Note on Code Swaraj
My resolution was accepted in May, but for three months I did not hear from any of the sections. I approached chairs and delegates of many of the sections, such as Intellectual Property, Antitrust, Science & Technology, and offered to discuss any concerns they had. Nobody would talk to me.
Though nobody would talk to me, it turned out there was a lot of talking going on. The week before I was set to go out to New York for the meeting, I received an urgent communication saying my presence was necessary on a phone call to discuss the resolution. I was told that it could not just be me on the call. A true ABA member whose name was officially listed on the resolution must also be present on the call as I evidently required adult supervision.
We did the call. It lasted an hour. It was not pretty. On my side was Tim Stanley, one of my founding board members and an ABA member, and a volunteer from Yale Law School, Misha Guttentag. On the other side were eight angry members of the bar association, including representatives from the Intellectual Property, Antitrust, Science, and Administrative Law sections.
Their position was clear. We must withdraw the resolution or we would feel the full wrath of the bar on our heads. The representative from the Antitrust Section said he had looked at the 75 articles I had uncovered from the Antitrust Journal and he could vouch that every single one of those articles had been done by the employee on their own time and were not works of government. I expressed incredulity at the idea that every single one of those articles was private property, but he was adamant. I counted at least 17 publications in that list by sitting Commissioners of the Federal Trade Commission, and am perplexed at the idea of how a sitting member briefing the bar on FTC enforcement priorities could be anything but “in the course of their official duties.”
The lady from the Science section said that if I brought the resolution to the floor, they would make a big stink about my conflicts of interest. My jaw dropped a bit and I asked what conflicts those might be. She said I had spent my whole career trying to make government information available and I was in litigation with Georgia, so I was self-interested but had failed to disclose these conflicts. She made it sound really dirty and sordid and it was clear she would bring that attitude to the floor.
The Intellectual Property section representatives really went to town, indicating that I had got the law totally wrong because although perhaps the words of the employee were a work of government, once it was typeset in a font with page numbers and such, the publisher had an additional veneer of copyright
131
