Why I'm Signing the Durham Statement

[I wrote this the day after hosting a podcast with Professors Richard Danner and John Palfrey, authors and architects of the Durham Statement. The podcast can be found on iTunes, here. The transcript of the chat room can be found here. RL]

[In a curious irony, when I logged onto the website to "sign" the statement, I got a 404 error.... Uh, I guess the gods do have a sense of humor! RL]

OK, I'm convinced. I'm going to sign the Durham Statement. But with an asterisk. Here's why.

I fully support all the goals and objectives of 'the open access' movement. I believe that it is critical that as more legal materials are born digital, librarians should be working with content creators (governments, authors, academics, publishers, bloggers, etc.) to be sure that digital information is produced and preserved in systematic, efficient and stable formats. There's a need for that format to be simple, objective and thorough so that software and hardware developers can easily develop applications and search engines that make the material not just accessible, but usable, useful. And, perhaps most important, the formats must be open so that they can be used by developers (of search engines, readers, aggregators, or who knows what kind of tool) for any platform, while at the same time remaining strictly controlled and loyal to established standards. Standards must take into account not only the data itself but its metadata and as well as format.

The desire for an end of print materials is not what's driving the growth in the availability of digital legal information. What's driving its growth are technological developments. Better html, java and Ajax web development tools have made web pages more hospitable for users and developers, and, as a result, more useful for finding, accessing and using information and documents retrieved. Better processing power, bandwidth and storage capacities have made the development and distribution of databases practical, both on the server and user sides. Looking back at history, consumers of legal information have never simply stopped using one format to await the arrival of the next. Any new format must prove itself before it will become the new standard. The same will occur as legal materials transition from print to digital formats. (The question of whether this transition will be total or partial, or somewhere in between - my choice - is beyond the scope of this essay.)

There's also a practical reason for my reservation about the "end of print" declaration in the Statement. By declaring 'the end of print' as an end in itself, I am afraid that it gives too much encouragement to publishers and information creators to put the cart before the horse, and cease printing material before reliable online alternative formats are fully developed. This could lead to disaster in two ways. First, they may move too quickly and develop online tools using new, unproven technologies that may end up making access to the material more difficult than before without refinements and upgrades. And then there's the danger that all early adopters risk: adopting formats that don't survive in the marketplace and may be lost forever.

This is why I object to the language in the Durham Statement that calls for "an end of print publication" of law reviews. In my mind the call is unnecessary, even vacuous. If the printing of law reviews is doomed, it will happen only when there are acceptable substitutes. And not a second sooner.

I'm signing the Statement with the above reservations, and whole-heartedly support it's underlying goals and objectives, (I support AALL, NCCUSL, LIPA and Law.gov, too), the call for the development of rigorous standards for materials that are born digital. I also like the idea that legal scholarship be included in the open access movement. There's great potential to create a fascinating, organic living encyclopedia of legal scholarship.