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[2018-10-22] As Norwegians, we celebrate our constitution and the freedoms it brings on the 17th of May every year. It's a good day to visit the kingdom. It's also a good day to launch a website liberating Supreme Court decisions to the public. At least, Fredrik and I thought so as we raced to finish rettspraksis.no in time for the 17th. What was meant to be a digital civic duty turned into a legal battle when we were sued and a judge shut down rettspraksis.no in less than 24 hours.
The 22nd of October is also a good day. Today, we are extremely proud and happy to bring rettspraksis.no back online after months of legal wrangling. Users will find around 40,000 Supreme Court decisions, which is almost the complete collection. Hooray!
We are missing decisions from 2003 to 2008. Those five years are still dark on our site, but we continue our fight and we are appealing the decision which prevents us from making those years available.
Before discussing the legal basis for our wrangling, it's worth recounting why we are doing this. Laws form the basis of civilized societies. In order for citizens to obey laws, they must also know what they say. This principle is known as «publicato legis». But law-abiding citizens need more than laws; we also need to know how laws are interpreted by the courts. This is what court decisions do, and Supreme Court decisions are particularly important. This is also why laws and court decisions are exempted from copyright – our lawmakers want those documents to be distributed widely, to everyone, for free.
In Norway, a semi-commercial governmental foundation called Lovdata has a de facto monopoly on Supreme Court decisions. Their monopoly is based on having had an encrypted connection into the Supreme Court servers. Lovdata was the only organization granted such access, and up until 2008 all requests from others were denied and referred to Lovdata instead. This seemed sensible at the time as Lovdata was considered to be a government institution.
These days, Lovdata would like to be classified as a private institution in direct competition with private companies. Their alibi for such claim is Rettsdata, a commercial service offered by a publishing house, mostly as an electronic continuation of their paper books on legal subjects. Guess what Rettsdata's source for supreme court decisions is? Lovdata, of course. There are no other alternatives. Lovdata would like to retain their commercial monopoly on public documents acquired at no cost, and they are using aggressive legal tactics to do so.
In May, they sued Fredrik and me claiming that we had siphoned their online database with advanced crawlers. They didn't contact us to check if this was the case. The judge didn't allow any contrary evidence. In less than 24 hours he closed down rettspraksis.no and also ruled that we – the volunteers – should pay the $12,000 fee for Lovdata's lawyer, Jon Wessel-Aas.
In our appeal, we explained that our source is not the online database, but rather a collection of CD/DVDs found in the National Library. In Oslo, anyone can walk into the National Library and ask to use these discs which were issued in the 1990s and early 2000s. Given that court decisions are exempted from copyright, it seems logical that you can copy decisions from these discs and make them available to all, for the common good.
This would indeed be the case in most parts of the world, but Europe has a special rule which complicates things. The so-called database directive introduces a 15-year protection for databases.1 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. If you accept this argument, a disc older than 15 years does not have any protection.
Over the summer, Lovdata reluctantly accepted that we had, indeed, used discs and not crawlers when we created rettspraksis.no. Still, they claimed, the discs were merely snapshots of their online database. And, since the online database is changed on a regular basis, it will never get to be 15 years old! So, therefore, even a disc older than 15 years is protected by the database directive!
Such ridiculous claims strengthened our will to fight.
After three months, the Oslo court heard our case in August. We spent two days in court and recorded everything that was said. (It's all encrypted in Norwegian, I'm afraid.) The court case started splendidly with Lovdata withdrawing most of their previous claims and only seeking to «protect» the last 15 years of court rulings. Given this reversal, we had freed 166 years of court decisions in the first hour! And, as we have another legal source from 2008 and onward, only the years 2003 - 2008 were contested in court.2
Our lawyer, Halvor Manshaus, renowned for having defended DVD-Jon, presented strong arguments for why supreme court rulings must be publishable. In short, the non-copyright status of court decisions must trump the database directive. The fact that Lovdata acquired these decisions as a government-sanctioned monopoly means they must also let others republish them. Furthermore, it seems unfair for volunteers to pay Lovdata's legal bills when we essentially won the case by liberating 166 years of court decisions, with only 5 years left in the dark.
The judge pondered over these questions for weeks and when the decision became available, Lovdata quickly published it. For free, for all. Well done!
Unfortunately, the judge disagrees with us. He finds the database directive to be stronger than other concerns, and since we also extracted rulings from a 2005 edition – which only soon will turn 15 – we lost the case, in his view. The fact that Lovdata reduced their claims by magnitudes in the first hour seemed to have no impact. Lovdata asked that we cover the cost of their lawyer, and this was granted. If this decision stands, we must pay $40,000 to Lovdata.
This is quite surreal, as we essentially have won the case. We have a fundamental belief in the legal system, but we disagree with this judge. We have therefore appealed the ruling.3 Our appeal is supported by the Norwegian Union of Journalists (Norsk Journalistlag) and the Association of Norwegian Editors (Norsk Redaktørforening). We hope and expect that a higher court will reverse the decision.
Along with the relaunch of the web site, we have started a crowdfunding campaign. Contributions will help us in the appeals process, and will also be used to further develop rettspraksis.no. We have taken delight in suggesting some contribution levels:
- 404 kroner: your official title will be «HTTP supporter» and you get to be invited to a sailing trip in Håkon's boat, also named 404. The sailing trip cannot be offered if the boat is seized by the government before the summer.
- 1814 kroner: our constitution was signed on the 17th of May, 1814. Important symbolic number around here. USD $1776 would also work.
- 16125 kroner: this is what Lovdata charges for electronic access, for one person, for one year, including VAT. We think it's a better investment to support rettspraksis.no which will live much longer.
- 40000 kroner means 1 krone per court decision we publish. Also, you are invited to a dinner. With the right to give a speech, and to defend yourself under cross-examination!
We are thankful to many people. International attention from Lawrence Lessig, Carl Malamud, Cory Doctorow and Mathias Schindler has been important. Fredrik Drevon, Sarah McDonald Gerhardsen, Denis Bolotsky, and Thea Nordéen Dahl are journalists who have made special efforts to understand and report on the case.
Most especially, we are thankful to Halvor Manshaus, our lawyer, whose clear thinking and strong sense of justice has been invaluable to us. In closing, here are exerpts from Halvor's remarks in the Oslo Court in August:
Honorable court, honorable opponent,
I will start by drawing some historical lines. They say that history repeats itself. In my introduction, I touched the topic of publicatio legis, a principle that comes from Roman law, which says that legal rules that describe demands on – or rights for – citizens must be publically known and available. I have been considering this for our case. Roman society did not base itself on publicatio legis from the beginning. Just like in Norway, this was a development.
In short, there were two private citizens who changed the legal status quo with regard to the publication of laws and legal procedures. These were Appius Claudius and Gnaeus Flavius.
Appius Claudius is known for having done two things. He was responsible for the construction of Via Appia, the first and most important road in the Roman Empire. It was started in 312 BC and is also called Regina Viarum, the Queen or roads. She still exists.
The second thing he did, along with Gnaeus Flavius, was to break the monopoly of the College of Pontiffs. This group had a calendar which showed dies fasti and dies nefasti, which are favorable and unfavorable days for starting a legal process. A private citizen didn't know if a day was favorable or unfavorable without seeking advice by paying the College of Pontiffs. They also had a monopoly on the acta, the laws.
Together, Appius Claudius Gnaeus Flavius two broke a monopoly to ensure that all Roman citizens had access to the legal system. This is similar to our case, where Håkon and Fredrik have ensured access to legal information from the Supreme Court of Norway.
Gnaeus Flavius was, like Fredrik Ljone, a jurist. He got hold of the calendar and the laws and published them in a book, the Ius Flavianum, where he was the editor.
Håkon Wium Lie took part in the making of the web. He developed CSS, which is part of our information highway, just like Appius Claudius created roads in the Roman empire.
In both cases, two private citizens observe a fundamental problem in society and act to have it rectified.
1 Many within the EU have questioned the wisdom of the database directive, and EU has started an evaluation of an evaluation.
2 The Supreme Court has openly published their court decisions from 2008 and onwards
3 Our appeal, in Norwegian, is here