Open Source Contracts: Part 1

Imagine if lawyers from different firms collaborated on standard documentation for everyday legal transactions, e.g. loan agreements, wills, conveyancing etc.  What if it was all freely available to their clients too?  We call this open source contracts (“OSC“).  

This is part 1 of a 4 part series of posts exploring whether the legal industry could and / or should adopt an open source approach to legal documentation.

Part 1 explores the concepts of open source software in order to understand how this paradigm for software development could be applied to the development of legal documentation.  

Check out the full series: part 1; part 2; part 3; and part 4.

Software can be divided into two camps – OSS and CSS:

As you can see from the above, for most applications there is an OSS and a CSS option.  

For instance, Windows is a CSS operating system whereas Linux is an OSS operating system.  Both can be used to operate your computer and run its applications.   Likewise, iOS on iPhone is CSS whereas Android on Samsung and other devices is OSS.

1. What is CSS?

Much software is proprietary.  Ownership and access are tightly controlled by the creator, whether that is one or more developers or a company.  These systems are developed in private and without external collaboration.  The ability of outsiders to access the source code, update, correct or extend it is locked down.

Non-techies are most familiar with CSS.  The biggest consumer tech companies, Microsoft and Apple jealously guard their source code, fiercely policing anyone who seeks to use or edit it without permission. However, these giants have started to change and decidedly migrate over to an OSS model.

CSS is how today’s law firms operate: alone, independently creating and then jealously guarding their internal know-how, their template documents, legal research, and precedents.  We call this closed-source contracts (“CSC“).

2. What is OSS?

Unlike CSS, the OSS source code (i.e. the collection of computer instructions written in a human-readable programming language, e.g. Python, Java, JavaScript etc) is available with a license in which the copyright holder provides the rights to study, change and distribute the software to anyone for any purpose.

Often, but not always, OSS may be developed initially or continually using cloud collaboration tools such as GitHub (an online platform to share, update and merge code on development projects).  OSS means developers can enhance the OSS and therefore the consumer experience.  Some of the world’s most significant software is OSS.

For instance, Linux, originally begun by Finnish Computer Science student Linus Torvalds as a project to create a free operating system, runs every Android phone and tablet, is working behind the scenes across the internet and even runs many SmartTVs.  Did we also mention Facebook, Google, Pinterest and Wikipedia all run on Linux?

This is not how today’s law firms operate.  As we describe above, law firms and their legal documentation develop in private and with little sharing or collaboration in the legal community to develop standard documentation in order to enhance the consumer experience.

Will this change? Will law firms adopt OSC over CSC with regard to the legal documents they draft, negotiate and offer to their clients? If law firms adopt OSC would consumers benefit?  

These questions deserve discussion and decision.

To coders, understanding the OSS movement and witnessing the booming sharing economy fuelled by the likes of Uber, AirBnB etc, it seems natural to ask whether the law is compatible with these themes?

Before launching into whether the OSS vs. CSS paradigm maps to legal, it’s worth pausing to consider the key differentiators between OSS and CSS. 

These are: 

1. Cost
2. Service
3. Customisation
4. Innovation
5. Security
6. Innovation
7. Usability

OSC = law firms creating legal products (e.g. contracts) via the open-source software (“OSS“) development model.

Next time

In the next article, we’ll discuss whether the OSS vs. CSS paradigm can be applied to legal documentation.  Jump to the next article in this series by clicking part 2.

Check out the full 4 part series: part 1; part 2; part 3; and part 4.