Oregon State Bar Bulletin — DECEMBER 2010

Law & Life

Gnu Juris Penguinus
By Steven A. Reisler & Elaine Y.L. Tsiang

Electronic court filing. Paperless record management systems. Twittering jurors. Web-surfing secretaries. Web-surfing judges. Thumb drives, gigaflops and terrabytes. Cell phones smarter than law partners. LANS, WANS and Wifi. Welcome to the brave new world of the digital Information Age.

But whatever happened to that ballyhooed “efficiency dividend” that was supposed to make toiling in the vineyards of the law more modern and less medieval? Like the so-called “peace dividend” that failed to materialize at the end of the Cold War, was the “efficiency dividend” of the Information Age a mere chimera of office technology marketing where the more you bought, the more you had to buy?

Like a carrot on a stick, the latest and greatest new releases of software dangle before your eyes, always promising the law firm efficiency nirvana that seems just within reach. But always it requires new computer hardware, in-house retraining and outside contract expertise as you migrate from your ‘outdated’ computer system (only a few months old!) that you have only just managed to stabilize from last year’s latest and greatest software release. And although you really would rather not go through another upgrade nor pay more licensing fees, you are told you have no choice. You have no choice because your sole source for software support could, at any time, abandon the software systems you became used to, leaving your law firm to gradually grind down like an old Studebaker that nobody services anymore and for which you cannot buy spare parts.

While work expanded, while the stock market rocked and the good times rolled, during those halcyon years of fat fees and right-side-up pyramids, the law partners hardly noticed that their anxiety-to-profit ratio (“A2P”) was steadily increasing. Notwithstanding office computerization, information technology, costs continued to rise as your loss of control over the practice of law also continued to rise. Thus, despite all the new technology, chances are that even as your law practice became more computerized, you were putting in more effort but earning no more profit.

Or, to paraphrase the old beer ad, your law firm suffered more waste and less billing.

This is not the way it was supposed to be. So long as the economy was booming, whether “information technology” was really helping your law firm’s bottom line was obscured by lawyer ignorance, lengthening work hours and the fear of appearing ignorant by not keeping up with the Jones, Jones & Joneses law firm next door. Thanks to today’s hard core recession, however, lawyers are bound to ask themselves the fundamental question: is your law practice really easier, more efficient and more profitable since the advent of information technology?

This is obviously a rhetorical question because once you’ve gone “high tech,” you can no more go back than you can return to parchment, powdered wigs and quills. The solution, therefore, cannot be to literally toss your office computers and software out the windows along with your information technology staff.

Or, In a Manner of speaking, Is That the Solution?
Lawyers are probably the last to know this, but there is a parallel universe of computer technology out there, a universe that, so far, has had little intersection with the law. Free and Open Source Software — or FOSS – the stuff that runs much of the Web, the Internet, growing segments of telecommunications, commerce and the military — is a type of computer code that is both “free” in the monetary sense and “free” in the sense of Lincoln’s Emancipation Proclamation. Although only a tiny percentage of personal computers run Free and Open Source Software in the U.S., it has already taken root in legal systems in Asia, Europe and South America. If anything, the trend may be accelerating. Free and Open Source Software is the underpinning of enterprises like Google and Amazon; it is used by municipal governments around the world; it shows up in some of the most sophisticated cell phone systems available today; it runs a large percentage of super computer systems; and, we suspect, Free and Open Source Software is also used to control high tech weapons systems (for better or for worse).

Translating Computerese into Legalese
Many patent lawyers and those admitted to the bar within the last 10 years do not need a refresher in law technology. The new generation of lawyers graduated carrying laptop computers. They eat, drive and sleep while texting on their Androids and iPhones; they do not know what a “postage stamp” is; and they carry their files to court in thumb-sized digital memory sticks rather than lug around litigation briefcases. However, if you remember what a typewriter is, if you recollect when legal research meant something other than “Googling,” if your idea of social networking is the golf course, then you probably need a succinct primer in 21st century law practice.

True, the modern firm is still based on proficiency in the law, how to turn a phrase, how tell a story and how to coerce, cajole, reason and persuade. Today, however, no law firm — not even the sole practitioner — can function without some basic pieces of equipment and some core software.

The Sovereign Law Firm
Most lawyers recognize that within the narrow range of Apple or “Wintel” machines, they can choose from among different manufacturers of equipment. Few lawyers recognize, however, that they have a much more profound choice to make when it comes to software. The difference between Free and Open Source Software (“FOSS”) and the more common, profit-based proprietary software that most people are familiar with is the difference between sovereignty and dependency. With proprietary systems you have to use what everyone else uses. You have to license it, update it, maintain it and chain yourself to it. The most commonly known type of FOSS is an operating system is that based on GNU/Linux. With Free and Open Source Software, you pay no licensing fees, updates are discretionary not obligatory, updates do not cost you anything, maintenance is provided free of charge, and you are always at liberty to change, abandon, reject or accept whatever digital upgrades you like.

Although we know that lawyers have loftier goals than just making and saving money, the prospect of not being forever maneuvered into purchasing more and more and more computer software and hardware will undoubtedly appeal to the occasional bean counters in the ranks of attorneys.

Hacking Code and Hacking the Law
It is Free Software’s other notion of “freedom,” however, that should resonate most powerfully with the lawyer class. Indeed, the reason why “geeks” (the digital cognoscenti) often prefer Free and Open Source Software is because they can use it, fix it, customize it, improve it, give it to their friends and just plain have fun with it without having to, ahem, mess around with a bunch of suits asserting “intellectual property rights” in their endeavors. Geeks call this “hacking.”

Hacking, despite having the same root as the term “hack job”, carries none of the negative baggage. Hacking, moreover, is no more a job than is the fine art of practicing law. Software hacking, like “hacking the law,” is an act of creativity intended to accomplish a pragmatic end. Hackers throw their work product out into the programming community on the net, which vets it mercilessly.

Programmers tend to be very direct: the good stuff gets adopted and accolades are showered on the authors. The bad stuff gets tossed into the bit bucket. This is also the way the common law is made.

Free and Open Source Software is as much a movement as a product. It is a veritable meritocracy where few have met one another and each takes pride in helping everyone to help themselves. There are millions of FOSS programmers worldwide. As with lawyers, programmers gain a reputation for their creativity, their hard work and how much they help others to understand, debug, correct and improve their code. A record of all this, like the history of case law you have helped to make as an attorney, is plainly annotated into the source code (the human-readable text of the logical instructions), for anyone to see.

Like a dues-free worldwide bar association, Free and Open Source Software developers around the word have formed a loose-knit, decentralized international community that makes, maintains and contributes back to itself an ever-growing repertory of programs that work compatibly with each other as a system for operating computers. Each contributes to this online community according to her abilities and each uses what is made available according to her need.

Software Commons and Legal Commons
Now if this all sounds vaguely communistic, know that many FOSS programmers would as likely rebel against a Stalinist five-year plan as against a Wall Street plan to seize and control the digital end product of their intellect.

Rather, think “commons,” for that is what the FOSS community most closely resembles. Its code of conduct,1 which the community itself enforces, resembles the pre-codified “law of the commons,” like the Magna Carta and the Forest Charters of 13th Century England.2 Indeed, the commons is the antecedent for those who toil in the vineyards of the law, whence the eponymous Common Law that underlies our system of jurisprudence.

So, law programmers of the 21st century, meet the FOSS programmers of the 21st century.

Superficially, the digital divide appears unbridgeable: the lawyers — neatly dressed in suits, sociable, verbal, mindful of outward appearances, munching canapés and sipping Chardonnay; the FOSS programmers — über-casual, fiercely independent, dressed in hoodies and T-shirts, mathematical, disdainful of outward appearances, snarfing cold pizza and beer. Nevertheless, lawyers and FOSS programmers have roots grounded in the same sense of the commons. Just as lawyers would think it wrong for anyone to monopolize the law or restrict access to the statutes or bankruptcy code, so do Free and Open Source programmers think it wrong for anyone to monopolize or restrict access to the logical instructions that make computers more useful than paperweights.

Lawyers, FOSS Programmers, You are Cousins and Kindred Spirits. Now, the Question Is, Can You Work Together?
The answer is both yes... and no (an ambiguous response suitable for a profession that thrives in a gray-scale world).

Although FOSS software is sophisticated enough to run a global information system like the Web and reliable enough to operate NASA space probes, it simply was not designed to be “friendly” for computer knuckleheads who don’t know (and don’t want to know) why Gnu is not Unix or the difference between pop corn kernels and Linux kernels or whether KDE is a desktop developer team or a mix and scratch hip hop artist.3

There is a strong strain of do-it-yourself (“DIY”) philosophy in the FOSS community. Whereas all will help you to work out your problems, there is little tolerance for those ignorant by choice. Thus, although there is little a modern computerized law office needs to do that cannot be done using FOSS, the process of customizing software utilities, creating specialized macros, templates and legal applications is more than the typical attorney is able, or willing or courageous enough to undertake.4

In a complex world like ours, of course, this is understandable. The 17th century polymath Francis Bacon was supposedly the last Renaissance scholar who knew it all. Today, the nature of our civilization requires a more specialized division of knowledge and labor. If I cannot in the same day read Plato’s Republic in the original Greek, change my car’s oil, write a Nobel prize-winning novel, compose a Broadway musical score, run a triathlon, harvest my own organic vegetables, walk the kids, help the dog with its homework, and write a dynamite, paradigm-shifting Supreme Court brief, well, then I can hire out what I cannot do and save for myself what we law programmers do best: hacking the law.

In recognition of this reality, the FOSS world is evolving. There is still Debian,5 the digital doyens’ “mother of all distributions,” the root stalk from which many other Gnu/Linux distributions, or “blends,” are descended. There are also many less intimidating distributions such as the “enterprise” editions from Red Hat, or Knoppix, Gentoo, ArchLinux, Red Flag or Ubuntu.6 These FOSS distributions usually contain all the basic application software that lawyers could need.

Bridging the Gap
I was fortunate when I set up my FOSS law firm. Although not a programmer myself, I was well acquainted with someone who was and who bridged the gap between the world of Free and Open Source Software and the world of Free and Open Source Law. In general, what is most lacking for the wannabe FOSS law firms of America are the knowledgeable computer professionals who can help lawyers customize, personalize and, ultimately, make the best use of the FOSS software that is out there.

In a sense, therefore, this article is an invitation for two professional cousins that have so much in common — the lawyers and the Free and Open Source Software programmers — to meet up, hook up and, ultimately figure out a way to do and improve business.

Wait a minute? What d’ya mean doing business? How does a “free and open source software” programmer do business?

Actually, the same way a lawyer does business — getting compensated for using his or her expertise to solve problems, to create solutions and to get things done.

The law is free and open to all, but knowing how to use it, shape it, yes, even how to “hack” it in a client’s best interest, requires years of training and experience to hone your insights. What lawyers offer to their clients is that skill, that expertise. What lawyer has not told some penny-pinching prospective clients that they could represent themselves as easily as they could perform their own brain surgeries? And so it is with FOSS software — you truly can do it yourself, at your own risk, just like a do-it-yourself brain surgery... or you can hire someone who knows how to do it, and just pay for that expertise.

Well, the bean counters snort, so where’s the cost saving?

The cost savings lie in the absence of licensing fees, the availability of help 24/7 from a worldwide network of FOSS programmers, the ease with which programmers can “pop open the hood” of your software to diagnose and repair problems, the greater security, confidentiality and protection FOSS provides from digital evil-doers, and the frequent no-cost upgrades. FOSS also bends over backward to achieve backward compatibility with pre-existing software and hardware. So if a system has worked well for you in the past, then the FOSS world will not force you to upgrade. You can keep using the same old funky system that works for you and that you are comfortable with. You can upgrade now, later. Or never, as you like.

Once you save all that money, of course — altruistic lawyer that you are — because you are unable to make a technical contribution to the cause, then you will at least make an occasional monetarycontribution to the commons of the FOSS community. You can also do what we are doing right here: share your experience and insights with others so that others can share back with us. The simple reason why helping each other and helping the FOSS programmers survive and profit is because it helps you survive and profit. This is true digital symbiosis and the true meaning of the “law of the commons.”

For FOSS programmers who heretofore would no more think of working for a suit than wearing one, the prospect of working out a mutually rewarding relationship with a profession that has, at core, a common heritage and philosophy, is reason enough to rethink their own consulting possibilities.

The rest of the legal world is leaning toward Free and Open Source Software because it makes economic sense while being simpatico with the fundamental concepts of jurisprudence. Soon, even in the U.S., the digital commons will join the legal commons and everyone toiling in the vineyards of the law will be better for it.

Endnotes

1. The legal underpinning of FOSS is the concept of the General Public License (“GPL”) which was originally developed by Richard Stallman as a bulwark against the “enclosure” of the computer software commons. The most well-known of the FOSS operating systems derives from a set of essential software tools developed by Stallman and his colleagues (continuing nowadays as the GNU Project) wedded to “Linux”, the core programs that mediate between the hardware and the software, collectively referred to as the kernel, originated by Finnish programmer Linus Torvald; ergo, the name GNU/Linux as the historically informing appellation recognized by FOSS developers around the globe and the reason for the mysterious herds of Stallman’s gnus and flocks of Torvald’s penguins that decorate the workstations of so many programmers.

2. An excellent discussion of Magna Carta, the law and the commons is set forth in The Magna Carta Manifesto (University of California Press 2008) by Peter Linebaugh of the University of Toledo.

3. Answer: KDE is an international free software development team: www.kde.org/.

4. There are already FOSS lawyers practicing throughout the United States. See, http://opensource.com/law/10/3/community-lawyers. The author’s law practice, for example, has operated for the past six years using only a FOSS word processor, e-mail and web utilities, scanning software, billing and accounting software, image processing and spreadsheet programs, among others. Indeed, in some parts of the world, the use of FOSS software is regarded as a matter of public duty and national sovereignty. http://news.northxsouth.com/2008/11/18/protecting-sovereignty-with-free-software-is-a-good-idea-and-the-duty-of-governments-says-stallman/.

5. See, www.debian.org/.

6. See, www.redhat.com/; www.knoppix.com/; www.gentoo.org/; www.archlinux.org/; www.redflag-linux.com/eindex.html/; www.ubuntu.com/.


ABOUT THE AUTHOR
Steven A. Reisler practices civil and commercial law in Seattle. His website is found at www.sarpllc.com. Elaine Y. L. Tsiang is a FOSS computer programmer and set up Reisler’s law firm to run exclusively on free and open source software.

Copyleft 2010


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