Alright, so let me introduce my friend and colleague Bill Malone, professor here at Herbert Law School, director of the Central Law and Intellectual Property Clinic, and he is going to take us through the analogous conversation about who owns this law. Professor Malone. Well thank you, President, and let me just say about what John said, because having this workshop here, going to see the culmination of 15 of these that Carl has not put is really pretty astounding, and we're all lucky to be part of it and be able to contribute in whatever way we can. I've had the pleasure and benefit of looking back over some of the previous ones, just to see what's been said about copyright, because this is an issue that's been addressed in a lot of detail in some of the prior workshops. And it's just, it's really quite amazing, the people that you've got together, the breadth of the perspectives and experience, and the topics that you dealt with and they dealt with. One of the things we've sort of touched on all along the way that I'm going to come back to again in terms of thinking about this whole area is just, how do we make this real? How do we actually achieve something? And what Carl is doing is probably, hands down, the best way to do it. Actually get out there, create knowledge, create information, create commitment and body, and by a whole range of people, I'm essentially creating all of the relevant facts on the ground that are going to make this happen. And that just kind of pushes past bureaucratic resistance, legal resistance, like copyright and a lot of other things. So I commend you hugely on pushing so hard, being so determined and getting to this point. Okay, I want to be real clear, this isn't just me, right? There's a whole bunch of people who have been doing these workshops. You know, Tom Woods, for example, has been at least five or six of these and has organized a two-day workshop. So I appreciate the kind words, but I do want to make very clear, this has been a large number of people doing this. Fair enough. So I'm here to talk about copyright and other limitations, restriction, and pediments to the use of the material we're talking about. And I guess I want to begin by restating the totally obvious, which is that, you know, for the last day and a half here, we've been talking about the tremendous value to society, to the legal institutions themselves, to citizens that come from having free and open access to primary legal materials. And it's both so that citizens have access and can use the material. And as Larry Lessick said yesterday, it's also the benefit that comes from people being able to take the underlying core materials and build on top of them, to innovate on top of them as a platform. Whether it's people developing really cool, easily accessible front ends, whether it's search engines, whether it's mashing them up into various other services or tools that let people use along new ways. There's a tremendous amount of secondary innovation on top of the core legal materials that can happen, that can be unleashed by all of this. But all of this depends, personal, citizen use, the platform use, the innovation use, all depends on open, free access, access not being restricted by things like copyright. And so I want to focus on a couple of pieces today.  And the second one is sort of a different variation on that, which is other restrictions. And typically those are terms of use or contractual restrictions that come up, usually in the electronic context. Whether or not there's copyright claims to be made, there are often locations of sort of secondary restrictions, contract and so on. So we're going to talk about that a little bit. So I think it strikes most of us as more than a little crazy that the public law, the actual statutes of our states, our countries, our cities, the court decisions, the rules and regulations that were required to obey and live by might not be available to everybody in an easy way. So they can understand that that just seems sort of nutty and yet this is an issue that keeps coming up over and over again. So what does the law actually say? What does copyright tell us about whether or not states, municipalities, other entities can assert copyright over legal materials? As with a lot of things, some things I think are crystal clear and there's no some things are pretty darn clear. You can be very comfortable with other things where it's just not so clear. You don't quite know. You don't yet have enough experience with it to say or certain, but we can make some pretty good guesses. So what's crystal clear? Well, one of the things that's really clear, fortunately, is that there's no copyright in federal government materials period. So section 105 of the copyright says there's no copyright protection for any work of the United States government. And a work of the government means any work that's prepared by an officer or employee is part of that person's official duties. So that goes way beyond just court decisions and statutes, right? That's anything the government prepares. That's great. It's a fundamental part of the copyright law. Notice view about that at all. That's the easy part. That's the crystal clear part. What about state laws and state legal materials? Well, you notice section 105 here doesn't say anything about states, right? It's silent as to any governmental entities other than the federal government. So we don't get any guidance there. The general rule, though, I think most people would agree is that for primary materials, actual texts of court decisions, opinions, statutes, and so on, there is not copyright protection. So if we go to Nimmer, one of the leading copyright experts, he's pretty equivocal, right? On the hell of no copyright, maybe he's playing in state court opinions or federal court opinions, which we know, state statutes are likewise regarded as being in the public domain. And Nimmer, influential as he is, is not the law. He's not the Supreme Court saying this. There are some very old Supreme Court cases that certainly suggest strongly this, but they're old nicely. Massachusetts long, long ago in 1886 seemed to make this pretty clear. And essentially basing it on this almost due process argument, right? The citizens are expected to obey the law, and they have to know what the law is, and it's just not an acceptable matter of public policy to say, well, you have to obey the law, but we're not going to make it available to you or accessible to you so that you know what you're supposed to be doing. So it actually makes sense for a number of reasons, right? The obvious one is this. If you've got to know the law and obey it, then you better have access to it. You shouldn't have to pay for it. You shouldn't have to not be able to get it because you can't access the particular paid service or whatever that's providing it to you. But there are a couple of other sort of very basic arguments behind why primary legal material should not be copyrightable. One of them is just the purpose of copyrighting. We touched on this a bunch, Larry Lesson hit it hard yesterday. I mean, we have copyright laws for a reason. The Constitution actually provides the basis for intellectual property protection and copyright law, but it does it by saying to promote the progress of science and useful arts. And so the specific purpose, we don't give copyright just to make money, you can say to make money. We do it in order to incent creation. We do it to provide an incentive so that people will create new content and materials that we wouldn't otherwise have. And then as Larry said yesterday, society will then benefit from. So there are two parts there, incenting creation that wouldn't otherwise purr, and then the material that gets created as a result of that benefits everyone. That seems kind of silly when we're talking about it in the context of judicial opinions and statutes. Does it make any sense to say that judges write their opinions, not because they're judges who write opinions because that's their job, but they do it so that they or the state can somehow walk these opinions up and charge money for them? Of course not. It's just crazy that it completely doesn't connect with the purpose of copyright. Same thing for legislatures. Do we really think it makes any sense to say that legislatures, municipal councils and so on, pass laws so that because they know that there's a financial reward that comes from exercising a proprietary right and selling access to them for a long time? No, it's crazy. These are fundamental purposes of government and we don't need and it doesn't make any sense to think of the incentive of copyright as the reason that they get created or the spur to their creation. Now we have to be a little careful because there's a difference between this ex ante incentive degree which the copyright laws are all about and something that's come up a bunch of times with Larry talked about yesterday which is an ex post revenue stream that can come from these things just because we don't need copyright law on the promise of reward to make the legislature do its job and write statutes to make the Attorney General do his job and issue opinions. It turns out that in some cases they can sell these things to vendors like Wyces, Texas or West or others for a fair amount of money and then that money is a revenue stream that they wouldn't otherwise have. So we have to deal with the money part and the practical effect that that has. That's not a copyright issue. It's not about the sort of ex ante incentive to create. So I think we need to sort of take that, recognize that exists, take it off the table. So if it's this clear, if there's absolutely no right in federal, material, and state primary materials seem awfully literally not within the scope of copyright, then why is this such a big deal and why are we talking about this, why is Farrell and others have a number of presentations about this in previous families as well as this one. Well, it turns out for a number of reasons. So we heard yesterday, I think maybe it's a Marnie's panel, that surveying Massachusetts turns out there are a bunch of municipalities and others that put copyright notices. It actually is seen to assert copyright in various official legal materials that they create. I think some of the work that's come out in other workshops, Carly suggested that at least eight states still put copyright notices or purport to the asserting copyright for their statutes, their primary legal materials in spite of it seems to be a pretty clear statement that they can't do that. So what? A law seems to say you can't do it, they do it, why not just ignore them? Well, we'll talk about that. You know, ignoring them sometimes is not a good, not a bad strategy to just charge a cat. The problem is ignoring them for Carrell, ignoring them for the law of government is one thing, because they have a huge amount of credibility, momentum, good pro bono lawyers like you have that standing behind them. But remember what we're talking about, unless it's the idea of legal materials as a platform for innovation. People being able to do all these great things, or whether it's just, you know, the law student that Carly was talking about yesterday, you know, who takes some materials and scans them and puts them up. Some of those people, maybe a lot of those people are going to be chilled by the fear of a copyright lawsuit. They're not really, they're a little more risk averse and not really going to stick their necks out, and maybe risk being pursued by the legislative council of Oregon or the state of Wisconsin or someone else. And so the mere uncertainty, the mere fact that these notices get asserted, even though they sound silly to us and there are good arguments that they are silly, until we've sort of beaten that argument down and made it really clear that it's not down, it's going to continue to get in the way. It's going to actually block some of what it is we're trying to do. So the more we can bring clarity to the subject, both by studying and talking about it and by, you know, standing up when the issue arises. So taking on Oregon, taking on other instances down the road, the more it's going to happen. So that's why we're actually studying some time to talk about it today and other days. Second reason it's important is, you know, when we're talking that the kinds of materials we're talking about creating access to aren't just limited to statutes and decisions. It's a whole range of, you know, secondary materials and other things beyond just the primary texts that we're talking about. And so the law's a little bit clearer, less clear of those we need to think about now and talk about them a little. I want to mention just a couple and it's been talking about a couple. So in addition to primary materials, you often sometimes see additional content described around them. So if you look at you know, Westlaw or Lexus-Nexus, you not only get the text of the decision, you get their two little star pagination issue stuff. If you're Lexus-Nexus, you get the actual pagination of your West, you get head notes, you get, you know, the syllabus of the decision, you get bottom information about the court and so on. You know, other kinds of materials and rules. For example, this came up in the Oregon case, you get commentary, you may get sort of annotations and other materials. There's a lot of stuff that goes along with it that, you know, maybe is created by the government, maybe is created by a private vendor like West or Lexus-Nexus. We have to think about the copyright issues there. And then there's a separate issue about what happens when you have a private entity. You have the American Law Institute writing model statutes or model laws or you have, you know, the national electrical body writing some sort of electrical code or plumbing code, some kinds of other codes. And those then get adopted into law. The texts of those then become the actual law. What happens in that case? It's a little bit different because you don't have the initial drafting, the initial creation done by government employees who were doing this because that's their challenge to create the law. So those are both a little bit complicated. Let's spend just a minute on each. So interestingly, the sort of other additional content, things beyond just straight text, was part of the issue, part of what came up in Carl's case. And so if you look at the lovely Ceasing to Sys letter that he got, and this is to Justi, the competent chapter owner or included in this. Tim got the letter and we kind of fell it up to the bar since we worked with Justi very carefully and we essentially interjected ourselves. Us too. Sue us too. Yeah, yeah. I love that. You don't often have people say that. It's wonderful. But notice why the committee is saying here. They're sort of acknowledging the obvious that they don't claim a copyright in the text of the law itself. But they do claim a copyright in the arrangement and subject matter compilation of Oregon law. Preventory and explanatory notes, the lead lines and numbering, preceptory section. So, you know, whether something is section 103.2 or 107.9, that's really great copyrightable material according to the committee. And so there are lots of things like this that come up that go beyond just the sheer text. So even if the rule was 100% clear, it's close to that about the actual text. You have these other materials, these other bits that aren't exactly the same. It kind of comes close to that. So in the Oregon case, the state, the committee back down and they said, we're not going to assert copyright after lots of great pushing and essentially you guys telling them we have a declaratory judgment action ready to go, by the way, here's a link to the complaint. If you want to look and see what we're going to say, let me sue you. You know, go ahead and make our day.  The inhaled hearings about it. I don't know. I don't actually want to invoke copyright here after all. But that doesn't always happen. And there have been a few reported decisions in the law, I would say less than clear. So there are a couple of cases. One at Federal District Court from Minnesota, another one in the 8th Circuit dealing with West's page numbering system for their decisions online. Both of those cases said, actually, that's original, creative expression sufficient to give them a copyright. And if someone else comes along and copies their actual pagination, they're infringing the copyright. And it could be a really big deal, right? We've heard in some cases, we heard yesterday that some of the Massachusetts, lower Massachusetts decisions are only reported through the mass law report. You don't have an official version, the only pagination you can officially cite to until we get paragraph numbers as the norm is this, you know, West created or some of the younger created page number, but you can't copy it without infringing the copyright. That's a real problem. Fortunately, the Supreme Court came along in the mid-80s and decided the FICE case, which basically said, well, wait a minute, facts are not copyrighted. You've got to have a modicum of originality and creativity in something before it can actually be copyrighted. And things like the phone book, you know, putting something in alphabet order, sorry, those are facts.  Well, it's got to be some originality. And then later cases dealing with West have done a much better job of recognizing than in fact the star pagination system and other stuff. The arrangement of sections, the information, the sort of way they rearranged the beginning, the parties and the judge and the case number and the attorneys and sort of the procedural posture. All of those are really just factual pieces of the opinion and they're not adding anything sufficiently original. So that sort of, I think by far the best reason, best outcome is the Matthew Bender versus West case from the Second Circuit, which said, no, no, that's not copyrightable. Problem is, you know, the Eight Circuits case, earlier cases still sitting out there. Again, we're talking about some uncertainty in the law and some chilling with people who might not always want to do things. It's a little bit of an issue when you can say, well, all right, we're in the Second Circuit, somebody follows the Second Circuit. We look great, but you know, somebody wanted to rely on the State Circuit decision still sitting there, you know, could be a problem. So it's another example of lack of clarity, a little bit of uncertainty, probably leading to some chilling, some less use of innovation and so on that we might otherwise see. It gets a little bit more complicated if we're talking about something beyond just pagination. And I think in one of these cases, West actually admitted that instead of having some creative genius sitting there going, aha, this is the place for paragraph 9 to turn into paragraph 10. And as somebody said yesterday, you know, I know, why don't we start this part of the book at page 937? Instead of that, it's a lot of major processes. So there is no originality or creativity. But beyond that, you know, some of these other things are harder. So West's head notes, for example, where they sort of categorize and come up with where they think it belongs in a way of describing what it means, annotations, commentary, things like that. There's certainly a stronger argument there that that is original, that is something creative. And so there's a spectrum. I think you've got a decent argument that there are copyright restrictions when you get that kind of ancillary additional stuff that you absolutely don't have with the underlying core material. And you probably don't have with the closely surrounding material like pagination and so on. Back to the issue of private codes from instances where we have a private body, like an electrical, standard body or plumbing body or something. The cases are a little bit mixed. There are cases from different circuits. A couple of them in the first circuit and the fifth circuit say where this kind of privately drafted material actually adopted as the substantive law, where you actually say, all right, you know, these 16 pages of the Uniform Electrical Code or whatever it is are now clocked down, wholesale into our statute, you must obey those words. Then those are not subject to copyright.  And you can't say, oh no, someone owns the copyright in there. Cases have gone the other way, but there are situations where there's been a statute that has referred to the provisions of certain codes, sort of built them into the law in an operational way without sort of wholly adopting them and wholly incorporating them. There's a little bit of a distinction there. You can still get some laws that you can't really understand very well unless you look at referred to materials where courtesans said, no, that doesn't completely initiate copyright in those materials. It's certainly in cases where you take that whatever it is that ALI proposed model law where you take the electrical code and you just brought that into your statute and adopted it, then we're not going to allow copyright in that case. All right, so that's copyright historic. So as I mentioned, the other piece of this that in some ways is a lot more interesting, we're beginning to see a lot more, is people using contractual restrictions as something of an in-run around copyright as a way to create some exclusive control over something where there isn't a copyright in the first place. Most common are terms of service, user agreements, user license agreements, and so on, on websites where there's electronic material.  In order, you know, in order to come onto my side, in order to even look at any of this, you must first agree to the following terms of service. You must enter into a contract with me that governs how you will use this. If you then do something that the terms don't allow, they can't sue you for copyright if they don't have the underlying copyright. It doesn't create a copyright that doesn't exist, but they can sue you for breach of contract. And in many cases, depending on how they're presented and what the terms are, these kind of, you know, click-through agreements, terms of service agreements are perfectly bottoming towards a then quite willing to say that they form binding contracts. So, you know, a good, just very simple example is to look at the west user agreement, the west law agreement for, you know, if you look at west's, this is for the law school version of west law. Basically, you know, this is when you have to click, I agree, and your access to and use of all this are subject to the terms of the agreement below. So this becomes a contract that you're bound by, provides all sorts of, you know, limitations, but one of the things it says is that users may not copy downloads, right, blah, blah, blah, blah, the data or any of any portion of the data accept as we say. Download the data done be stored or used in an archive database or other searchable database except as otherwise expressly permitted. I haven't studied all these precise terms but what this has me typically mean is if you want to create, you know, if you're just here or sometimes you want to create a database of all of the federal court of appeals opinions for the last 20 years you can't go to west law and download all of them, cut and paste the text out, put them into your database. There's no copyright in that. It's a matter of copyright thinking to stop you. But in the contract you have to agree to, in order to go on and actually look at any of this, you agree that you're not going to do that. And we see that a lot. If you think about the kinds of materials that are online, primarily or only available, primarily or only online in electronic form, almost always some type of user agreement, user license and so on. And this can come from two sides. You can get this from vendors like West who take the material and post it. Or you can get it from government. You know, it's not unheard of. There are plenty of cases and one more case is where the government entities that put up whatever it is, the code regulations or something else for a state or municipality or something, the CD-ROM for distribution is, you know, certain kinds of code require you to enter into a usage agreement before you can actually even look at it in the usage agreement restricts what you could otherwise do as a matter of copyright. Just want to note, just because it's quirky and interesting, there's a new example of this. It's great dispute. It's just arisen regarding sort of crime data and police data. So you get a case. There's a company called Public Engines buys, is actually paid by police departments around the country. It gets crime data from them. It sort of massages it, takes out some stuff, formats it in a certain way. And the reason it does that is sort of under contract with these police agencies. But it also posts this stuff on its site crimereports.com. So one of its competitors came along and said, wow, is that cool data? Wouldn't we love to have that for our own service? So they basically scraped it all, used it for their own site and our own service and popped it up and got sued. Complaint, no lawsuit. So got sued by the underlying company. Interestingly, and I think sort of nice, slightly encouraging, the complaint doesn't include a copyright claim. They at least recognize this stuff is factual. We're just talking about Joe Smith called the police at X time and reported that there was something and whatever little modifications they made, anonymizing things and so on are not sufficient. So there's no copyright claim. There are a lot of other claims in there including breach of the terms and violation of a federal statute called the Computer Fraud and Abuse Act based on the violation of the terms of service that said, if you look at our site, you shall not do all these things, including taking and putting it on your own site. So increasingly we're going to see, I think, these sort of terms of service from both vendors and public entities around legal materials as an issue that has to be dealt with. And there's very little case law. There's certainly very, I think no case law as far as I know that deals with. So let's say a state tried to take its laws, didn't assert copyright but basically said the only way we're going to make them and the only way we're going to show them to anyone is we're going to put them on this website. Totally available, they're up there but you've got terms and conditions and they restrict what you do. Would that be enforceable? I think there are very good arguments that it would be void as against public policy because it doesn't allow full use that some of the cases have talked about for citizens but it's not clear. And that's beginning to happen, by the way. Maryland, for example, shifted from print to electronic and rather than assert copyright, they simply say it's a matter of statute that allowed to do it. Not copyright but law. Right, right. So it's really substituting physical access but we have control over this thing. You know, the law exists but it's in this little binder, electronic binder. And the only way you can look at it is through here in order to let you do that. We're going to have time. I want to make that kind of, I guess, utility. How would you, is this a particularly problematic case I think? How would you look at something like the official comments to the UCC? Which I think is actually the most egregious example of something that actually should be a public domain. Any take on that at all? I don't know. I mean, I think, not specifically but I think it comes down to that closer it gets to being, you can't use the UCC, you can't understand what it means, you can't understand how it's going to be applied, how it works going to be decided without looking at the official comments and starting to look a lot like, you know, these are things that have been adopted by states that say we adopt the UCC. You know, it's sort of in that middle ground where they kind of plopped it down in the statute, you know, made a official part but you actually need it. It's essential, you know, in order to figure out what it is that citizens are supposed to do so I think there's at least arguments to be made that from a due process standpoint, a policy standpoint that you shouldn't be locking this up under copyright. As a practical matter, we've always been able to evade most of the restrictions on model rules through copyright by finding a state that's essentially implementing the verbatim right and republishing that. We did the same thing with the rules of professional kind of ambient models.  If there's anybody there who likes to get sued. Besides Carl. Would be a good thing to be sued about. I've had my eye on UCC for a while. I've been trying to figure out if that looks like a worthwhile thing to do. Practically, whether, you know, it's the lawsuit go-to-jail thing or interesting legal question. I never do anything without EFS approval and also consult other folks before doing these things. Good thinking is great that you have access to that to let you sort of be braver and do more than the average person. All right, so we've got some unresolved issues. I think we have, you know, certainly the risk of real showing as a result of some uncertainty. So, you know, what do you do about that? I think we've kicked around all the ideas in this morning in sort of a preview of this. But there are three, you know, big pockets of things you can do. One, you try to change the law. You know, the world would be a much easier place. Section 105 wasn't just limited to federal materials but also said, you know, something about state law. Again, you know, the federal rule is incredibly broad. It's anything a federal government employee creates in the course of their work.  There are good policy arguments for some kinds of, you know, completely non-legal textualist materials. Maybe you should have copyright. But you could at least envision a change that said state statutes, state court decisions, state rules, administrative, you know, any sort of binding legal and material of a state shall not be copyrighted. It would be very simple to do. But at the same time impossible to do. Changing law in this sort of way is incredibly difficult. And as neat as the result would be, I think most people think that non-starter is a sort of at least short or medium term real solution to the problem. So if you don't do that, you can sue or get sued. You know, the problem there is, as Carl said, he's running around like crazy trying to get sued, right? Saying, please sue me. Look, I'm using your stuff here. Please sue me. You know, I think that's exactly the right approach. You know, someday maybe someone will or maybe someone will continue to threaten you enough that you can file a regulatory judgment action. You know, lawsuits take a long time. They don't always get to the right result, as we said. There's some risk with them. So it isn't, I think, certainly not the only strategy or even the best strategy. I think putting yourself out there in a position where you might get sued and then being able, being willing to run with it if that happens is really important. And the great thing is in the process, you know, every time someone decides not to sue you when you've stuck it under their nose and dared you to, you really contributed to the third thing, which is sort of creating actual practice and using persuasion. You put facts on the ground and then say, look, you know, why not go? It's got all this material. It's up. It's publicly available. We're using it. You never came along and sued anybody.  There's never been a lawsuit. That becomes very powerful, both as a legal matter but also as a matter of persuasion. When you go to the next state legislative commission or when you go to law school deans or when you go to people in the White House or whoever, you can say, well, we're doing a huge amount of this and nobody has yet stepped in to sue. So, you know, sort of trying to say or I think the approach that you're taking so far are both creating as much usage, as much posting as possible to show how valuable it is and can be done. And then trying to change as many minds as you can through simple statements, like the deans letter that says, by the way, this stuff is not subject to copyright. That is exactly the way to proceed. That's it. We have a few minutes to talk about it. Lots of different issues. As I said, some of these things have been talked about. Great detail. Anne Sandlinson and Brian Sharper spent about an hour and 20 minutes on Berkeley talking about this discussion I do. It was a tremendous amount of detail that you've been going through and I want to sort of get the high points today. We're happy to build down further if people want to be part of that process. So there's one nagging issue. It's what I call the agent of the state theory, which is I'll grant you that head notes from West, for example, are perfectly copyrightable, right? That's their original material. Any vendor ought to be able to summarize the law and make that a value-added product. But in many cases, a vendor becomes the official distributor of the reports. And my question is, does that affect their ability to copyright it when they are the sole exclusive source of the official reports? Does that somehow change the argument about the strengths of their assertions? Yeah, it's a great question. My sense is, as a legal matter, probably not as long as the stuff we're talking about that has notes, the summary of the decision or whatever, aren't legally binding in the way that the case is. So if it's just sort of this extra gloss, it seems wrong. It seems bad policy that the state is paying to have this done, or at least, you know, like that in the states by getting paid, actually. But the state is turning this over to someone and that piece isn't available. In terms of what matters to citizens, it's access to the law, to the operative key. You know how this is sold by vendors, by the way. Triple keying is what happens. What you do is you buy the books and you send them to the Philippines or Thailand or India and they're type three times. And by having them type three times, you know you got it right. And every one of the vendors, Fast Case, Lexus, all the others, all of them have these material triple key and that's how they get the material, the underlying law recovered. And some leave page numbers in and some don't leave page numbers in and they have different ways of doing it. But each of these documents that are official or reports are recopied at least a dozen times from the paper because they can't do it electronically because occasionally they do a cross license agreement. But the smaller vendors like Fast Case, they literally send the books overseas. And if you think back to what Lestig said yesterday about the potential for real economic value from being able to build on open materials, that seems so crazy and so silly and so wasteful. Why should you have people paying to retype stuff that's plenty available on electronic form? It's just the government won't make it available to everyone in this form. Instead they sort of pick the particular vendor and then you start dealing with their stuff. Can I reframe how governments do it? Because at least for Massachusetts, at one point there was a big contract and who's going to print it?  So is it the official version? Yes, but there was a contract, it was about printing, it wasn't about becoming official. So to me there's a nuance there around that and maybe what we need to do is to get governments to go out and bid more often. I mean if you want to open up the market, but then you have to go back and recreate it and then whoever wins the bid at the beginning has a leg up. But I do think there is a nuance here that Lestig came in to become Massachusetts official merchant. They want a printing contract to become that. I don't know. To me there's a nuance there. I don't know what it means. And I assume that's a bigger issue that you travel with. You know, you want an official version that's electronic, fully available and maybe you do have a number for someone to print. You know, to the extent we keep doing this much longer, you know, we print that ice-bound version. But that doesn't mean that everyone else can't have access to the same underlying material. You get back into the authentication issues obviously. But if everyone can get the electronic stuff, so they don't have to re-type anything, they don't have to scan and then worry about you know, OCR issues. But they just, everybody gets the same core thing in the same format and then maybe someone has a contract to print it because that's a convenience. But it's fully available to everyone else. With something of a claim in my eye, I will say that Wisconsin has to official work of everything. Or, yes. Yes. And the way in which we have bound this notion of official status into a system of monopolistic bars is that it's a blight.  But now in a world where the stuff starts electronically, and that's what's crazy about all of this, you look at, you know, books scanning and other things. So these days, it really starts electronically, ends up on paper, then in some cases people glue it back into an electronic farm. That's nuts.  And the huge issue that I don't see the answer to is the standards industry currently is funded through the copywriting sale of their printed standards. If we managed to figure out a way to free all that, we have to find a new way to fund the standards. And so, I mean, I don't know if you have an answer to that one. Yes, I do, because I've dealt with this a lot. When I put the National Electrical Code you know, that is officially copyrighted by the National Fire Protection Association.  So I spend a lot of time looking at the revenue. About 17% of their revenue is from the sales of these standards documents. And I'll grant you they will face an idea at the moment if their stuff is more broadly available. But they make a tremendous amount of money from conferences, from annotated versions, from the ill-inversions that are not official, from special value-added CDPs. And I think there is a great opportunity there to increase their market to give them the ability to continue to make a lot of money. In the VEC case, one of the things they pointed out is that the NFPA would be making this code even if they didn't have copyright because it's the business that they're in. They want them to be turned into the law. In fact, many of these model codes, at the beginning have a sample resolution that says we the people of in certain name of jurisdiction here do hereby adopt. And so it's an issue for them, but it's not a make or break. I think they will still exist and survive very well. I'll grant you a 17% revenue hit is real. On the other hand, pull up the revenues, the non-profit tax returns for a lot of these operations. NFPA is 40 million a year and they're paying, you know, $600,000 to $800,000 salaries. They have some revenue. ICC is a huge business and we're talking million-dollar salaries there. The plumbing codes are pretty big as well. I think there is a potential they would have to adjust. Now ANSI is a slightly different issue because some of their stuff is meant to be in law. Some of their stuff is not. But when I spoke to the ABA rulemaking institute I had a whole bunch of government officials come up to me and say one of their big issues is incorporation by reference problem because they incorporate the technical standards. And then even the bureaucrats and these agencies can't afford to get the standards that are in law and they're customers out there in the small business world and the others that have to do it. So one of the things that they have to consider when they adopt one of these things is can we afford to incorporate this by reference. But yeah, private law is a huge issue. Huge, huge issue. Early on you said that there's a difference between if someone is buying the rights of a government that is receiving money from a publisher, that's different when they talk about it. But I think you can't ignore that because what are they buying? Or what are they paying the government for? I mean, you can make people, you know what I mean? They're countering the fact. They're countering we're paying for the copyright in order to publish it. That's how they'll posit it. I just think after, you know, I think that's, again, I think that's as an explanation of a revenue stream and what happens after that maybe right. I don't think it changes the original incentive to create the law in the first place. But I also think you know, that too maybe made sense at one point in time but now that we have a lot of ways we can make the law available and publish the law, don't necessarily need to have people paying to get the monopoly right to do it. That just no longer makes sense at every level. All right? Yeah, Sam. Just to add on to that comment or to answer Eric's question, I think isn't it just the physical access point of it as well? It's not necessarily a thing for the copyright. It's physical access just like in terms of use on a website condition or access to it.  There's no copyright in those paintings but you control who comes in the museum, whether they take photographs. If the museums have asserted that when people take pictures and publish pictures in a book. Even federal museums assert that because particularly in terms of I'm not saying they're right but I'm saying the argument has it will be made. Right. And it should fail. All right? Hyperlunch, thank you.


So, the President's budget for FY13 has language in it that says NIH will establish a process for additional scrutiny and review by an Institute or Center's Advisory Council of Awards for any principal investigated with existing grants of $1.5 million total cost. In addition, we would also want to ensure that the highest level of scientific quality and innovation is achieved and that we can maximize NHGRI's investment as ways to be responsive to the strategic plan. So what does this mean in terms of special counsel review? There are two sets of applications that will be considered for this review. One is the competing research project grants and those are listed. There are a lot of activity codes in the RPG line, but the ones that we use most commonly are the ROO, which is the second part of the K99. The R01s, small grants, R03s and R21s, R15s, which are the area awards. These are awards to institutions that don't have a lot of NIH funding. The program project grants and the DP1s and DP2s, which are those common fund initiatives to support innovative research. Also included are the competitive revisions, which are the competitive supplements. So what contributes to the threshold? The funds that are committed to the RPG that are awarded from all institutes, so if an application comes to NHGRI and that individual has support from the Cancer Institute or NIGMS, that will be included as part of their $1.5 million bucket. Also included will be funds that are attached to an investigator who has a P01 or a multi-component or a multi-PI application. So if there are three or four people who are part of a P01 or a multi-component or a multiple PI, those funds will be included in that as well. But what happens is that the funds are divided equally, no matter how it's cut at the lab, it's divided equally by the number of PIs just for convenience sake. So what is included in the special council review? Awarded P01s, multiple component and multiple PI grants in which all the program directors or the principal investigators meet the threshold. So that means they're going to be looking at if you have a P01 or multiple component, if all of the PIs or program directors in that grant have a total award that's exceeding $1.5 million, then they will be included, that's included. Again we talked about we will be looking at funds from NHGRI as well as any other institute that that particular applicant has funds from. And also if an institute has designated an application that's pending an award that will also be included in the $1.5 million annual cost. What will be excluded will be applications in response to requests for applications or PIs or multiple PIs or multiple components in which at least one of the principal investigators do not meet the threshold. So if you have a multiple component grant in which one of the PIs has less than $1.5 million then that throws that grant out of the pot. And also diversity and reentry supplements will not be included. The reentry grant, a supplement, that is a supplement to a parent grant in which an individual who has been out of the research workforce for several years and now they have decided to come back and get some retraining. No all right now this is all NIH wide and there is a notice that was recently published I think on Friday in the NIH guide that gives some additional information about this. But up until now this is all NIH wide. So the centers and the institutes, their councils have some flexibility in weighing what factors should be considered when we are looking at an application that hits that threshold. So now this is a mixture of NIH specific and NHGRI specific examples. So some of these include if an application is responsive to a specific institute initiative such as an RFA or whether something is specific to the strategic plan. Whether it is to continue a highly productive project. So for instance if you have had a type 2 which is a competing continuation and that applicant has been highly productive, if they hit the threshold then you need to consider whether what harm would be done if you decide not to fund it. Applications that are highly innovative and will advance the field significantly. Are applications that address a field of research requiring greater attention. By that we mean you have some types of projects that are more expensive than others. For example, other institutes have clinical research studies that are very expensive. For NHGRI we may have technology development applications that may be expensive. So that would be something to consider. If you didn't fund this, would this severely inhibit collaboration? If someone is applying new or existing concepts, methods or technologies or ways of analyzing data that result in significant advances that would be another reason to fund. To have a high indirect cost. Now we do know that institutions vary with their indirect cost and whereas that should not be an automatic reason to not consider that, it is relevant to the discussion and you can decide whether you want to include that or not because after all we are talking about 1.5 million total cost. And then sometimes applications will have a very high first year cost because they are requesting very specific unique equipment that is a one time only cost. And I put other there because there may be other issues or areas in which it would be important to sort of override the 1.5 million dollar request. Now what is important here is that this is not meant to say you cannot fund an application. It simply means that when an application hits this threshold you are required to at least examine it in a more thorough and intense way. And if you determine that this person has more than 1.5 million and this is a good investment then that is okay too. Council yes. I beg your pardon. Any other group do this scrutiny or is it just council and then a recommendation made? Just council. In fact we are going to the process we are going to use is the same one we use for special initiatives, the staff analysis so that when an application hits the threshold staff will generate a staff analysis and then you will have the option of reviewing that and either agreeing or not agreeing with staff. Those study sections and special review groups are not going to see this issue. No. That is really not relevant to them. Recommendations for funding are at this level. So in principle this could make no difference or in principle it could make a difference and it will depend on council's reading of the relevance of the work. Correct. Correct. But it is not a rubber stamp for what staff is recommending as it never is with this council and it shouldn't be. So the way this will work is that NIH now has a program that will generate a list of eligible applications going to every council. This management staff along with the program director will look at that list to make sure that everything looks appropriate. There may be some decisions they will have to make. For instance if someone has an award that ends in a month or two and they have hit that threshold well the decision may be to not include that in the 1.5 million because if that drops out and they are below the 1.5 million then a month from now that would inhibit their research. So there will be some decisions made very lightly about what should and should not be included but we won't override the basic principle. After that we will then put these applications in the electronic council book. And we will only put in applications that we are considering funding. So if we have five applications and say three of them have scores of 45 and they hit the 1.5 threshold there would be no need to discuss these because we don't plan to pay them. However many times we at the end of the year will go back and pick up applications that we hadn't thought about funding before. But if we pick up an application that hits that threshold we can't fund it until we come back and bring it to you for review. So we will treat this like we treat all applications dealing with exceptions. There will be a staff analysis. Council will have an opportunity to discuss and give their recommendations. And then after that happens we will then notify the institution and the PI if their application was in a fundable range and because of the special council review it was decided not to fund it then that information will be conveyed to the institution and the principal investigator. So I think that's all I have to convey. And if you have any questions I think between Mark and Cheryl and Monica we should be able to answer them for you as best we can. Do you have any idea what percentage of grants are going to need to be looked at this way or what number? The percentage is very, very small. Throughout NIH it was like 2,500. A GNO? It's going to be very small somewhere between 2 and 3 applications per time. We really don't have that many. Because remember we are looking at the RO1 types. Got it. I got it. And just for, yeah. All right. I'm missing the point. If somebody has a big center grant and they write an RO1. A center grant? Yeah. The center grant doesn't count. No. Oh, the center grant is excluded from the 750? Yes. All right. Yes. The other thing that reduces the numbers a lot is that everybody on a multi-component grant has to raise the alarm bell and if anybody on the grant doesn't then that grant is excluded from consideration if I understood the way you describe the rules. That's correct. The other thing is any RFA that comes to council it's not included in the review. However, if that person then say another round comes in with just a regular RO1 then that will undergo special council review. And so realistically the scenario you maybe could envision is if someone's really good at writing RO1s and then doesn't do the work then this would be a way to flag that and avoid funding. But in just about any other circumstance. Right. Because if they write a lot of RO1s and they're really good and they really do the work you're not going to get rid of them. And if it's another mechanism besides RO1 you're not likely to be getting up to a million and a half. Right. Okay. Yeah. But I think we're looking at kind of innovation and things that are really going to push the field forward. Yes. Well, maybe Mike just answered my question but as I was looking as I was listening to the several reasons which would be considered as adequate justification for going ahead and paying it. They sounded like traits that we look for in all grants, highly productive, innovative. If you have collaborators and you don't do it it'll hurt the collaboration. And I was asking, I wanted to ask what's a scenario where you would not pay? Grants have already gone through that the study sections have given them good enough scores that you know they're making the pay lines. On what basis would we turn one down? Well, I can't say exactly but I think one reason would be say we have a portfolio of grants in which similar research is being done. And this is a very good application but it doesn't move us significantly beyond what is already being funded. So I think that would be kind of a weak reason for not funding that again. I think study sections hammer that right away. Any other questions, comments? Do you, I guess for the answer to your question is that we're not really looking not to fund somebody on the basis of the rule, we just have to do it. I did get the message that it has to be done. Thank you, Bert. I do appreciate that, Marty. Well, the other part to this is that after every council round NIH will be making a report to OMD about how well we're doing in monitoring this. Okay, thank you, Betty. We will move on to our last presentation.