Public Information for All: An Interview with Carl Malamud
LJ talks to the public information advocate and founder of Public.Resource.org about barriers to access, trends in copyright, potential legal fixes, and where libraries fit into the puzzle Nov 1, 2010Photo courtesy of James Duncan Davidson and O'Reilly Media
Since the early 1990s, Carl Malamud has made it his business to return to the public what is rightfully theirs: free access to public information. Despite legislation that mandates such access to government information, some categories of information have been excluded, notable among them court opinions (with the exception of the U.S. Supreme Court) and state laws. Working most recently through his foundation, Public.Resource.org, Malamud is spearheading several initiatives to digitize or otherwise make government information available. Some of his most recent initiatives include digitizing government videos available from the National Technical Information Service (NTIS) and National Archives (NARA) and making them available through the Internet Archive and YouTube, freeing fee-based court decisions available from PACER (Paper Access to Court Electronic Records), and bringing Oregon State information into the public domain. LJ spoke to Malamud recently about some of these initiatives.
DR Your recent work on legal information has connected you to AALL (the American Association of Law Librarians). In what other ways do you collaborate with librarians?
CM We work with a lot of government documents librarians and special libraries because one of the things we look at are technical standards from ANSI (American National Standards Institute) and building codes and things like that. I work particularly closely with Brewster Kahle [of the Internet Archive], who is, of course, a librarian these days. So I think the issues of general interest are making government information more widely available, which is pretty much what we do...there’s a lot of parallels with the work that librarians do there.
There’s a gray area where public access suffers when things are either outsourced or contracted by the government to private entities, whether it’s for legislation or other projects. One example of such a gray area is Freedom of Information Act (FOIA) requests for information held by private entities working under government contract. How do you view that, and how does that hinder public access?
Well, it’s a huge problem. Access to the law in particular in the United States is a $10 billion a year industry, and it’s a very inequitable system in which government lawyers and solo practitioners and a lot of different groups don’t have the same access to the legal materials that those who are more well heeled have. And it’s a huge issue for innovation—it means that a young start-up can’t really get into the business of providing a better kind of legal information or even more general information—but it’s also a problem of justice and democracy.
There are instances in which government ought to be able to produce things, and perhaps they’re not broadly available or there are restrictions on use, although I tend not to favor those arrangements. But when it comes to things that have the force of law, which is one of the prime areas where we subcontracted out the kind of official reporting of the court relationship or other relationships, then that’s a huge problem. It’s certainly contrary to Supreme Court and other public policy pronouncements, ones that go back to the founding of the republic.
What kind of solutions do you see? Is this just a question of changing the law?
The whole Law.Gov movement is evolving—we did workshops in over 15 locations around the country at the beginning of this year, including many of the top law schools in the country, like Harvard, Stanford, Berkeley, and Yale. The point of that exercise was to explore the proposition that if a material is to be considered primary legal material, it would have the force of law issued by a governmental body or somehow blessed by a governmental body as being a law of general applicability, and by that we mean Congressional hearings, as well as the laws, because you need the hearings in order to interpret the intent.
Maybe 100 years ago saying any college kid ought to be able to download the entire corpus of the canon of American law, maybe that would have been unreasonable, but in today’s Internet world, it isn’t unreasonable—it’s important that we provide that level of access. So Law.Gov is all about what it would take to institute this principle into the public policy framework at the local, state, and federal levels across all three branches, that if it’s a law, it must be available and must be available in a somewhat clueful manner. It should have metadata, document IDs, and proper format, and privacy should be protected—all the things that we associate with modern electronic data streaming.
Do you see a role for libraries?
The availability of materials and the parceling out in the public domain is a huge issue for libraries, not only for government documents generally and legal material specifically but everything from the letters of Ben Franklin to all this wonderful corpus of materials that has been issued but is no longer available, the problem of orphan and fallow works, for example, the problem of official vendors of materials that don’t allow knowledge to be spread. Librarians should and must be jumping up and down and pounding the table and saying, “This is a huge issue.”
The orphan works problem is a good example. There has been a lot of noise about orphan works in Washington, DC, about how there’s materials that were produced that are not available, that we can’t scan and make available because there’s potential copyright issues. And this vacuum of leadership in Washington, DC, has led private parties, like the Internet Archives, Google, and others, to wing it to try to figure out what to do. But it’s an area where librarians should be telling members of Congress and the executive branch leadership that this is a tremendously important issue. I don’t think I’ve seen that happening. I haven’t heard yelling and screaming in sufficient volume to impress people in...Washington, DC. The other thing that I think librarians really need to be aware of in the legal world is the amazing amount of money that libraries spend with the vendors. While budgets are being cut, it’s still a huge business, and I’m not convinced that the libraries have wielded sufficient muscle against vendors, such as journal publishers that have in a sense raped and pillaged your budgets. It’s sad to see how much money is spent on some of these resources and then how many locks are put on them at the same time. Not only do you pay big bucks to get this stuff, you can’t necessarily make it available.
Do you think ultimately that the Google Books Settlement will help make more information available, or will that again set up some monopolies and barriers to access?
There’s a tremendous policy vacuum in Washington right now. The reason we have the Google Books Settlement is because the Library of Congress and Smithsonian and National Archives and Government Printing Office have not exercised national leadership on these issues, and Congress certainly has not. So Google Books is a temporary thing—the settlement, not the scanning operation.
I’m not a huge fan of the agreement. The authors, the Authors Guild, and the publishers were extremely opportunistic and are attempting to put money in their pockets that comes from people like me who wrote eight books and has absolutely no desire to get a royalty stream from them once they’re out of print. The current settlement is oriented toward folks who are building another one of these big fat nonprofits, basically large salaries, huge revenue streams.
Ultimately, it’s an issue in Washington. Google’s doing ten million books, then, jeez, why isn’t the Library of Congress doing 100 million or a billion books? Why aren’t it taking the lead and digitizing this. And why isn’t the Librarian of Congress going to the committees in Congress and saying there is an orphan works and particularly a fallow works problem—this issue of works that are just sitting out there, not getting used at all, not on the market, you can’t find the things; you’re lucky if you can go into a library and get them? In a few cases you can, but many of these works should be totally liberated and in the public domain as they were meant to be when we passed the copyright acts. Because remember that’s the whole point of the copyright acts: you can make some money off this, but then we all get it when you’re done.
The whole point of copyright is to promote the public domain. That’s not an incidental side effect. That is the reason the Founding Fathers put that in the Constitution.
This administration started with the Transparency letter, and then we had a new U.S. archivist. Do you feel that Washington is being more accommodating to public access, or is this just something that started out and seemed to fade?
No, no. Clearly it’s a huge difference, a remarkable difference since certainly the Clinton administration wasn’t even that open, and after that things closed significantly. No, [David] Ferriero is wonderful at the archives. He’s doing a great job. There’s a technically astute team in the White House, and that’s the first time in a very long time we’ve seen that. The Federal Communications Commission and other agencies seem to be on fire in terms of revamping how they do business. So it’s a real change.
Whether it will go far enough to be a lasting change, or whether it’s something that gets reversed in a few years is the real challenge. And that’s always the issue in Washington: bring this far enough so that you can’t really wind that clock back.
What would it take them to bring it far enough? Do you have specific legislation in mind, laws that need to be changed, such as Title 44?
There are three main things that need to be done in Washington. The first is to finish the open government revolution. And that means things like fixing the FOIA laws. If you release a FOIA document, it shouldn’t just be a piece of paper to the requester; it should also go on the government website for other people to look at.
The FOIA laws need to be obeyed. The one- to two-year delay in responding is just ridiculous. The bulk data provisions of the open government plans need to be beefed up significantly. There’s a lot of pointers to existing data, but there’s still a lot of stuff that’s getting sold on DVDs or big databases that aren’t available. For open government, they need to begin moving government up the food chain to be using modern bulk data standards, such as authentication, metadata, document IDs, and things of that sort.
That’s just one piece of the open government revolution. I also believe strongly that government should be taking a far more active role in digitizing, so [we need] a national scanning initiative. That means a minimum of $250 million a year for the next ten years—$2.5 billion—which is not that much money in Washington, DC, terms.
The key to that is forcing the Smithsonian, National Archives, Library of Congress, Government Printing Office, National Library of Medicine, and National Agriculture Library to work together on a coherent something for digitizing their back file.
That also means organizations like the Smithsonian have to begin obeying the law when it comes to copyright. The Smithsonian asserts copyright over a large swath of materials that it is the custodian for, and many of those materials are in the public domain, and as an agency of the federal government under Section 105 of the copyright act, the Smithsonian is not supposed to assert copyright, yet it does. That’s meant a huge lockdown on just an amazing archive of photos and videos and pictures of patent models and other items in there.
The third thing that needs to happen in Washington is there’s been a process of capture by the Beltway bandits that has led to these billion-dollar boondoggles in the way we build computer systems. The electronic records archive system at the National Archives is a good example of that. That’s a half-billion to a billion-dollar computer system.
But government is rife with these, for example the sentinel system from the FBI. There needs to be a fundamental reboot in how we build and review our computer systems. Vivek Kundra, the White House Chief Information Officer, has sort of begun that, but he’s done it at the executive employee level, right? It’s him and a half dozen people. They’ve been doing some good work, but I think we need to raise the profile of that activity to something almost akin to the Civil Service Commissions of the late 1800s, in which people like Teddy Roosevelt basically went in and did an all-hands-on-deck and said, “From now on, federal employment shall be based on merit, not on patronage.” We need to build our computer systems open as opposed to making them a funnel of money to companies like Lockheed Martin.
We’re talking $81.9 billion just this year in information technology spending costs out of Washington. This is real money. When something like [the Electronic Records Archives] doesn’t work at the National Archives, not only did we waste a billion dollars, we’ve crippled the agency because these are mission-critical systems that influence how government works.
And so I think if you look at gridlock in Washington, part of it is this big partisan divide. But part of it is just way past partisanship. It’s simply we’re not operating our trains very well. We need to change that culture of how we build these very fundamental tools that government needs to operate.
Do you view freedom of and access to information as an American value, or is it a universal human right?
Oh, [access to knowledge is] a universal human right. Our copyright laws are clear that works of the federal government shall be public domain. In other countries you don’t have that clear statement of policy. But it’s a huge international issue, of the biggest import in places like India and places in Africa. Medical doctors, for example, who are based in Palo Alto and have access to Stanford’s medical library in a sense don’t care about this as much as some guy in the middle of the Niger desert who is trying to diagnose some disease that he has never seen before.
Access to this information is of particular import across economic divides and also across cultural divides. One of the great potentials of the Internet is truly to make this information much more broadly available and not have it necessarily be dependent on physical location or membership in a club. Because, remember, at many universities you can only access that university library if you’re registered. If you’re just a plain old citizen, it’s not there. And many of our online systems, like JSTOR, are set up that way, [doing] an arguably good job of digitizing some material, but it’s only available to the rich kids who are in their club. They didn’t figure out how to make it a broader resource.
You have to remember that not everybody’s got the Internet, and they certainly don’t have it in an equitable way. If you look at the maps of broadband dispersion in our inner cities versus our rich suburbs, there’s a remarkable difference in who has access to this.
It’s one of the great leveling factors in that if somebody doesn’t have the money to go to a fancy school or to get all sorts of advanced training, you can at least go on the net, and it’s remarkable how much is there. That’s how the Internet was built, right? It was partly these scientists in Bell Labs and the fancy computer companies, but there were a whole bunch of freelancers who came in from left field and read the Internet RFCs and then made immense contributions to the architecture of the net. If it wasn’t for opinion like that, we wouldn’t have the Internet we have today.
| Author Information |
| Debbie Rabina, Ph.D., is Associate Professor at the Pratt Institute School of Information & Library Science, New York. She is currently serving on the Depository Library Council |
