Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship

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. A wealth of knowledge, including legal knowledge, remains effectively trapped inside paper records, where it can be used only by those with access to the physical medium in which it is contained. The movement to digitize paper records and make them freely available online promises to liberate information, including legal information, from these physical constraints and make it accessible around the globe. The scope of the task, however, is massive and daunting. Even the best organized (and best funded) efforts, such as the Google Books project (currently the subject of copyright litigation (1)) and the Library of Congress's efforts to scan American historical documents, (2) can only scratch the surface. Indeed, the Library of Congress recently estimated that, at its present pace, it will take almost two thousand years to digitize the nine billion text records it presently holds in its collection. (3) Wikis and other collaborative tools change this picture in potentially important ways. Just as other informational projects have benefited by opening themselves to participation by a distributed community of volunteers, (4) the means now exist to harness the efforts of legal professionals, students, and even interested members of the public at large to improve access to legal information, court decisions, statutes and regulations, and legal scholarship. In 2008, for example, the participants in one such project (initiated by the present author) succeeded in making crucial portions of the legislative history of the landmark Copyright Act of 1976 freely available online for the first time. (5) The online version of the Copyright Act's legislative history improves access not only by duplicating the text of the original report, but--perhaps more importantly--by making it possible for other online works that cite the report to hyperlink to it. (6) This creates a seamless web of knowledge that improves upon the practical experience of using reference sources in paper form. If we multiply this isolated example by dozens, hundreds, or thousands of interested online users of legal texts, the possibility of a transformative moment in access to legal knowledge begins to appear ever closer. (7) This essay begins with a review of the open access imperative, which may be normatively grounded in considerations of transparency, democratic legitimacy, and the fulfillment of the university's public service mandate. It then surveys the current status of a number of projects aimed at improving public access to legal materials and scholarship, and explores whether "crowdsourced," Wiki-centered efforts may achieve comparable results at lower cost. It concludes with an assessment of some of the drawbacks and limitations of the "crowdsourced" approach. II. POLICY BACKGROUND: THE OPEN ACCESS IMPERATIVE A. Open Access to Scholarship "Open access," in the sense of making documentary materials available over the Internet for reading and copying without charge, (8) is an emerging phenomenon in the legal academy. In the legal academic community, the "open access" label is associated primarily with free distribution of scholarly works. The discussion has revolved around whether to improve access to faculty scholarship, how best to do so, and what it might mean for the traditional legal publishing paradigm. (9) 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). …