Communications of the ACM

Like the wave/particle duality of light in modern physics, perhaps it makes sense to regard software as both a “work” and a service; Figure 2 outlines the shared and unshared characteristics of these kinds of things.

Software programs share characteristics with both books and instances of service delivery. Like books, they are essentially textual works of authorship, fully written in advance of their use; the author is not present at the time of use. Like services, they can be dynamic, bidirectional, and generative (such as by producing case-specific answers and documents). Unlike both, programs operate as machines, with automated behavior, and are rule-governed and deterministic.

Any of these modes of communication can be used for the transmission of knowledge, guidance, opinions, and expertise. The content being delivered can be “neutral” or tilted in favor of a particular kind of party or point of view.

Programs as texts. When in use, software applications typically involve no contemporaneous human involvement by their authors. Users interact with pre-written code, with no other human interacting with them as they do so.

Programs are special forms of words and numbers, textual objects that instruct machines how to behave. Any program can by definition be expressed textually. You can think of them, as hypertext pioneer Ted Nelson put it, as “literary machines.” 8

All outputs of an automated legal-
assistance system are also in the form
of textual speech acts. Delivering a
document someone can download is
not meaningfully different, except in
terms of convenience, from presenting
content that in effect says, “Here are
the words you need, in this order.”
That is, these systems not only emit
texts, they are texts.

While debate among legal scholars continues as to whether the First Amendment extends to “symbolic” speech like flag burning, 10 there is little doubt it protects written texts. If I have the right to share the text of a program with others, and they would commit no offense by compiling and running it, why should I not have the right to run the program and give them access to it?

The question of whether First
Amendment rights extend to computer
code has arisen in cases involving pub-
lication of decryption algorithms; for
example, “[C]omputer source code,
though unintelligible to many, is the
preferred method of communica-
tion among computer programmers.
Because computer source code is an
expressive means for the exchange of
information and ideas about computer
programming, we hold that it is pro-
tected by the First Amendment.”r

legality Broken

Like the world that inspired gamers in Jane McGonigal’s 2011 book Reality is Broken, 7 the legal system in many countries is broken in many respects. Millions of people with pressing legal needs go without help. Courts are underfunded and overwhelmed. Many lawyers are unemployed or underemployed. Some law schools are struggling to survive. Recent law graduates are drowning in student loans.

Forbidding distribution of self-help legal software is not only of dubious wisdom as social policy, it is offensive to First Amendment values. It is difficult to make a principled case for suppressing freedom of expression about how the law works.

Free expression by definition need not be “authorized.” Honest attempts to transmit knowledge about how the law works should not be suppressed, at least when done in ways that do not impersonate trusted lawyer/client relationships. Free citizens should not be required to have a license in order to express their understanding of how the law works or to sell or give away such expressions.

Coded law is not something, like hate speech at a military funeral, we should have to tolerate due to concern for higher values. It is an affirmative good we should embrace.

It is in the enlightened interest of lawyers, as well as the best interest of society in general, to enable programmatic expression of legal knowledge. We should be free to write code, run code, and let others run our code. If concerned citizens, law students, and entrepreneurs want to create tools that help people access and interact r See Junger v. Daley 209 F.3d 481, 484-485 (6th Cir. 2000)

with the legal system, the government should not get in the way.

Are citizens at liberty to create and share software that helps others understand and interact with the legal system? Are we free to code the law?

We certainly should be.

acknowledgments

Research for this article was partially underwritten by LegalZoom.com. I am also grateful to Pamela Samuelson and Laurence Tribe for their helpful suggestions and reactions.

References

1. Dyson, g. Turing’s Cathedral: The Origins of the Digital Universe. Pantheon books, new york, 2012.

2. grossman, m. and cormack, g. technology-assisted review in e-discovery can be more effective and more efficient than exhaustive manual review. Richmond Journal of Law and Technology 17 (2011), 11–16.

3. kimbro, S. Virtual Law Practice. american bar association, chicago, 2010.

4. lanctot, c. Scriveners in cyberspace: online document preparation and the unauthorized practice of law. Hofstra Law Review 30 (2002).

5. lanctot, c. Does legalzoom have first amendment rights? Some thoughts about freedom of speech and the unauthorized practice of law. Temple Political & Civil Rights Law Review 20 (2011).

6. lauritsen, m. The Lawyer’s Guide to Working Smarter with Knowledge Tools. american bar association, chicago, 2010.

7. mcgonigal, J. Reality Is Broken: Why Games Make Us Better and How They Can Change the World. Penguin Press, new york, 2011.

8. nelson, t. Literary Machines: The Report On, and Of, Project Xanadu Concerning Word Processing, Electronic Publishing, Hypertext, Thinkertoys, Tomorrow’s Intellectual Revolution, and Certain Other Topics, Including Knowledge, Education, and Freedom. mindful Press, Sausalito, ca, 1981.

9. oriola, t. the use of legal software by non-lawyers and the perils of unauthorized practice of law charges in the united States. Artificial Intelligence and Law 18, 3 (2010), 285–309.