Sam Glover at the Lawyerist.com reported on a takedown request aimed at Ernie Svenson, Ernie the Attorney. The work in question is ABA Formal Ethics Opinion 06-442, which sells for $20.00 on the ABA website. The ABA store also encourages membership, stating
Members of the The Center for Professional Responsibility receive a discount on this book. Join the Center or visit the The Center for Professional Responsibility website to learn more about the valuable resources included with your membership.
The ABA asks lawyers to volunteer their time and intellectual efforts, only to commercialize those efforts and sell them at a premium. It has policies demanding copyright from its volunteers that limit the dissemination of knowledge and frustrate the values of open access and improvement for the profession.
Congress recognized the importance of free access to law. The federal government cannot obtain copyright in works it authors – such as laws and reports – because there is no public benefit. State laws are treated as works in the public domain by case law.
Model laws and advisory opinions such as those published here by the ABA are not works in the public domain, so the ABA has every legal right to claim copyright in the works. As a primarily volunteer organization which relies on members time and efforts to create this content, the high prices and limits on access are inconsistent the values of the organization. The irony that a
trade professional association dedicated to equal access to justice and the betterment of the profession demands payments for its guidance on how to practice law ethically will not be lost on the public, so why is it lost on the ABA leadership.
In contrast to the ABA’s approach, law schools around the country, including Harvard, Birkbeck, and Universidad de Puerto Rico have created open access to scholarly works. Perhaps the most expansive of resources is the Social Science Research Network, a global library of scholarship across most academic disciplines.
The ABA should continue to sell sophisticated content to willing purchasers written by volunteer authors. But any reports, opinions, or general information should be free to the public. If we wish to remain a self-regulated profession, then it is time to look past the short-term income opportunities and begin to embrace the ideals of the profession.