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On August 8, Carl Malamud wakes up early. He usually does. Most days, from the moment his eyes open, he is fixated on the mission. Early morning offers great hours to get work done, though afternoons and evenings are good for that, too. The mission takes a lot of time and effort.
For the past 25 years or so, Carl Malamud’s lonely mission has been to seize on the internet’s potential for spreading information — public information that people have a right to see, hear, and read. “Heroes for me are ones who take risks in pursuit of something they think is good,” says Brewster Kahle, founder of the Internet Archive and a frequent collaborator of Malamud’s. “He is in that category.”
Indeed, Malamud has had remarkable success and true impact. If you have accessed EDGAR, the free Securities and Exchange Commission database of corporate information, you owe a debt to Malamud. Same with the database of patents, or the opinions of the US Court of Appeals. Without Malamud, the contents of the Federal Register might still cost $1,700 instead of nothing. If you have listened to a podcast, note that it was Carl Malamud who pioneered the idea of radio-like content on internet audio — in 1993. And so on. As much as any human being on the planet, this unassuming-looking proprietor of a one-man nonprofit — a bald, diminutive, bespectacled 57-year-old — has understood and exploited the net (and the power of the printed word, as well) for disseminating information for the public good.
Even if it gets him in trouble. Even if he does it by picking sometimes arcane, even bizarre, fights.
Such a battle is the one he is waging on August 8, 2016. His theater of operations is the American Bar Association’s annual meeting, held at the Moscone West convention center in downtown San Francisco. At issue is a resolution that the organization’s House of Delegates will consider. It involves regulatory standards.
Do not yawn. True, the legality of electronically publishing building codes, plumbing regulations, and product safety rules for baby seats probably won’t be the subject matter for Andrew Lloyd Webber’s next musical. The lawyers in the American Bar Association’s House of Delegates might be excused for thinking that this would be one of the more obscure resolutions they would consider at their annual meeting. But such thinking doesn’t take Carl Malamud into account. With an endless supply of energy and a wacky bag of tricks, he has singlehandedly elevated the subject to the most contentious issue of the event, a parliamentary prizefight. If nothing else, Malamud is determined to make the barristers understand that the publication of these standards is a core American value, and allowing anything but totally free and open publication would leave a dark constitutional stain on the shag rug of liberty.
Indeed, for Malamud, the right to publish things like the annotated legal code of the state of Georgia and the European Union’s rules for infant pacifiers is an existential issue. Since 2007, he has been methodically publishing online—for free—the detailed codes for buildings, product safety, and infrastructure. These are often drawn up by private organizations, usually with the help of federal and industry experts. When legislators write regulations, they will often specify that these detailed codes are the blueprints that everyone must adhere to. The term for this is “incorporated by reference” (IBR). After this happens, the codes, every word of them, are the law. But the codes aren’t available on state or federal websites. To get to them, you have to go to the standards bodies, which often treat the codes like they still own them. But if you are, say, wiring a building, you must follow an electrical code that is part of the law, and there are serious consequences if you don’t. (Or, if you are living in a building, you might want to check if the builder followed the rules.)
Malamud believes — and case law overwhelmingly seems to back him up—that no one can claim copyright on them, or limit access to them. Justice Stephen Breyer once remarked, “If a law isn’t public, it isn’t a law.” (Once Malamud heard this, he commissioned a rubber stamp, and frequently pounds the quotation in red ink onto documents he produces.)
Some of the nonprofit organizations that helped write the codes (they are called SDOs, short for Standards Development Organizations) are very unhappy with Carl Malamud. They do claim copyright on the codes, and gain revenues by selling them; they argue that if everything is published freely on the internet, the whole system of developing those standards will collapse. (One of them compared Malamud’s advocacy of unfettered access to this branch of the law to a drunken call for free sex.) Some SDOs have taken the step of suing Public.Resource.Org, Malamud’s one-man nonprofit organization.
These suits will be argued on September 12, 2016 — today — in oral arguments on two separate cases in the Court of Appeals. In one, the American Society for Testing and Materials, the National Fire Protection Association, and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers are suing Malamud’s nonprofit for publishing IBR codes they helped create. The second has three organizations suing Public Resource because it published the standards on a single issue, fairness in educational testing. Because of the similarity, both will be heard simultaneously. Still pending is the Georgia annotated state code case, and a German one involving those EU baby pacifier rules. (Malamud calls this “the binky code.”) Also, if you are keeping score at home, note that Malamud is involved in another suit, this time as a plaintiff/petitioner, where he is demanding that the Republic of India make its standards publicly available.
Malamud’s August campaign at the American Bar Association is kind of a run-up to the court cases. Trying to determine whether these standards should be as freely distributed as other parts of the law, the ABA is proposing a compromise, known as Resolution 112. Malamud opposes it. Because ABA positions are taken often taken seriously by Congress, he has come to San Francisco to fight it.
He has been up since 4:30 am, practicing, again and again, the five-minute argument he will make to the House of Delegates when it convenes later in the day, or possibly the day after. A little after six, he leaves his hotel room. Many state bar associations have private breakfasts this morning, and Malamud will try to attend as many as he can to promote his position. He plans to hit Florida, Texas, Pennsylvania, Missouri, and Illinois. The previous afternoon, he argued to the California lawyers.
Malamud moves through the hallways of the convention center with purpose. His tie and jacket look stiff on him, especially compared to the way the attorneys wear their suits like a second skin. The contrast exposes Malamud as an inveterate outsider. Yet he has studied the organization and chatted up the incoming and outgoing executives, and he can identify key figures in this mini-legislature. When he spots one, he introduces himself, asking if they know about Resolution 112 and handing over specially printed postcards that outline key points of his argument. (He’s big on gimmicks: the official seal of Public Resource is a drawing of a seal.) Earlier he has distributed copies of a 154-page book he hand-published, Appeal to the ABA House Delegates, with the resolution text, commentary, supporting exhibits, and embarrassing emails that detail how Malamud was unable to participate in drawing up the resolution while representatives of standards organizations were part of the process.
Still, you would think that someone interested in making IBR standards more accessible might like Resolution 112. After all, it argues that any government agency that adopts one of those IBR codes must make it “accessible, without charge, to members of the public.” That’s better than the voluntary system we have today. But Malamud can’t abide 112's waffling on the copyright issue, saying that “to the extent the material is subject to copyright protection, the agency must get authorization…for public access to that material.” To Malamud, if the standard is part of the law, there can be no copyright. Period.
So Malamud is arguing against it. But here’s the crazy thing: in doing so, Malamud has wound up on the same side as the SDOs — his foes. That’s because the lawyerly intellects on the committee were loathe to challenge the copyright claims of the SDOs. So they split the baby in half. They recommended that IBR codes should be available online, but an SDO could post it in “read-only” fashion, and bar republication.
If codes are “read-only.” You can’t copy them—not even to put a passage into a newsletter or a court filing. Blind users can’t get access to them. And you certainly are not permitted to republish them. But some SDOs view even this limited distribution of IBR codes as eroding the control they currently employ. So they are opposing the resolution as well.
The whole thing is confusing. And in the middle of it is Malamud. At the breakfast of the Pennsylvania Bar, over institutional scrambled eggs and crumbly pastries, the attorneys listen politely as Malamud explains that standards are the law, and rips into the idea of copy-protected “read-only” access as satisfying the public’s need to know.
“I’m trying to understand,” says one of the lawyers. “Are you supporting or opposing 112?”
Malamud walks the group through his objections once more. As the discussion progresses, Malamud’s key point finally sinks in: a law isn’t a law unless it’s public. It’s so simple that even a lawyer can find it self evident. As Malamud leaves to pitch the Texas delegation, the Pennsylvania chair tells him, “You blew my mind.”
A welcome compliment. But Carl Malamud has been blowing minds for a very long time.
Malamud’s father was a physicist; his mother waited until Carl and his two siblings left for college, and then completed her own doctorate in invertebrate physiology. Malamud himself was a precocious but bored student, who spent some of his college money attending the Interlochen music center his senior year—he played the trumpet. He was also interested in politics, delaying college to run a local Democrat’s campaign for State Senate in a district that had always gone red. His guy lost, but Malamud wound up getting attention by winning endorsements from a bunch of well-known Republican mayors.
At the University of Indiana he “majored in beer,” he jokes, but his friends remember him as a diligent worker who always had a book on hand. After graduating, he took a year as a Kelly temp in San Francisco, an interlude that led him screaming back to academia. He enrolled in Indiana’s doctoral program in business economics and public policy. That’s when he got captivated by the digital world.
He’d long been familiar with computers; Malamud’s dad had let him play with a PDP at Fermilab when he was only eight or so. But after using the machines to help him with his coursework, Malamud went deeper into the technology. He began devouring fewer economics texts and more computer manuals. “If you read the manuals you can actually figure out how this stuff works,” he says. Instead of writing a dissertation, he joined the computer staff full-time, helping with the University’s connection to the emerging internet.
Through the 1980s he wrote technical books (he has published eight of these). Late in the decade his opus, Analyzing Sun Networks, took him into the heart of internet protocols. He was awed by their open structure. In Malamud’s mind, the freedom of internet architecture — which implicitly encouraged participation by anyone, without seeking permission — evoked an idealistic way to view policy and government. The civic and the technical became melded in his approach. He became active in the bodies that helped develop the architecture of what we know as the net today. And he began thinking about how these principles could apply to government as well.
Though it is hard to believe now, the net was not originally envisioned as a public system. But in 1989, the government had opened the internet to the public, which opened up infinite possibilities. “When we built the internet, the protocols were all driven by what we imagined the Defense Department would need,” says Vint Cerf, one of the “fathers” of the internet, now at Google. “All of our work was in that direction. We knew it would need audio and video. But once the internet became publicly available, it became amply clear there were a huge variety of applications that would be feasible.” No one understood this better than Malamud, who moved to the DC area in the early ’90s. (“I wanted to get my hands dirty,” he says.) In 1993, he set up Internet Talk Radio. The flagship show was an interview called The Geek of the Week. The two main sponsors were Tim O’Reilly’s publishing company and Sun Microsystems.
On a good day, the live audience could be counted in double figures. But audio files could be downloaded by the FTP file transfer protocol, which was how people got things from the internet in those Pleistocene times. (You can still listen to them.) After New York Times reporter John Markoff wrote a story pointing out that a new medium had come into the world, “My phone went fucking nuts,” says Malamud.
Malamud became an underground celebrity among policy wonks in DC; among his fans was then-Congressman Ed Markey, who wanted to demo the internet at a hearing. Malamud helped out, a process that involved installing a Russian satellite dish on the roof of the Rayburn building. Not long after, an aide to then-President Clinton asked if Malamud could help open an internet connection to the White House for a presidential event. It had never been done. Malamud went to the roof of the National Press Club, found a clear line-of-sight to the White House, and ran an Ethernet cable from the window in his office to to a wireless bridge beaming bits to the White House lawn.
Around that time, a Ralph Nader aide asked Markey why the database for the Securities and Exchange Commission — which stored the financial information that every listed corporation must disclose to the public — was not accessible on the internet. The current database, EDGAR, was essentially only available from a third party, which downloaded the information and sold access for hundreds of dollars per hour. Markey enlisted Malamud. With the congressman’s help, Malamud got a grant of several hundred thousand dollars to download the information on tapes and make it available online, using a server that Eric Schmidt (then at Sun) donated for that purpose. At first the SEC was skeptical, if not hostile. One person with the agency said to Malamud, “I just don’t think the internet has the right kind of people.” “I think,” Malamud replied, “the American people are the right kind of people.”
EDGAR Online was an immediate success, as investors, journalists, and analysts suddenly had access to a bounty of critical information. After a year and a half, Malamud made a calculated gamble to stop supporting the system, figuring that it had become so popular that the SEC itself would be forced to take it over. He was right. Today, anyone with the slightest interest in financial institutions would find life unimaginable without the online EDGAR database.
Malamud kept at it. “We did the patent database,” he says. “We got Congressional press credentials — the first new media credentials they ever granted — and ran tie lines into the basement of the Capital, and had live audio feeds [on the internet] from the House and Senate.”
In 1996, Malamud, intoxicated by the excitement that the internet was generating, managed to get himself funded to travel around the world to check out various activities on the emerging internet. He organized some events, met luminaries on five continents, and dubbed the enterprise “The Internet World’s Fair.” Its website drew five million visitors (a good chunk of the online population then) and was blessed by Presidents Clinton and Yeltsin, among other leaders. The book he wrote about the project began with a forward written by the Dalai Lama.
Malamud was not so saintly that he refrained from taking his shot at becoming an internet millionaire. In 1998 he co-founded a company called Invisible Worlds. It garnered $15 million in funding through three rounds of VC investment. His co-founder, Marshall Rose, describes it as a way of making databases accessible for searching and other purposes. O’Reilly, who was an investor, says that Invisible Worlds was ahead of its time. “Being early is being wrong,” he says. “Carl has always been too early.” The company went bust when the dotcom economy failed in 2000. Malamud himself lost most of his personal funds. “I thought you had to put skin in the game so I put my savings in,” he said. Thus one of the internet pioneers wound up with none of the enormous bounty that his peers had collected. (More recently, he tried another company with Rose based on the Internet of Things, but that also failed.)
He had married a talented designer at Invisible Worlds, and the couple moved to Oregon and had a son. But Malamud eventually returned to DC to become the chief technology officer for the Center for American Progress, a think tank led by longtime Clinton aide John Podesta. His main duty was setting up and maintaining its IT system. But he also freelanced in activism. The highlight of his time there was opposing the Smithsonian Museum when the foundation behind the institution granted a cable network exclusive access to some of America’s treasures.
But in 2007, Malamud told Podesta that he’d be more effective running a smaller nonprofit, and founded Public Resource. By then he and his wife had divorced. (Amicably: she does design work for the nonprofit.) Tim O’Reilly rented the organization a spacious office in O’Reilly Media’s Sebastopol, CA headquarters. “We give him a good deal,” says O’Reilly.
Public Resource got some funding from the Omidyar Network, which he used to put the entire corpus of federal Court of Appeals decisions online. Previously, accessing this information — vital to anyone who wanted to understand the law — required a trip to the library or an expensive subscription to a legal publishing firm. In 2010, Google gave him a $2 million grant. Some felt he should have used it to build up the organization, but Malamud prefers a one-man show.
“The problem with people is you’ve got to keep them going,” he says. “You have to train them, and keep them paid, and then they leave you. I said, I’m not going to do that. I’m going to spend my money on stuff that will let me bat way above my weight.”
By then Public Resource had started publishing codes. While electrical codes, fire prevention regulations, and rules for making baby seats don’t have the verve of judicial decisions or corporate filings, Malamud came to understand that these were the fine print of the citizenry’s everyday existence. Often, they determine life and death. The example he came to use was the 1911 Triangle Shirtwaist Factory fire that took the lives of 146 New York City garment workers. The tragedy led to a groundbreaking fire code, which in turn led to countless state and federal codes regarding construction, electricity, plumbing, elevators, and other aspects of the modern world. Being able to see and access these codes was essential, Malamud felt. But in 2007, the vast majority of these codes were not available online. They were stored in archives far away, or not accessible at all unless you paid an SDO or even the state itself for a copy. “The information was viewed as a profit center,” Malamud once said in a speech.
Malamud challenged this by publishing the codes online himself. “I started in 2007 with California’s Title 24, which is our building code. I bought it, scanned it, and posted it,” he says. “It cost $1,200 — a lot of money for us. It was the first time a building code was actually available on the internet. Then I began doing all the building, electrical, fire codes for the country. Then in 2012, I began taking standards incorporated into federal law and posting them on the internet.”
Malamud didn’t just take the raw scans and throw them onto a website; at times, he improved them. He sometimes sent the documents to India to have them re-keyed into HTML, so they could be resized by a browser. He might have the images redrawn by his former wife, so readers could zoom in on them. He would put mathematical formulas in XML so that readers could do calculations.
Every so often, Malamud would get a takedown notice. He would reply with a three-page letter respectfully declining, on the grounds that the law belonged to the people. And then, on August 6, 2013, a process server came to Sebastopol, CA to serve him papers. Three organizations had banded together as plaintiffs to sue his one-man nonprofit for infringing on their copyrights for 450 different standards that he had published. Several months later, this was followed by a second suit, involving a single standard covering education testing.
A 2002 case — Veeck v. Southern Building Code Congress — would seem to have settled the issue. The US Court of Appeals for the Fifth Circuit ruled, “Public ownership of the law means precisely that ‘the law’ is in the ‘public domain’ for whatever use citizens choose to make of it.” One of Public Resource’s pro bono lawyers, Corynne McSherry of the Electronic Frontier Foundation, says there are also Supreme Court decisions that make it clear that publishing laws is a constitutional right. “Copyright does not trump the Constitution,” she says.
Malamud’s legal team has asked for summary judgement, requesting that the judge dismiss the lawsuits on those legal principles. But then, the high-priced attorneys representing the SDOs are also asking for the judge to rule in their favor. Though the plaintiffs’ legal team would not speak to me, it issued a statement that says, in part:
SDOs pay for the substantial costs of developing standards with funds from the sales and licensing of their copyrighted works. This model allows the plaintiffs and other SDOs to remain independent of special interests and to develop the most up-to-date, high-quality standards. SDOs also work with governments to provide free online access to many standards.
By copying, uploading, and distributing copyrighted standards without permission, Public Resource seeks to destroy this public-private partnership model that has served the public interest so well.
The statement did not answer the question, how can you claim to copyright to the law? But that’s what the courts are for.
Malamud lives in Bodega, California, the town you see in Hitchcock’s The Birds. Sometimes you will see by his Twitter feed that he has cooked an elaborate meal — lamb stew is a specialty, as sheep are bred locally. But his existence is by and large solitary. Once a week, he takes a day off to tend to his ailing mother. But it’s mostly work. As noted, he rises early, works at home for a while, then drives the 11 miles to Sebastopol and works there. Then home again.
“There isn’t an hour a day when I might not get an email from Carl,” says David Halperin, a lawyer and policy expert who has helped Malamud with some of his legal issues. “Carl’s online, he’s always online.”
“He has a monk-like existence in some ways,” says O’Reilly. “It’s like in ‘Hamilton’: he writes like he’s running out of time.”
On the day I visit the office — a long, L-shaped space framed by a wall of books and, on the short side, a complex of scanners, printers, and tables loaded with towers of documents — Malamud is unwrapping a package that reveals a poster-sized image of Mahatma Gandhi.
Malamud was recently invited to make a speech at Ahmedabad, where the Indian pacifist had his ashram. He will give it on Gandhi’s birthday, October 2. In anticipation he has taken on something of a Gandhi obsession — biographies of the man and histories of India populate his library. And of course he has put Gandhi’s collected works online, 11 gigs worth.
This dovetails with Malamud’s battle with the Republic of India. Indignant that India — like the United States — does not allow free access to codes with the force of law, he has been petitioning the government to put documents online. In the meantime, he has ordered DVDs of the codes and published them himself — thousands of them — in many cases improving the files by rekeying or adding HTML, and then informing the Bureau of Indian Standards of his actions. The response was less than ecstatic. “BIS has not appreciated your efforts, as it is against the copyright policy of BIS,” wrote an official. Malamud’s reply reaffirmed that his publication followed national law and made a correction to the official’s letter. “Let me very clear that we did not post 192 Indian Standards on our web site,” he wrote. “We posted 19,200 Indian Standards on our web site.”
His speech, he says, will focus Gandhi’s time in South Africa, when he pursued printing. “Everyone who stayed at his ashram had to learn printing,” says Malamud, whose own friends often describe him as a “pamphleteer,” using the word as an honorific. During the trip — he will limit it to a week because his mother relies on him for care — he will meet with his legal representative in India, a former attorney general.
Does this mean that Malamud will methodically spread his crusade to all the world’s nations? Not really. He says he’d like to pursue the standards thread for a few more years, then go back to being a writer. Or maybe run for California Secretary of State. Or work for the Indian Government.
The lawsuits have made his plans more complicated. “My hope was that I would do this in a way where [the SDOs] would look at this and say, ‘That’s the future, let’s do our job,’” he says. That’s not happening, and he fears that the suits might affect the funding prospects of Public Resource. It certainly is taking a toll on Malamud, especially as he and his allies have been sucked into the legal process. “It’s been really hard. My ex-wife got deposed,” he says. And Public Resource indeed is low on money; Malamud has stopped drawing his $180,000 salary (determined after comparing compensation of those who lead similar organizations). “I have proposals in to three big foundations, but the real big ones won’t touch me,” he says. “I’m living off my retirement money right now. I think I’m at $5,000 for the year at this point for my total compensation.”
And then there is the weariness of the long-distance activist. “I’m the only guy in the world doing this, which is a little lonely at times.”
Those close to him wonder if he will ever give up a quest that is almost by definition never ending. “There will always be more to be done,” says Brewster Kahle. “Achieving a goal is overrated. Moby Dick is a testament to what happens when you achieve your goal. He wants public access to the public domain. That’s a principle, not a goal.”
By and large, Malamud pursues his mission with vigor and optimism. If he likes, he can point to many instances where he has made a difference, including in the White House, which now has a chief data scientist. But perhaps none of those meant as much to him as the attention of a single young man named Aaron Swartz. To those who know both men, it was clear that Swartz modeled himself to a degree on Malamud. Malamud knows this, and is pained at the possibility that he might have encouraged Swartz to actions that led to his tragic legal situation and subsequent suicide.
Malamud had already known Swartz, now celebrated in a movie as “The Internet’s Own Boy,” when they joined forces on one of Malamud’s projects: publishing information from the federal court database PACER. Malamud gave Swartz an account on Public Resource’s server, something he seldom offered. What he did not know was that Swartz had embarked on a clever technical scheme involving the manipulation of browser cookies to download huge volumes of PACER information from a single account. He found out when his webmaster mentioned that Swartz had uploaded over 900 gigs of documents to the server. Malamud testily told the young man that wasn’t the way Public Resource operated — when Malamud publishes, he is careful to do it in an entirely upfront manner. “I just don’t go leaping in,” he says. “I try very hard not to do anything close to hacking.”
Nonetheless, Malamud examined the PACER documents and discovered that they were filled with filings that contained personal information on citizens. After he reported this to the courts — and the transgressions were covered by the press — the FBI got involved, attempting to interview Swartz. Malamud did talk to the feds. No charges emerged. But there is a lasting suspicion in the internet community that the PACER incident contributed to the overreach of the subsequent investigation of Swartz, involving the collection of information from a database called JSTOR.
“He was taking inspiration from me, and there is still a supposition that the JSTOR prosecution was partly because the US Assistant Attorney wanted to teach him a lesson after PACER,” says Malamud. After the feds arrested Swartz for that alleged crime, Malamud cut off communications with the young man. “I didn’t want to be in a position to be deposed against him. So I kept my distance. And when he killed himself, I felt really bad, because, goddamn, he needed a friend. He needed many friends. I cried all night.” Malamud says that now, in a similar situation when a friend was in trouble, “I’d buy a plane ticket and go see him.”
The depth of Malamud’s emotions came out when he delivered what might have been the most passionate of the many elegies devoted to Swartz in multiple memorial sessions. Aaron wasn’t a lone wolf, Malamud said at the memorial in a speech so raw it is still hard to watch. He was part of an army. And I had the honor of serving with him for a decade.
After Swartz’s death, Malamud realized how high the stakes were in his own crusade. “This is not a trivial, geek thing — it’s the real world,” he says. “The work we’re doing affects society writ large, has huge implications for justice. That’s something the ABA people don’t necessarily get. A couple of standards, what’s the big deal? No, no, no… this is a fundamental rock-bottom issue on democracy.”
When the Bar Association’s House of Delegates convenes on Monday, August 8, it’s not clear when Resolution 112 will be taken up. Malamud spends the entire day sitting at the side of a ballroom at Moscone West, fearful of leaving even for a minute, in case the order of business changed suddenly to thrust Resolution 112 to the fore. But the chairperson holds off on Resolution 112 until the next day, when the entire conference is scheduled to end at noon. Many of the delegates will have planes to catch; pretty much everyone is tired.
It’s Tuesday at 10 am when the speakers in the House of Delegates finally address 112. It is one of the few contested resolutions, made more complicated because both Malamud and the SDOs urge a postponement. (Of course, their view on what should happen after that is different: Malamud wants an endorsement of the principle that standards are law and should be distributed freely. The SDOs just want the whole thing buried.) First comes the law professor who helped draw the resolution, urging passage. Then speakers siding with the SDOs.
It is finally time for Malamud to speak. With each step toward the podium he seems to gain confidence. He is going to war. He launches into the speech he has been practicing, iteration after iteration, for the past two weeks— standing in front of the mirror, recording on his phone, playing it back to see how it might be just a little better, and doing another draft for the following day.
“I am Carl Malamud,” he begins. “I have spent 25 years helping governments put information on the internet.”
His voice takes on a deeper timbre, gaining volume and rigor as he speaks, as if his speech is a sparsely gathered march that is progressively bolstered by followers as he proceeds, ending with a dense throng of raised-fisted allies at the battlefront. His words echo confidently in the high ceiling of the sterile conference hall:
Writing down the law does no good if we cannot read it. But, we must be able to do more than simply read the law. We must be able to read and freely speak the law. We must be able to speak the law without applying for a license, a license that can be arbitrarily denied by private parties. We must be able to read and speak the law to inform our fellow citizens. These edicts of government are the raw materials of our democracy, they are the bricks on which we construct our temple of justice….
Not all the delegates are paying attention, but those who do cut off conversation and look up from their papers or maybe even their boarding passes.
John Adams said that for our democracy to function properly, our citizenry must be informed. He said we must “let every sluice of knowledge be opened and set a-flowing.” But how can justice ever pour forth like a mighty stream if we do not let the law flow like water? How can we ever enter that city of equality if we lock our codes behind a cash register? How can we ever have access for all on the road to justice if we post the law high up on a cross of gold?
It would be nice to say that after this stirring oratory on the glories of the law, the delegates of the American Bar Association leap to their feet as one and clap hands until blisters form. But though Malamud does draw a respectable ovation, his words do not carry the day. The motion to postpone fails. And Resolution 112 is passed. Malamud has lost this one.
“There’s something quixotic about Carl,” says Tim O’Reilly. “But he really has been a pioneer. Now he’s doing this thing that other people don’t get. Guess what — they didn’t get what he was doing in 1993, either.”
After the vote, Malamud springs from his seat, his lips pursed. “Well, that’s it,” he says. (Later he will claim a moral victory by exposing the issues to the lawyers.) His bags are already packed and in the car. He will drive back to Sebastopol and prepare for the September 12 hearing in the US District Court in Washington, DC, where five of his pro bono lawyers will face off against a dozen or so attorneys from multiple high-powered firms, arguing whether people should be able to access the law without having to pay for it. And then he is off to India.
America’s Mahatma of access isn’t about to start sleeping late.
