal obligations around confidentiality and attorney-client privilege make lawyers instinctively averse to openness? Does the often confrontational (or at least representational) aspect of lawyering make community building amongst lawyers fundamentally at odds with how we are molded?
I don’t know the answers to these questions. My guess is that there is a group that is looking to engage in just this way. My goal is to identify and engage that group. So please tell me your thoughts (whether you are a lawyer or just have an opinion about them). And if you are a lawyer who would be interested in engaging, I would love to hear what would motivate you to get involved.
My initial reaction was along similar lines to your comments about ethics rules creating a hurdle for such a group. What initially drew me to (the technical side of) FOSS was the ability to get involved without huge commitments. I could provide patches when my time allowed, and step away when other demands became more pressing. For lawyers, that’s more difficult. Distributing legal problems broadly into small, manageable tasks doesn’t strike me as easy as it is for coding.
Furthermore, even the initial engagement has a higher cost within the legal realm than in coding. Assigning a bug to yourself creates little more than a social obligation to work on it. Take on a legal problem and all of a sudden conflicts-checks and ethical obligations attach, making it tougher to walk away.
I think perhaps the biggest difference, however, is that many law firms have already found a way to capture a lot of the motivation that drives people to FOSS contributions. The three motivating factors you mentioned can frequently be met through pro-bono hours. With an outlet for these already present, it seems less surprising to me that similar communities haven’t arisen in the same way. However, finding ways to partner with firms’ pro-bono operations could be a good way to get things started, without upsetting too many traditional notions of how one goes about practicing law.
In short, lawyers are generally pretty risk-averse, so I think the first step would be finding ways to mitigate those worries. Minimizing the commitment (both in terms of time and ethical constraints), and keeping things as familiar as possible seem like good places to begin.
I see two reasons for people to contribute to a community project:
- scratching their own itch
- doing something fun
For lawyers, I guess the chances are low that someone comes into Mozilla to fix a legal problem she has with the browser or the web herself. At least with Firefox itself, maybe with the web there might be more open doors.
Doing something fun for someone that does law all day is probably not involving doing law.
Let’s rephrase the question a bit.
Lawyers as citizens in Mozilla? Sure, there are probably tons. Doing legal? Not so much.
On the other hand, can we create an open community for legal questions inside the Mozilla ecosystem? Now, that’s tricky, because there are tons of people out there who are interested in law and legal and would like to contribute. Just that they can’t give legal advice because they’re not lawyers.
An interesting way out would be to find a way to both have an open community where amateurs can talk and still have a conversation that’s welcoming and educating for lawyers and empowers them to give legal advice that’s both legal advice and “Mozilla”.
Such a community might even be different enough in its working style that it’s a welcome change from the day job for someone working as a lawyer the rest of the day.
One thing to consider is that there are many fewer opportunities for non-litigators to do pro bono.
I have been working for years with Legal Services for Entreprenuers, which is an LCCR project. It’s entirely transactional work, for clients who are micro entrepreneurs with a demonstrated need, usually referred from community development organizations. For the history of the project, it has had many more attorney volunteers than clients. To me this speaks of a pent up desire to contribute, but no vehicle by which to do it. LSE has been successful in part because it sets very limited engagements for referred work. That means the lawyers who participate can manage their liability and their time.
Also, as a practical matter, any clinic setting (as opposed to an engagement by a law firm in the ordinary course) probably requires a formal pro bono organization behind it, to manage liability and engagement issues.
Thank you for these initial comments. I completely agree that having lawyers take on representation work that brings with it all the legal obligations of an attorney-client relationship, including malpractice liability, is a barrier to entry. It’s not insurmountable, but it is there and should be acknowledged for what it is.
What I should’ve made clear is that I’m thinking about community projects that are not representational in nature, meaning that no attorney-client relationship is created and none of the attendant risks and responsibilities apply.
This also means, to Axel’s point, that contributors need not be lawyers, which is part of the beauty. Non-lawyers may indeed have more to contribute to projects that look at the way legal things are done because they bring a fresh perspective. Among other benefits, non-lawyers may also bring practical experience as to the ramifications of the status quo approach.
So what kinds of projects am I contemplating? These kinds of projects would include things like Mozilla’s prior art project or updating the MPL. Future projects could include creating a set of templates or forms that could be used in technology transactions so that folks need not start from scratch everytime they negotiate an agreement (maybe something of a menu approach like the Creative Commons approach but on a broader scale that has options for each major term, like indemnity).
Or collaborating to help establish an open source technology as a standard. Or reaching out to community groups, law students, lawyers, or even lawmakers or business leaders to educate about open source or open discussions about alternative ways of thinking about ip rights. Coming up with the projects is part of the collaboration.
And to Heather’s point, I do believe that non-litigators have fewer options to contribute in ways that are meaningful and relevant to their practice. It would be great to tap into that desire to get involved both on the part of lawyers and non-lawyers.
On the non-representational side, has anyone reached out to Yale’s Information Society Project? They seem to be doing a few of the sorts of projects you listed, and could potentially provide some valuable insights. (Given the Open Video Conference collaboration I’m guessing the answer is ‘yes’, but just wanted to make sure.)
http://www.law.yale.edu/intellectuallife/informationsocietyproject.htm
Thanks for that tip and link. It does look like an organization with similar interests. I will definitely make sure we connect with them.
I expect Harvey has already pointed out, but I just wanted to say that I’m also very interested in the question of peer production of legal ‘goods’. I wish I had more time to respond to your post in depth right now, but that late July date with the bar examiners keeps distracting me.
I’ve got this post marked, though, and hopefully I’ll be able to write in some depth on it in August (and of course discuss it in a lot of depth after I start.)
The nutshell version is that I think it is achievable. There are examples of it already happening- NYLS is ‘open sourcing’ their Google Books amicus brief, OSI has some lawyer involvement in their licensing process, and the GPLv3 license rewrite involved a huge number of cross-collaborations among lawyers and non-lawyers alike. But building a sustainable community, and not just a series of one-offs, is going to require good tools, well-chosen projects (at least at first), breaking a lot of bad habits learned in law school and in firms, and maybe a well-researched ethics opinion or two from time to time
Anyway, look forward to discussing this with you (and many others) to the greatest extent I can after the bar, and definitely on a regular basis come December.
Hi, Luis. Good luck on the bar and I look forward to discussions on this point after you reemerge! And I especially look forward to your arrival later in the year so we can join forces on these points.
Cheers!
(Nothing of substance, just forgot to subscribe by email the first time
[...] Or reaching out to community groups, Law students, Lawyers, or even Lawmakers or Business leaders to educate about open source or open discussions about alternative ways of thinking about ip rights. Coming up with the projects is part … Lawyers as a Community? « Julie Martin’s Blog [...]
I too am interested in opportunities to collaborate with other lawyers and the initial project ideas you mentioned intrigue me. As you mentioned, there are plenty of examples of non-representational projects that allow lawyers to collaborate with each other or share legal knowledge with non-lawyers. This could involve making online legal tools and resources. The Reporters Committee for Freedom of the Press, for example, has a Freedom of Information Act generator [http://www.rcfp.org/foialetter/index.php]. They also put out a fairly useful online Open Government Guide [http://www.rcfp.org/ogg/index.php]. Projects like the guide involve discrete legal issues that a person can own and update. Those kinds of projects can be done without creating an attorney-client relationship and its attendant obligations.
I also think you will find that lawyers out there are interested in contributing. Not all lawyers work in large firms that offer pro bono opportunities. In my case, I work for a judge and so face restrictions on the type of pro bono legal work I can do. Even with those restrictions, however, I have been able to volunteer sharing legal information with non-lawyers. Keep me posted, because I would love to do more.
I will definitely keep you posted and would love to have you be part of the effort!
Julie,
I sent this link to Harvey a while back. It is a community library of clauses and contract forms. I thought it was really neat and I *think* it seems to be along the lines of what you were asking about.
http://www.firstdrafter.com/
Thanks. I will definitely check it out. What we may try to put together is a cluster of options for each typical clause. Say you have an indemnity clause and option A is purely copyright and trade secrets, option B includes US patents too, and option C is worldwide and all types of ip. Or depending on how many variables that ends up with (like is it validly issued US patents? or validly issued US patents as of the Effective Date?), could have a set of 6 or 10 licenses that are varying degrees of risk allocation. Not sure what is best, which is why looking at first drafter will help formulate possible approaches.
I believe Oracle tried to get some momentum around such a project a few years back and am looking into their experience so as not to reinvent the wheel.
Beware of too many options/combinations, Julie. Numerus clausus wasn’t invented just to give us another latin phrase to memorize
too much academic mumbo-jumbo here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=250973 and relatedly here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028947