By Sarah Weld
In recent years, state and local government officials have introduced copyright restrictions that make it harder for people to access and understand the very laws that affect their lives — even though the public’s right to those laws is firmly rooted in cases dating back to the 1800s.
Working to keep laws free and accessible to the public, the Samuelson Law, Technology & Public Policy Clinic celebrated an April 2020 Supreme Court ruling in Georgia v. Public.Resource.Org that Georgia cannot claim copyright in its annotated legal code. To help ensure that Georgians can easily consult state laws on legal issues like traffic tickets and child custody, the clinic had filed an amicus brief on behalf of four library associations, arguing that the government edicts doctrine (which establishes that the law belongs to the public domain) is crucial to libraries’ mission.
Now, led by Director of Policy Initiatives Jennifer Urban ’00, Teaching Fellow Juliana DeVries ’17, and students Jennifer Hewitt ’22 and Blaine Valencia ’22, the clinic is again working on behalf of Public.Resource.Org — this time asking the California courts to remove copyright restrictions from jury instructions.
“Jury instructions are the law that the judge reads to the jury before they go to deliberate,” Urban says. “They are the public experience of the law — what juries use to judge their peers, to decide whether to send them to prison, or whether to impose civil liability. Jury instructions are basically the public’s version of the law.”
Carl Malamud of Public.Resource.Org, who has made it his mission to ensure the law everywhere is fully accessible to the public, says, “This is about a very fundamental issue. You can’t enforce the rule of law if people don’t know what the law is.”
The clinic’s proposal to the Judicial Council, which controls California’s courts, asks it to remove all copyright language from the official jury instructions — arguing that they do not qualify for copyright protection because they are not original enough and law is not copyrightable.
Nearly 500 individuals and organizations signed on to support the proposal, including 12 law student organizations, 120 law students, and 342 law professors, librarians, and legal practitioners. Other prominent supporters are Berkeley Law’s East Bay Community Law Center, the San Francisco Public Defender’s Office, the State Office of the Public Defender, the Habeas Corpus Resource Center, the California Appellate Project, and 11 public interest organizations that include Public Citizen, the First Amendment Coalition, and the Electronic Frontier Foundation.
Noting that limited access to jury instructions unfairly affects many, including people representing themselves in a post-conviction case, DeVries says, “Often those would be incarcerated persons who are trying to get themselves back in court, usually on their own without access to the internet and a robust legal library. That’s why unfettered public access to jury instructions is vital for that group in particular.”
“If you are incarcerated, you don’t have access to the internet, so you can’t go on the website and download the instructions, and having to buy a $300 book is likely going to be completely out of reach,” Urban says. She adds that criminal defendants, attorneys, journalists, students, and others also lose out when they can’t easily read the instructions.
The COVID-19 pandemic has made this issue even more urgent, as access to legal materials has grown more difficult than usual, with limited to no public access to courts and law libraries.
Because jury instructions directly affect every aspect of civil and criminal trials, particularly strategies for appealing a case, says DeVries, the restrictions on access are especially troubling.
“Jury instructions are an essential piece of how our democracy functions,” Valencia agrees. “It might just be words or a book but it really is determinative of how anyone should be able to understand big legal questions.”
In just 14 weeks, Hewitt and Valencia researched and wrote the proposal, led meetings, consulted with experts, and recruited all the student supporters. Both say their intense experience was well worth it.
“We really got to flex some different lawyerly muscles that I’m not sure we would get to later on in our careers,” says Hewitt, who adds that the clinic work featured a unique opportunity for much more direct client contact and regular feedback. “It required a lot of creativity in crafting the arguments, especially with our additional copyright doctrine ideas and how we were going to deliver them.”
“I came into this whole clinic experience thinking of it as task-oriented. Instead, we had the opportunity to take full charge and craft our project in the way that we wanted to,” Valencia says. “This was absolutely a thrill of an experience that I feel very honored to have been a part of.”
Malamud, who has partnered with other clinics in fighting for public access to the law, says, “I was blown away by the work Blaine and Jennifer did and the support they got from their faculty at the Samuelson Clinic. This is one of the best pieces of work we’ve seen from a clinic program. Not only did they figure out how to present our issue to the Judicial Council by using their own rules, they got hundreds of people around the country to weigh in, supporting our petition.”
One of those supporters is the Electronic Frontier Foundation, a nonprofit that defends civil liberties in the digital world. Legal Director Corynne McSherry says the clinic’s work on projects like these is crucial to supporting organizations like hers with ambitious missions and limited resources.
“I know the work they produce will be fantastic. Full kudos to this particular group of students, but I also just want to give kudos to the clinic as a whole. It is always a pleasure to work with and the work quality is always excellent,” McSherry says. “Having clinics like this that we can partner with and trust makes an enormous difference.”