[The appeal was heard by the Oslo court on Aug 30/31, a verdict is expected in September 2018]
[Court recordings from the two-day session are available, in Norwegian]
In 1994, I was working on two projects in the office I shared with Tim Berners-Lee at CERN in Switzerland. One was CSS, a style sheet language for the web. Tim was in on this, and so was the small (but quickly growing) web community. The other was more clandestine, something I did after hours: I published the laws of Norway on CERN's website!
In search of free content for the early web, the laws were a good candidate. In Norway, they are exempted from copyright, but a semi-commercial governmental foundation called Lovdata charged a $1-per-minute fee for access to the laws. For lawyers, the fee was a bargain. For normal people, it was a barrier. In practice, it prevented people from having access to the laws they already had paid for through taxes. Our volunteer project changed that. We typed and scanned laws to a point where 60% of the laws were available, eating into my hard disk quota on the CERN servers.
One evening Tim came into the office. He looked over my shoulder and asked what I was doing. A bit sheepishly, I admitted to having published the Norwegian laws on CERN's website. «Oh, that's a good use of the web», he said. «Do you need more disk space?». Tim always wanted his invention to be used for the common good.
After some time, Lovdata came to their senses and and published the laws on the web, for everyone, for free. This was a better solution than our volunteer project; Lovdata are very good at maintaining electronic up-to-date versions of Norwegian laws. In fact, a law will not take effect until it has been published electronically by Lovdata.
Laws, however, are only part of the story. You also need to know how laws are interpreted by the courts, and this is documented in their decisions. In particular, Supreme Court decisions are important as they establish precedent. Last year, I was happy to learn that another group of volunteers had started a project, called rettspraksis.no, to openly publish Norwegian court decisions. Like laws, court decisions are exempted from copyright in Norway. It seems like a project everyone should rejoice in: the judges get widely published, the taxpayers get something back from the legal system they pay for, and everyone learns more about how our society works. There are some privacy issues; some court decisions must be anonymized before publishing.
I was happy to help the project by borrowing old Lovdata CD-ROMs in the National Library of Oslo. The old CD-ROMs are important for two reasons. First, they contain thousands of court decisions in one place and they are easy to read. Second, they have a definitive date of issue. While laws and verdicts are exempt from copyright, the EU has a directive on the legal protection of databases, which introduces a 15-year protection for databases. Normally I would not call a stack of documents a «database», but it may be argued that the collection of decisions is protected by the directive. However, a CD-ROM from 2002 is definitively not protected.
Lovdata has dropped their $1-per minute fee for laws, but they have built a lucrative business model selling web access to non-copyrighted court decisions. They even use CSS for this. (I don't charge them.) Individuals must pay $1,500 per year for access to court decisions. So when a new website comes along and offers free access, Lovdata has a huge economic incentive to try shut it down.
And this is exactly what Lovdata did when they sued me and the founder of the rettspraksis.no project. On Thursday the 31st of May, the lawsuit was sent to the Oslo courts and in less than 24 hours the judge had issued a verdict (PDF, in Norwegian) which closed down our site.
This is quite shocking. First, I'm very surprised that Lovdata didn't contact us to ask us where we had copied the court decisions from. In the lawsuit, they speculate that we have siphoned their servers by using automated «crawlers». And, since their surveillance systems for detecting siphoning were not triggered, our crawlers must have been running for a very long time, in breach of the database directive. The correct answer is that we copied the court decisions from the old discs I found in the National Library. We would have told them this immediately if they had simply asked.
Second, I find it shocking that the judge ordered the take down of our website, rettspraksis.no, within 24 hours of the lawsuit being filed and WITHOUT HEARING ARGUMENTS FROM US. (Sorry for switching to CAPS, but this is really important.) We were ready and available to bring forth our arguments but were never given the chance. Furthermore, upon learning of the lawsuit, we, as a precaution, had voluntarily removed our site. If the judge had bothered to check he would have seen that what he was ordering was already done. There should be a much higher threshold for judges to close websites at the request of some organization.
Third, the two of us, the volunteers, were slapped with a $12,000 fee to cover the fees of Lovdata's own lawyer, Jon Wessel-Aas. So, the judge actually ordered that we had to pay the lawyer from the opposite side, WITHOUT HAVING BEEN GIVEN A CHANCE TO ARGUE OUR CASE.
Now, Norway also has some good and smart lawyers. One of the best is Halvor Manshaus, renowned for having defended Jon Lech Johansen, better known as «DVD-Jon». I followed that case in the courtroom in 2002 and 2003. From the outset, the case seemed bleak for Jon. The legal establishment sided with the film industry, and the Minister of Justice even singled out the 16-year old Jon as a threat. But Halvor, combined with Jon's innocence, turned the case and Jon was aquitted. Twice.
Like Jon, we are idealistic volunteers with the legal establishment against us. I was therefore happy when Halvor eagerly took on the job of defending rettspraksis.no. We believe it's an important battle to ensure freedom of speech, public access to public information, and a just system of law. The appeal (PDF, in Norwegian) that Halvor and his good colleagues at Schjødt have written is excellent. It tells the true story of how and why rettspraksis.no was opened, why it's legal, and why it should not have been closed by the judge. We expect there to be a hearing soon. [The appeal was heard by the Oslo court on Aug 30/31, a verdict is expected in September]
When I travel, I often ask local web enthusiasts: are the laws of your country available to read, for free, on the web? I believe this is a good measuring stick of how well a society functions. All countries have the resources to make their laws available on the web, there is simply no excuse for not publishing them. I will start asking a second question: are the court decisions from your Supreme Court available on the web?
There simply isn't a good excuse for keeping them secret behind paywalls.