The Use of Legal Crowdsourcing (“Lawsourcing”) to Achieve Legal, Regulatory, and Policy Objectives

• Date: 01 March 2016
• DOI: http://doi.org/10.1111/ablj.12074
• Published date: 01 March 2016
• Author: David Orozco

The Use of Legal Crowdsourcing

(“Lawsourcing”) to Achieve Legal,

Regulatory, and Policy Objectives

David Orozco*

INTRODUCTION

The term “crowdsourcing” was coined in 2005 to describe how some

companies replaced employees and suppliers with an undefined, gener-

ally large group of individuals via an open call on the Internet.

1

Toda y ,

crowdsourcing is a well-established method of business production,

with start-ups and established enterprises alike using this model to

create and deliver value. These enterprises range from t-shirt

*Associate Professor of Legal Studies, College of Business, Florida State University;

dorozco@fsu.edu. The author thanks Jake Linford for offering helpful comments

and Barbara Kaplan for providing thorough research assistance. The author likewise

appreciates the useful feedback provided by the 2015 Academy of Legal Studies in

Business conference attendees and the anonymous referees who reviewed this

article.

1

William Safire, On Language,N.Y.TIMES (Feb. 5, 2009), http://www.nytimes.com/

2009/02/08/magazine/08wwln-safire-t.html (describing how Wired Magazine editors

JeffHoweandMarkRobinsoncoinedtheterm);see also Jeff Howe, Crowdsourcing:

A Definition,C

ROWDSOURCING (June 2, 2006, 10:30 AM), http://www.crowdsourcing.

com/cs/2006/06/crowdsourcing_a.html (“Simply defined, crowdsourcing represents

the act of a company or institution taking a function once performed by employees

and outsourcing it to an undefined (and generally large) network of people in the

form of an open call. This can take the form of peer-production (when the job is

performed collaboratively), but is also often undertaken by sole individuals. The

crucial prerequisite is the use of the open call format and the large network of

potentia l laborers .”).

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company Threadless

2

and online encyclopedia Wikipedia

3

to the

crowdfunding platform Kickstarter.

4

Crowdsourcing has proven to be

a viable means of production and has proliferated rapidly because it

provides access to capital, new ideas, and talent by leveraging the

low-cost, global, open, and distributed power of the Internet.

5

Innovators now are applying the crowdsourcing model to legal issues

in a variety of novel ways. For example, Dorian Nakamoto is crowd-

sourcing the funding of his lawsuit against Newsweek.

6

The magazine

portrayed him as the creator of bitcoin,

7

which he claims is false and

has resulted in harm to him and his family.

8

In a YouTube video posted

2

About Us,THREADLESS, https://www.threadless.com/infoabout/ (last visited Oct. 31, 2014).

The designs for Threadless t-shirts originate from the crowd and are voted on by purchas-

ers. The company describes itself as follows: “You are Threadless. You make the ideas, you

pick what we sell, you’re why we exist.” Id.

3

Wikipedia,WIKIPEDIA, http://en.wikipedia.org/wiki/Wikipedia (last updated Oct. 20, 2015).

According to its own Wikipedia entry,

Wikipedia is a free access, free-content Internet encyclopedia, supported and hosted

by the non-profit Wikimedia Foundation. Those who can access the site can edit most

of its articles. Wikipedia is ranked among the ten most popular websites and consti-

tutes the Internet’s largest and most popular reference work.

... As of February 2014, it had 18 billion page views and nearly 500 million unique

visitors each month.

Id. (footnotes omitted) (reflecting also 120,000 active editors and over twenty-six million

total accounts).

4

Kickstarter Stats,KICKSTARTER, https://www.kickstarter.com/help/stats?ref5hello (last updated

Oct. 20, 2015) (reflecting just over $2 billion pledged to Kickstarter projects, approxi-

mately 94,000 of which were successfully funded).

5

Jeff Howe, The Rise of Crowdsourcing,14WIRED MAG., 2006, at 1, 4. Also, others have

argued that the impetus for crowdsourcing stems from the broader movement referred to

as Web 2.0, a term that refers to the power of individuals to participate in creating the

Web’s content. See YOCHAI BENKLER,THE WEALTH OF NETWORKS:HOW SOCIAL PRODUCTION

TRANSFORMS MARKETS AND FREEDOM 30 (2006).

6

Cassandra Khaw, Alleged Bitcoin ‘Creator’ Is Crowdfunding His Lawsuit Against Newsweek

Using Bitcoin,T

HE VERGE (Oct. 14, 2014, 2:43 AM), http://www.theverge.com/2014/10/14/

6973389/dorian-nakamoto-lawsuit-newsweek.

7

See Reuben Grinberg, Bitcoin: An Innovative Alternative Digital Currency,4HASTINGS SCI.&

TECH. L.J. 159, 160 (2012) (discussing how bitcoin is a “digital, decentralized, partially

anonymous currency not backed by any government or legal entity” that relies on peer-to-

peer networking cryptography).

8

Khaw, supra note 6.

146 Vol. 53 / American Business Law Journal

in April 2014, Mr. Nakamoto thanked supporters who had helped

finance his lawsuit by contributing bitcoins that were worth more than

$23,000 at the time.

9

In a different setting, one forward-thinking legislator experimented

with crowdsourcing to encourage and allow citizens to revise and draft

proposed legislation before it is submitted for a vote in the legislature.

10

For example, California Assemblyman Mike Gatto pioneered an effort

earlier this year to let residents craft probate legislation.

11

Assemblyman

Gatto used the online collaboration tool Wikispaces to allow residents to

edit and make proposed changes to the draft legislation.

12

The Califor-

nia Assembly and Senate approved this crowdsourced bill; it was vetoed

by the state’s governor.

13

Assemblyman Gatto has recently announced

his intent to crowdsource privacy legislation in the near future.

14

In other cases, private entities use legal crowdsourcing techniques to

achieve strategic legal benefits.

15

For example, companies that have

9

Aantonop, Dorian Nakamoto—Thank you Bitcoin Community,YOUTUBE (Apr. 22, 2014), http://

www.youtube.com/watch?v5w7YmJZ-qVW8&feature5youtu.be; Tim Hornyak, Dorian

Nakamoto Prepares for Possible Lawsuit Against Newsweek, PCWORLD (Oct. 13, 2014, 11:45

PM), http://www.pcworld.com/a rticle/2828712/dorian-nakamoto-prepares-for-possible-

lawsuit-against-newsweek.html.

10

Melanie Mason, Assemblyman Mike Gatto to Use ‘Crowdsourcing’ to Craft New Bill, L.A. TIMES

(Dec. 16, 2013), http://articles.latimes.com/2013/dec/16/local/la-me-pc-mike-gatto-wiki-bill-

20131216.

11

Brian Heaton, Is Crowdsourcing the Future for Legislation?,GOV’TTECH. (July 2, 2014),

http://www.govtech.com/internet/E xperts-Predict-More-Legis lation-Will-Be-Crowdsourced.

html.

12

Id.

13

See AB-1520 Guardians ad litem: Animals,CAL.LEGISLATIVE SERV., http://leginfo.legislature.

ca.gov/faces/billStatusClient.xhtml?bill_id5201320140AB1520 (last visited Oct. 20, 2015);

see also Heaton, supra note 11 (referencing at least one other state legislator utilizing legis-

lative crowdsourcing; New York City Council Member Ben Kallos has opened proposed

legislation for public comment using the online collaboration tool GitHub).

14

MikeGatto Wiki,WIKIA, http://mikegatto.wikia.com/wiki/MikeGatto_Wiki (last visited Feb.

2, 2015).

15

See Robert C. Bird & David Orozco, Finding the Right Corporate Legal Strategy, 56 MIT

SLOAN MGMT.REV., Fall 2014, at 81, 81–82 (discussing that law, in general, can be used to

achieve private strategic benefits rather than just compliance or risk management–related

goals).

2016 / Legal Crowdsourcing (“Lawsourcing”) 147