From Lexical Analogy to Creative Analogy in Legal Informatics

Houda Araj

http://www.erudici.com/livres/

Contents

• Introduction
• 1 Analogy in the
field of Copyright
• 2 Analogy in legal
Informatics
• 3 Framework for
Creative Analogy
• Conclusion
• References

Introduction
Analogy is pervasive in legal reasoning because the search for analogous cases is
founded on the notion that like cases should be treated alike. Every time a new case has
to be settled in court, the legal expert turns to the past to find old cases that help to
resolve the problems. As a consequence, he connects the new case to a known
category of law by induction, and retrieves the cases already falling under the same
category of law by deduction. The new relation between decided cases and a new case
result in drawing an analogy or a metaphor. This principle of justice is in accordance with
a cognitive assumption which holds that seeing the bond that unites several facts though
may be obscure and difficult to grasp can provide new insight to resolve cases. In
contrast, the information retrieval approach to recalling text supplies a poor translation of
this rule of law and cognition. In this text, an effort is made to comprehend how legal
experts map analogous cases while pursuing convergent thinking, to find a precedent
and solve a problem in the field of copyright (1) . It also has the aim of showing that legal
informatics does not integrate any of the understanding of a legal expert's cognitive
ability to resolve problems. In seeking cross-disciplinary agreement between divergent
fields, I will prove that a shift in our conception of analogy is required in order to enrich
the theory of law and improve the mechanism of information retrieval and case-based
reasoning. A better grasp of analogy can help us improve information and knowledge
systems in the legal field

I. Analogy in the Field of Copyright

To solve a problem, convergent thinking helps to associate a new problem with an old
one by combining different ideas. In the case of copyright, the statute provides the
framework for this type of reasoning. The protection of copyright is granted automatically
if the work falls into legal categories, and poses difficulties from the moment a gap
appears between existing law categories and new realities. In practice, there is always a
distance between legal categories and new problems which makes the process of
resorting to old cases very important. In Apple Computer v. Macintosh, 1987 1 C.F. 173,
the issue was to determine if the ROM was entitled to the protection of copyright. The
question addressed to the court can be stated as follow: Is a computer program which is
embodied in a silicon chip a subject matter in which copyright exists ? To answer the
question, many equivalences have been made with decided cases. These equivalences
can be translated in metaphors and analogies because both are the outcome of
reasoning by analogy (2).

Analogies and metaphors stand on a continuum: analogies occur in periods of stability,

while metaphors originate in situations where the fundamental issue is thrown into
question. These two types of expressions are not exclusive one to another, but instead
coexist. When a new problem arises, the legal expert turns to the creation of metaphors;
however, to solve a current problem, he will content himself with searching for an
analogical resemblance that is familiar to him. The more the objects confronted with
legal categories show a habitual kinship with legal categories, the less the legal expert is
invited to create metaphors by analogy. The less the objects confronted with legal
categories present a usual resemblance with known objects, the more analogical
inference will lead to the creation of metaphors. When dealing with computer works, in
certain cases, analogies with literal works will suffice to resolve the case. For other
cases, however it is only through metaphors that the settlement of the case can be
achieved.

Reasoning by analogy allows one to relate objects in familiar ways, thus creating
analogies. For instance, in Compo Company v. Blue Crest Music, 1 S.C.R. p.357, the
court resolved the problem of the music presser by relying on an analogy that may be
expressed as follows:

It is helpful in analyzing the relationship between

the record publisher and presser in the field of
musical works to examine the parallel relationship
between the printer and the publisher in the field
of literary works (Compo Company v. Blue Crest
Music, 1 S.C.R. p.364).

In West Publishing v. Mead Data. 799 F. 2d. 1228, West alleged a copyright
infringement in the reporter's pagination. The argument of Mead Data lies on linking
pagination to the numerical system and to factual data. According to Mead Data, page
numbering is a subject that should be disqualified from copyright, since the protection of
a numerical system is inconceivable. Also, Mead considered West's pagination to be
beyond copyright protection since it is only a matter of factual data. The equivalence that
Mead Data established between the telephone book and the pagination of West reports
was not overturned. Nevertheless, the judge made it clear that factual data could receive
protection:

The names, addresses, and phone numbers in a

directory are "facts"; though isolated use of these
facts is not copyright infringement, copying each
and every listing is an infringement. (Hutchinson
Telephone V. Fronteer Directory, 770 F.2d 128
(8th Cir.1985). Similarly, MDC's wholesale
appropriation of West's arrangement and
pagination for competitive, commercial purpose is
an infringement (West Publishing v. Mead Data.
799 F. 2d. 1228).

Moreover, the judge considered that the use of a numbering system in a specific goal
could meet the criteria of copyright. He recognized copyright protection in West's
arrangements but not in the numerical system.

Analogies are insufficient to guide the resolution of new cases since we often need more
than a familiar relation to settle the case. Resolution of problems by metaphors
characterizes periods where new realities exert pressure on legal categories. They allow
one to speak one thing in terms of another thing, by qualitatively comparing
heterogeneous objects which are not necessarily on the same level. In the case of legal
metaphors, a new relation appears that does not figure among the current associations
making up the mental equipment of a legal expert. These new expressions create new
relations that deepen the expert cognitive ability since they introduce an unknown
relation. This trend to settle copyright problems by relating cases in relation to unknown
objects in law is not new. The phenomenon can be observed every time that a new
object has been confronted with legal categories. Connections can be established by
relating cases according to the rule of precedent3. For instance, in Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, the issue was the extension of copyright
protection to photographs which were not protected by law, since photography was an
unknown art in that period. According to the photographers, photographs were protected
by copyright since they are equivalent to writing or artistic works. The judge established
that:

The only reason why photographs were not

included in the extended list in the act of 1802 is,
probably, that they did not exist, as photography,
as an art, was then unknown (Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. p. 58).

...photography is to be treated as art, and the

author is the man who really represents, creates,
or gives effect to the idea, fancy, or imagination
(Burrow-Giles Lithographic Co. v. Sarony, 111
U.S. p.61).

On the other hand, the defendant maintained that photographs are not writing and
consequently should not receive protection. In his argument, he established differences
between writing and photography, and between photography and artistic work. The
following is the essence of the argument against extending copyright protection to
photography:

The argument here is that a photograph is not a

writing nor the production of an author. ... a
photograph being a reproduction, on paper, of the
exact features of some natural object, or of some
person, is not a writing of which the producer is
the author (Burrow-Giles Lithographic Co. v.
Sarony, 111 U.S. 56).

...an engraving, a painting, a print, does embody

the intellectual conception of its author, in which
there is novelty, invention, originality, and
therefore comes within the purpose of the
constitution in securing its exclusive use or sale to
its author, while a photograph is the mere
mechanical reproduction of the physical features
or outlines of some object, animate or inanimate
and involves no originality of thought or any
novelty (Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 59).

In Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130, an equivalence was
established between news articles and photographs. The judge summed up his opinion
using the following mathematical analogy: the photograph was for Dallas' event what the
Press article was to the news. This analogy specifies that the news is not protected, but
the article that made up a new arrangement of ideas is protected. With these words the
judge explained the rationale of the case:

"news cannot be copyrighted" citing the

 Associated Press case... The court carefully
distinguished between the "new element," the
"substance of the information" on the one hand,
and the particular form or collocation of words in
which the writer has communicated it" (Time
Incorporated v. Bernard Geis Associates. 293 F.
Supp. 143).

The legal thinking that aroused in the instance of photography has been extended to
computer technology. By creating resemblances between the objects protected by
copyright and the litigious object, a settlement of the case can be realized. This transfer
of legal knowledge from the field of literature and fine art to computerized works leads us
to tie computer works to literary, artistic and musical creation. For instance, a game is a
creation that shares the qualities of traditional works and distances itself from them by
the novelties of the product. The program that causes the video to run could be
compared to literal text. Similarly, the graphics or the photographs produced on the
screen or in the documentation are judged in the same manner as fine arts. The sound
produced by the game is regarded as a musical composition and the sequence of
images as a film. To the same extent, data base and expert system made up of a
collection of works introduce both new and traditional problems. New problems relate to
software, user interaction, the interface or the entry formats. Traditional problems refer to
the compilation of data, manual of reference or indexation terms. These works present
the traditional problems of copyright, and they are equally likely to create new problems.
Apple Computer v. Macintosh, 1987 1 C.F. 173, shows that the dénouement of
Copyright is improbable. In correlating the ROM, which is a new object that is unknown
in law, to a musical record which is known, the plaintiff argued:

On the physical level, there was no difference

between a device such as a record which
"contains" a musical work by virtue of the grooves
impressed therein, and a ROM chip which
"contains" a program by virtue of the pattern of
conductive and non-conductive areas created
therein (Apple Computer v. Macintosh, 1987 1
C.F. 193).

Programs should no more be considered machine parts than videotapes should be

considered parts of projectors or phono-records parts of sound reproduction equipment
(Apple Computer Inc v. Franklin Computer Corp. (1983), 219 U.S.P.Q. 113).

Another argument has been used to relate the ROM to the rods included in a book that
described a new method to teach arithmetic. The defendant, who tried to preserve the
ROM from the protection of copyright count on Cuisenaire v. Reed [1963] V.R. 719
(S.C.)., produced an argument based upon the doctrine of process-expression
dichotomy, which distinguishes the work that describes the art from the art itself. The
argument was premised on the following analogy:

Were the law otherwise, every person who carried

out the instructions in the handbook in which
copyright was held to subsist in Meccano Ltd. v.
Anthony Hordern and Sons Ltd. (1918) 18 S.R.
(N.S.W) 606 and constructed a model in
accordance with those instructions, would infringe
the plaintiff's literary copyright. Further, as Mr.
Fallagar put it, everybody who made a rabbit pie
in accordance with the recipe in Mrs. Beeton's
Cookery Book would infringe the literary copyright
in that book (Apple Computer v. Macintosh 1987
1 C.F. 184).

The plaintiff retorts by showing the distinctions between the rods case and the ROM,
producing an analogy that better fits the case. The argument is stated in these words:

I do not see that the decision in the Cuisenaire

case in any way assists the defendants in this
case. The computer program when written is
clearly a literary work. What is more, its
embodiment in a silicon chip retains the form of
expression of the original work. The program in its
source code version can be retrieved (read) by a
process of translation or translations from the
ROM chip. There was no such relationship
between the words in the book "Les nombres en
Couleurs" and the rods which were in issue in the
Cuisenaire case. No part of the text of the book
could be retrieved or "read" from the rods (Apple
Computer v. Macintosh 1987 1 C.F. 185).

Another argument shows that new technology will not defeat copyright protection. The
plaintiff established a metaphorical relation between the ROM and text translated into
Morse code. The argument stands as follows:

An analogy can be drawn to the conversion of a

text into Morse code. If a person were to sit down
and convert a text into a series of dots and
dashes of which Morse code is comprised, one
might argue that the resultant notations were
really instructions to the telegraph operator on
how to send the message. But the message
written in Morse code, in my view, still retains the
character of the original work. It is not a different
literary work. Similarly, a text written in shorthand
might be said to constitute a description of the
oral sounds of the text if it were spoken aloud
(shorthand being phonetically based), but that
would not make it a different literary work from the
long hand version (Apple Computer v. Macintosh
1987 1 C.F. 182).

On his side, the defendant stated that digital information differs significantly from printed
information. Consequently, he equated the ROM with spoken word in the sense that both
lack the requirement of fixation. In his view, the ROM does not merit the protection of
Copyright. He states:

I see an analogy between a statement such as

"the Prime Minister of Canada met with the
President of the United States on March 17" and
"the square on the hypotenuse of a right-angled
triangle is equal to the sum of the squares on the
other two sides." Neither of these phrases as
such, apart from a larger text in which they might
appear, would be subject of copyright (Apple
Computer v. Macintosh 1987 1 C.F. 187).

Production, Inc. v. Baer 437 F. Supp. 1390, shows that Copyright is granted in non literal
aspects of a work such as the theme, the events and the representation of characters. In
Whelan Associates v. Jaslow Laboratory, Inc., 609 F. Supp. 1307, the court held that
Copyright protects the structure of a program. The judge found that even where there is
no similarity between the two programs written in different language, the structure of the
program is substantially the same. This means that such non-literary aspects of
programs as structure have been studied in the light of traditional precepts of Copyright.
The software and literal works present analogies that are illustrated by Nimmer in the
following paragraph:
 Structure is not entirely "nonliteral" While it is less
literal than the individual instructions, it organizes
the text of the program like chapters, sections and
paragraphs organize the text of a book (Nimmer,
Melville B. 1988, 13 (A)).

By way of contrast, the Synercom Technology Inc. v. University Computing Co. 462
F.Supp. 1003, was a case where the judge considered that entries'formats should not
receive the protection of copyright, since the order of ideas that the format
communicates is analogous to grammar, which itself could not receive protection. The
judge expressed himself in the following manner:

An input format may best be thought of as a

Language, or perhaps more precisely, a system
of grammar. One communicates with a program
by providing it with data in its own language, here,
the input format. Thought of this way, Synercom
was an easy case, for there can be no more
protection for inputs formats than for the English
language itself (Synercom Technology Inc v.
University Computing Co. 462 F. Supp. 1013).

The court followed the merger doctrine that denies copyright protection to expression
that is inseparable from the ideas or processes underlying the expression. To illustrate
this doctrine, which did not seem clear, the judge drew an analogy with the automobile
industry. The judge's opinion on this point was as follows:

A hypothetical, oversimplified, may serve to

illuminate the idea versus expression controversy.
The familiar "figure-H" pattern of an automobile
stick is chosen arbitrarily by an auto
manufacturer. Several different patterns may be
imagined, some more convenient for the driver or
easier to manufacture than others, but all
representing possible configurations. The pattern
chosen arbitrary, but once chosen, it is the only
pattern which will work in a particular model. The
pattern (analogous to the computer "format") may
be expressed in several different ways. By a
prose description in driver's manual, through a
diagram, photograph or driver training film, or
otherwise (Synercom Technology Inc v. University
Computing Co. 462 F. Supp. 1013).

Another example may be provided in which experts forecast better protection for the
most sophisticated computer technology in the light of copyright rules. The author
establishes the following analogy:

By analogy, a computer program is "programmed"

to perform a specific function by entering a
copyrightable software program; a neurocomputer
may be "programmed" to perform a specific
function by setting a set of weights to certain
values. Alternatively, the weights may be
considered akin to a data base, which is
copyrightable (Wenskay, Donald L. , 1990,
p.235).

Metaphors can take many forms. In reasoning with regard to precedent they take the
form "X is Y". Metaphors with two terms can be translated into a mathematical analogy
( X is for Y what W is for Z) which is a metaphor with four terms. They can also take the
form of comparison. The following expressions are metaphors converted to
mathematical analogy:

ROM is to the object code what the translation is to the original work.
ROM is to x what the rods are to the book.
ROM is to x what the sleeve diagrams are for x.
ROM is to the computer what the cassette is to the tape-recorder.
ROM is to the computer what the disk is to a turntable.
ROM is to the object code what the reproduction is to original work.
ROM is to the object code what the perforated notes are to musical work.
ROM is to the operating system what the piano rolls are to piano.
ROM is to the computer work what the plate is to musical work.
ROM is to x what a mathematical form (abstract idea) is to a work of expression.
ROM is to x what the accounting form is to accounting.

These expressions show an order in the presentation of the two terms. The theme
should precede the phorus, since the phorus is better known than the theme; it should
clarify the structure of the theme. The ROM (theme) is less well known than the
translation (phorus) and the qualities of the phorus are transferred to the theme.
Therefore, transfer direction starts from the phorus, where the qualities are salient, to the
theme, where the qualities are less salient. In translation, the conversion is salient while
in the ROM, this quality is not salient.

This review shows that copyright is not outmoded. First, the emergence of new
technologies does not lessen the importance of the copyright since the new technology
does not challenge the rationale of the law. Secondly analogy does not lose its
importance to the reform of copyright since there will always exist a gap between new
realizations and the law. For example, computer programs were not protected by
copyright, since they were unknown at the time of the drafting of the legislation. Since
then, computer programs has been explicitly protected by the law, but new problems will
arise which require new solutions. Copyright played a major role in the past, is still
important for the present and will continue to be important for the future because
copyright rules will be extended by analogy to new cases. This sample of reasoning by
analogy in copyright law contradicts the theory of law, which rejects analogy in legal
reasoning. Analogies and metaphors are at the heart of problem resolution. The object of
these metaphors is to:

Transfer knowledge from an old case to a new

case.
Stimulate argumentation through disanalogies.
Resolve a problem in copyright law by the
convergence of divergent ideas.
Reform the law.

The Common Law expert extends legal categories to new situations by analogy. In the
process of extending his reasoning, he brings together cases beyond the appearance of
things creating metaphors and analogies.

II. Analogy in legal informatics

Analogy in legal informatics differs from analogy in law. In legal informatics, cases are
clustered according to lexical commonalities. The expert in law, on the other hand,
categorizes situations according to the abstract qualities of cases. here are two
approaches to legal informatics. The first known as information retrieval and the second
is case-based reasoning.

1. IR

The objective of IR is to return full-text documents maximizing the combination of

precision and recall, given a well formulated query. Recall refers to how much
information is retrieved in response to a broadly formulated query. Precision refers to
retrieval that responds to a more narrow query. In practice, recall and precision tend to
operate in trade-off relationships. The increase in recall is achieved at the cost of loss of
precision. The optimization of precision decreases the recall There are four facets to
information retrieval.

• Indexing

The first approach, common in traditional IR models, places emphasis on mathematical

techniques. The second approach stresses linguistic knowledge to generate an index.
The integration of statistical approach to the natural processing approach at either the
query level or at the indexing level is perceived as the to the creation of an intelligent
information retrieval system. Statistical techniques, as a rough method, considers the
text as data. In keyword indexing, every word provides an entry to the text without
discrimination. In weighted indexing, the decision to select a word as a candidate to
recall text depends on the term frequency. The idea in weighted indexing is to give a
very low weight to words that receive very high frequency and very high weight to rare
terms. In probabilistic indexing, the frequency of term occurrence in each document, and
its distribution over documents, constitute a critical factor affecting the selection of the
surrogate. Probabilistic indexing is explained by Rijsbergen as follows:

A term with high total frequency of occurrence is

not very useful in retrieval irrespective of its
distribution. Middle frequency terms are most
useful particularly if the distribution is skewed.
Rare terms with a skewed distribution are likely to
be useful but less so than the middle frequency
ones. Very rare terms are also quite useful but
come bottom of the list except for the ones with a
high total frequency (Van Rijsbergen, C.J. 1979,
p.26).

Correspondingly, similarity value between pairs of documents is computed by taking into

account common descriptors between documents. This similarity value is stored in a
matrix, which reflects the degree of relatedness between pairs of documents. Many
clustering methods are based on probabilistic indexing.

Criticism of conventional approaches to IR encourages the integration of statistical

analysis to natural language processing. Westlaw offers an interrogation in natural
language. In the first place, "stop words" are removed from the query. The text retrieval
engine also has the ability to do the morpholgical analysis of words, or stemming. For
example, a stemmed search on "legislation" might be functionally transformed into a
search for: "legislator", "legislate", and so on. A common feature is to break down a
plural noun to its singular, comparative (slower) and superlative (slowest) adjective to its
stem (slow), gerund verb (showing), past tense verb (showed), past participle verb
(shown) and singular verb (shows) to its original stem. Also, the option is available to
make use of lexical associative connections supporting serendipitous search and
improving recall. However, little is done to resolve ambiguity. For example, a search that
contains an ambiguous word can not be narrowed to its specific meaning by context
interpretation.

• Query

The boolean query permits the combination of words to create a complex expression.
The difficulty with this artificial language is that the user has to forecast, using algebra
and a rigid syntax, all the variations of natural language sentences according to a
semantic not very well known to him. Usually human language does not lead itself to a
straightforward translation into mathematical language. In contrast to boolean queries
(4), natural language queries allows the use of plain English to access the textual data
base. By enhancing boolean by natural language processing, some information retrieval
system uses human language to communicate with users and uses boolean logic behind
the scene.

• Document query comparison

In two valued comparison, documents are either relevant or irrelevant. The retrieval of
documents consists of comparing an algebraic formula with organized files in order to
compute an answer according to the feature wanted. The retrieval is based on the idea
that syntax of the first order predicate is translated into set theory. For a one word query,
the system computes one set, the elements of which are documents. For a complex
query, the system computes one set for every query word to which set operation is
applied. On the other hand, in one truth value, the relevance is a question of degree. For
a simple query (one word) the system ranks, in order of relevance, all the documents
that containing the words, relying on the weight attributed to each word in the document.

Word1 = doc1, doc5, doc7, doc8, ...

0.5 0.7 0.1 0.0
word2 = doc4, doc5, doc7, doc9 ...
0.5 0.3 0.5
word3 = doc3, doc6, doc4 ...
0.6 0.8

For a complex query, the system computes two sets and combines them with "or" to
form only one set that can be sorted by the degree of relevance. The sorting can rely on
boolean logic; the document having both words is ranked higher than the document that
possesses one single word. This strategy affords a remedy to the boolean strategy,
which rests upon two-value logic, by adopting a unique truth value. With this in mind, it
uses the power of logic to combine subjects and compose a complex query, eliminating
the defect of dividing the world into relevant and irrelevant. However, probabilistic
indexing, which does not depend upon inverted files but on a matrix of similarity,
attributes a value that measures the similarity between the query and every document in
the base. This value will help to rank the documents by their degree of relevance.

Using a key word search is neither appropriate nor helpful in many cases. The search
result does not lead someone to precedents because the search for similarity is too
superficial. What is common to legal informatics systems is that they provide, in
response to a query expressed in keywords, a series of decisions that contain these
keywords, claiming that these decisions can stand as precedent. There are many reason
why information retrieval does not locate the relevant information and instead finds the
irrelevant. Even in the best of situations, when the user knows exactly what he is looking
for, the retrieval of information is jeopardized by:

The analogical nature of concepts or the open-texture.

The absence of syntax in the surrogate of texts.
The lack of equivalence between natural combinatory syntax and set
theory.
The assumption that each element of the text is a physical entity and the
consideration of each entity as a signal that conveys one meaning (co-
occurrence and occurrence determine semantic relevance)
The fact that the choice of surrogates that represent the text is computed
statistically.
The idea that syntax conveys semantics.
The assumption that relevance is equal to presence and irrelevance is
equal to absence.
The difficulties in working with the compromise between recall and precision
The lexical difficulties in finding morphological and semantic variants for the
search query.
The difficulty in predicting of syntactic and semantic variation.
The fact that the similarity between cases lies on lexical similarity.

The bond between two cases is based on the coincidence of shared words. Therefore,
the legal textual data base can be seen as tool to document a known solution rather than
to find an answer to a legal question. It is when the answer is already known that IR can
help to locate a case. Hence there is difficulty in seeing such systems as a reflection of
the capabilities of a human expert in the field.

2. Case-Based Reasoning

In CBR, when a new problem is encountered, the system retrieves similar cases from
the case base and constructs a solution to the new problem based on existing solutions.
Rather than creating a solution from scratch, past experiences can be recalled and
adapted to guide problem solving. The best match is selected and adapted to fit the
current case, based on the differences and similarities between two cases.CBR
techniques involves representation, indexing and retrieval. Combining various
knowledge types with reasoning methods present a challenge to the CBR task.

• Representation

The knowledge approach structures retrieval by using enriched representation to which

similarity matching techniques are applied. Cases can be represented as frames that
have attributes and value. They can also be represented as decision trees or as sets of
rules that can describe the decision process. The way the case is represented, and the
attributes described, significantly affects the indexing and the retrieval.

• Case organization

A key issue in case-based reasoning is how to index cases to retrieve similar cases.
Many approaches have been suggested to index cases. When cases are represented as
frames with attributes and value attached to these attributes, the system organizes
cases according to this information which can later be retrieved. The match between a
new case and an existing one is performed attribute by attribute. When cases are
represented in a tree, hierarchical retrieval is used to retrieve the case that best matches
the existing cases.

• Search and comparison

In case matching, the new case attribute should match the attributes of the cases stored
in order to be retrieved. In weighted case matching, the algorithm determines the match
using the weight assigned to each attribute. Hierarchical retrieval is used when cases
are represented in a tree. This approach searches a tree structure. The best match
serves to construct an argument.

The computation of similarity between cases represented as frames is not a paradigm

shift from the information retrieval system. The CBR approach does not take into
account the nature of legal problems. The comparison between cases is one-to-one and
goes from particular to particular, which goes against the theory of law. Case reasoning
is brought down to analogy. Analogy is reduced to similarity. The computation of
similarity is limited to counting common features. The more factors two cases share, the
more similar they are. Analogy is seen as a model of retrieval and not a model which
generates new ideas. With this view, it is clear that CBR is more a knowledge approach
to recalling texts than a knowledge approach to find a precedent. What is common to
these approaches is a misunderstanding of the nature of similarity, the rationale of
analogy and case reasoning. It is universally agreed that each time we have an analogy
we have a computation of similarity 5. But it less obvious that not every type of similarity
is conducive to analogy. Weak similarities do not lead to analogy but to irrational and
primitive thought. By showing that similarity is a complex notion one can explain the
generation of distant analogies, by showing that in such cases dissimilar cases are
placed in relation. Concurrently, there is a misconception regarding the nature of
resolving cases. Cardozo is among those who claims that reasoning by case is more
than a process of analogy built upon strong similarity. Cardozo argues that when you
unravel the consequences of treating Hynes' conduct as analogous to that of trespasser,
the result is a flurry of absurd conclusions about who will be owed a duty and who will
not. Cardozo resumes what the doctrine of judicial precedent imposes on the judge:

The doctrine of judicial precedent is not simply a

mechanical process of matching similarities and
differences. It is not merely a science of
comparisons for it embodies the art of
interpretation; the art of propounding the principle
to be derived from each case (Cardozo, Benjamin
N. 1921, p.97).

The computation of similarity plays a predominant role in reasoning by analogy, and

reasoning by analogy plays a major role in case resolution. Given how IR and case-
based reasoning works, it would have been impossible to map a case about ROM onto
cases concerning translation. First, problems do not directly fit either the rules of law or
the cases already decided. A great proportion of the legal problems which may arise in
the decades to come do not map onto any legal category, and there is no precedent to
apply. Here are some problems that do not fit into any category of law:

Computer and communication

computer virus
crime related to the internet (police)

Medical science
cloning
cryopreservation
embryo transfer
embryo-culture

Secondly, the nature of the legal case refutes the idea that the search for a precedent is
equivalent of search for a similar case, which is an exact match to a new case. A case
does not lend itself easily to comparative analysis. The combination of actions in one
case does not fit the combination of actions in another case. The complexity of problems
impedes an information system from detecting an exact match. Complex problems
involve:

a. many actions
b. many jurisdictions
c. the problem's existence outside the law
d. no precedent
e. power of the parties involved
f. many strategies
h. many recourse
i. many persons
j. witness proof
k. scientific proof (DNA).

These two factors militate against the idea that precedent can stand as a perfect match
with a new case. As a consequence, legal metaphors proliferate in the resolution of
cases. By creatively searching for a precedent, legal experts are often actively trying to
find solutions to problems that no one else has contemplated, connecting the present to
the past, the unknown to the known by the extension and association of ideas.

Framework for creative Analogy

Despite the importance of analogy in law, there is a tendency to assimilate case
reasoning to analogy, an inclination to reduce analogy to the computation of similarity
and a disposition to underestimate the difficulty involved in the computation of similarity.
Reasoning by case includes reasoning by analogy, but cannot be confined to it and
similarity is part of analogy, but cannot be reduced to it. Reasoning by analogy is not
limited to the measurement of similarity but must be extended to a judgment of whether it
is suitable to argue using the analogical junction.

1. Case Reasoning

Case-based reasoning is a complex form of reasoning that includes analogical

reasoning, and must not be confounded with it. We can represent case resolution in a
structured tree where one case could be associated with many legal categories by
quality induction. Each branch represents a bond with a general category and particular
case. The evaluation of one branch in relation to the other is accomplished by
elimination. In other words, resolution of a problem does not occur in perfect harmony
since each particular problem could be related to many rules. The linkage of the case to
the rule is made by quality induction, but the choice of one rule over another implies
other reasoning Figure1.

Once the case is attached to a general category by quality induction, it is possible to limit
the movement that occurs between the particular case and the general category of law,
according to the continental law interpretative method. In codified law, it is sufficient to
establish a single relation between the legal category and the new case by quality
induction. However, it is also conceivable to complete this movement by a movement
that goes from general to particular by deduction. In the Common Law method, the
reasoning is analogical, since it is composed of quality induction and a deduction. From
the conjunction of these two movements, results an analogical expression that unites
two particulars. Accordingly, a junction is established between the category, the new
case and the decided cases. Therefore, in a narrow sense, analogy characterize only the
Common law. Nevertheless, in a larger sense, continental law relies on the interpretation
by quality induction as an essential component of reasoning by analogy.

It is self-evident that this model unifies both methods of resolution of legal problems,
disproving the distance between the Common Law and the codified law. In the Common
Law, the connection of one case to the other is performed twice, while in continental law,
the relation between the case and the rule of law is direct. The junction between the
case and the category defining the rule is done by analogy. The rule of Common law has
as its source, decisions, while the rule could be found in the statute. The more the rule is
abstract, and the less the adequacy of the category to the rule is simple; the less the rule
is abstract and the more the adequation of the case to the rule becomes possible.

The relation between cases realized by interpreting the rule of law favours the production
of a series of metaphors that compete in an argumentative system. For example, a legal
expert who wants to protect grammar rules used in a system of automatic translation
could realize the following analogy:

Grammar is a program
A program is protected
-------------------------
Grammar is protected

Conversely, the adversary will establish an analogy that rejects the protection of
copyright. The following analogy denies copyright:

Grammar is a principle
A principle is not protected
----------------------------------
grammar is not protected

The major achieved by analogy (induction and deduction) facilitates argumentation at a

higher level of pleading. The legal expert defending a case does not limit himself to the
production of analogies, but also uses argumentative techniques that increase the
chances of having the judge endorse the corresponding vision of the world. Not every
argument had the same power of persuasion; on this view, legal experts have to select
the argument that best suits the circumstances. In addition, it is by the sequence of
arguments that the legal expert discusses ideas in order to win the support of an
audience by persuasion.

We should not forget, however, that in the best of conditions, analogy presents
arguments that are merely plausible, but are not certain. Each metaphor remains a weak
relation that can be broken since it favors one position over the other. The judge can
analyze each metaphor and reach a decision. He can consider the validity of an analogy
or a metaphor in placing emphasis on points of dissemblance. Also, the judge could
evaluate two objects as similar while adopting two different criteria to assemble them.
Two objects x and y could be similar regarding the aspect W or Z, or dissimilar regarding
the aspect V or T. This reflection could be schematized in the following manner:

s(x,y) on the point W

s(x,y) on the point Z
d(x,y) on the point V
d(x,y) on the point T

The metaphor based on the aspect W conceals one part of reality which is the aspect Z
(resemblance) and the aspects V and T (dissemblance). Therefore, it becomes easy to
find the arguments that enforce one perspective over the other. It is also easy to
emphasize on dissimilarities allowing one to reject the analogical expression and by
consequence the ideas that it carries. On the other hand, instead of contradicting the
existing analogy between (x,y), that relies on Z or V, we look to an object (o) that
resembles (x) on a different aspect (Z) and a consequence B. The argumentation, with
three objects, is presented itself in this form:

s(x,y) on the point Z with a consequence A

s(x,y) on the point V
d(x,y) on the point T
s(x,o) on the point Z with a consequence B
s(y,z) on the point R

Reasoning by case cannot be limited to the creation of analogy or metaphor, but must
include discussion of the competing analogies and the reaching a decision. Generally,
two cases can be similar without necessarily leading to the same conclusion. In this
case, similarity is not questioned, since the judge presents the circumstances of the case
and determines the equity questions to demonstrate that the application of the same
rationale to two cases would lead to absurdity. Therefore, the legal decision stands on
the distinctions that the judge draws between analogies in the hope of reaching a fair
decision (Twining, William & Miers, David. 1991).

The resolution of a case by the establishment of a connection between cases has not
only the goal of bringing cases together in the guise to transfer the legal rule, but also
nuancing it (Fr‚mont, Jacques. 1993). This manner of considering the rules of law as
evolving and not fixed in advance to resolve all cases is illustrated by Levi, who says:

If this were the doctrine, it would be disturbing to

find that the rules change from case to case and
are remade with each case. Yet this change in the
rules is the indispensable dynamic quality of law.
It occurs because the scope of a rule of law, and
therefore its meaning, depends upon
determination of what facts will be considered
similar to those present when the rule was first
announced. The finding of similarity and
difference is the key step in legal process (Levi,
Edward. 1948, p.2).

In fact, every time a new case arises, comprehension of the case enriches the
comprehension of the rule, due to the comparison between a particular case and a
general rule. Therefore, reasoning by analogy does not only promote the resolution of
problems, but permits the rule to evolve and encourages discussions at the level of the
legislation. On this view, the new realities weigh on the legal categories, favouring the
linking of cases that lead afterward to the modification of the rule of law.

2. Analogy

If the reasoning based on the case is an exploration applied to a structured tree and
followed by judicial analysis, the interpretation of the rule is equivalent to an analysis on
only one branch. In the processs of generating an analogical expression (a is b), it is
important that the term (a) be tied to an abstraction. This bond is made if the similarity
conditions are met, and if it is pertinent to connect (a) to the abstraction. The link to the
abstraction allows the deduction of the term (b). A useful and valid analogy relies on a
good induction and deduction Figure2. To accomplish a valid analogy we need:

2.1. Knowledge semantics

The knowledge of copyright semantic categories allows the production of the analogies
and counter-analogies that are necessary to argue according to divergent goals. This
knowledge reflects not only the position of the persons who want to protect their works
but also of persons who want to exclude the work from the protection of copyright. In
fact, from the same network of knowledge we can produce an analogy and a counter-
analogy that express a contrary ideas; everything depends on the goal of the person
arguing. Furthermore, this knowledge is the cornerstone for decision making and
justification.

2.2. Valid induction

Similarity plays a role in induction, but this role, even though important, may be partial. It
allows one to bring together foreign realities to create new similarities out of existing
similarities. Mill lays the foundation of induction with these words:

We compare phenomena with each other to get

the conception, and we then compare those and
other phenomena with the conception. We get the
conception of an animal (for instance) by
comparing different animals, and when afterwards
see a creature resembling an animal, we compare
it with our general conception of an animal; and if
it agrees with that general conception, we include
it in the class. The conception becomes the type
of comparison (Mill, John Stuart. 1856).

Bacon, in his forcible manner, designated as one

of the principal obstacles to good induction,
general conceptions wrongly formed, "notiones
temer ... rebus abstractas:" to which Dr. Whewell
adds, that not only does bad abstraction make
bad induction, but that in order to perform
induction well, we must have abstracted well; our
general conceptions must be "clear" and
"appropriate" to the matter in hand (Mill, John
Stuart, 1856).

In order to prevent induction from leading to aberrations, the measure of similarity is

applied to profound knowledge, that which is guaranteed by the semantic component.
Furthermore, similarity is constrained by inferential and pragmatic knowledge.

. Pragmatic knowledge

The goal of the litigant, the aim of the law and the principles of interpretation are the
conditions that impede an invalid induction that can bring the fundamental rule of law into
disrupt. To ensure that the search for similarity does not hinder the process of linking the
cases, pragmatic conditions should constrain the evaluation of similarity. The teleological
conditions emerge from what the judge considers to be the goal of the law. The
conditions of argumentation are the immediate goal of the litigant. They permit him to
argue in favor of one position or another in order to direct the computation of similarity.
The dissimulation of certain aspects of a case over other aspects prioritizes one point
over the other. In fact, each link favors one aspect of the object as the most important. A
defender of copyright stresses the aspect of the object that encourage its protection, but
his opponent will stress the aspect that denies the protection. Finally, the standards of
conformity to the rules of precedent can also constitute an important consideration in
associating a case to a legal category. Researchers in artificial intelligence consider the
importance of teleological arguments to discover the precedent. In this approach, they
confirm the pretentions of law philosophers who claims that the reasoning according to
the rule of precedent follows the legal principles (Donald, Berman & Carole D.
Hafner.1993, p.50-65).

.Inferential knowledge

Many elements are involved in the computation of similarity. The most important are:

1. The presence of the attributes

2. The absence of the attributes
3. The importance of attributes, one toward the
other
4. The number of attributes in common
5. The agreement between the attributes
6. The disagreement between the attributes
7. The points of dissemblance in common

The conditions of similarity involved in the induction decision lead to the creation of a
bond between the case and the category according to the following model:

If a case (a) possesses the network of qualities

xxx
If the abstraction A possesses the network of
qualities xxx
-----------------------------------------------------------
The case (a) is an instance an of the abstraction A

If a case to be considered as an instance of a legal abstraction, it should share the

semantic conditions that qualify both. Nevertheless, the computation of similarity without
boundaries leads to a dangerous situation; this is why induction should be refined. The
obtention of a greater resemblance does not happen in a chaotic manner, since the
possibility of establishing a good induction does not necessarily arise from the existence
of whatever similarity. From this perspective, the necessary knowledge to correct the
weakness in the search for similarity remains crucial. To create an analogy that consists
of uniting two cases, the inductive reasoning should be followed by a deduction.

2.3. Deduction

The induction achieved in the past and stored within a legal category can be retrieved by
deduction. Each legal category simultaneously accommodates old cases and as well as
new ones. It is by integrating induction to deduction that the generation of an analogical
expression is made possible. Induction is realized as follows:

If a case (a) has the network of qualities xxx

If an abstraction A has the network of qualities xxx
-----------------------------------------------
 The case (a) is an instance of the abstraction A

If the case (b) has the network of qualities xxx

If the abstraction A has a network of qualities xxx
----------------------------------------------
The case (b) is an instance of the abstraction A

If the case (c) has the network of qualities xxx

If the abstraction A has the network of qualities
xxx
----------------------------------------------
The case (c) is an instance of the abstraction A

By deduction, we succeed in finding the metaphoric equivalences. The process of

metaphor generation could be schematized as follows:

The cases (a), (b) and (c) are instances of A

-------------------------------------------------
Therefore, the cases (a), (b) and (c) are similar

The cases (a), (b) and (c) forge a metaphorical or an analogical association. By
providing the possibility of relating a new object to a predicate in the copyright paradigm,
we create analogies and metaphors, since a set of cases may be affiliated with single
predicate. These cases could be homogeneous or heterogeneous, but must share
abstract qualities.

The integration of induction to deduction conforms to legal theory by eliminating the

direct comparison between two cases (particular to particular). To define the legal status
of the ROM, the computation of a metaphor on which the solution is based, is achieved
in two movements. First, the ROM (particular) is related to translate (general) since the
ROM contains the translation of a program written in higher order language to binary
language. Furthermore, from the general category "translate" we retrieve text written in
Morse code by deduction. The ROM (particular) and the Morse text (particular) are
analogous since they share the same abstraction. To compute a relation between an
object "totally unknown" to the law and the other "known", it is necessary that "what is
totally unknown" become "known" under certain aspects. The computation of similarity
between the ROM and the text translated in Morse does not go from the totally unknown
to the known, but from the less known to the more known. For example, the status of the
ROM completely unknown to the law should be known under the scientific aspect.
Therefore, from what we know we compute what we do not know Figure3.

conclusion
The resolution of legal cases progresses by association, affinity and juxtaposition of two
divergent fields in an integrative approach. To resolve a case, a legal expert cannot limit
himself to the perception of isolated facts but he must find affinities between fields which
express more cohesion in the law. First, a model of creative analogy Takes into account
the compositional nature of legal specialist who moves from the less complex to the
more complex: from analogy to deduction, from deduction to argumentation, and from
argumentation to decision making. Secondly, analogical reasoning is not considered to
be a process of reasoning that can be restricted to the computation of similarity, but
instead is considered to be a complex method of reasoning that causes legal principles
and cognitive rules to intervene. There is a difference between analogy based on
similarity measurement and analogy as reasoning, where similarity forms only part of this
reasoning.

To create a model that respects the nature of legal reasoning, a relation of structural
resemblance should be established between the model and the process of problem
resolution. It is uniquely by the conjunction of induction and deduction that the
construction of an analogical junction is accomplished. And it is equally by constraint on
induction that a distinction is made between a good induction and an aberration. The
constraint consists in furnishing the search for similarity with abstract knowledge, to
guide the inference and further to constrain by teleological arguments. The more the
computation of similarity is constrained, the greater the chance of achieving a valid
induction. The less the computation of similarity is constrained, the less is our chance to
obtain a valid induction. Similarity plays a preponderant role in human reasoning. For
this reason, it is important to control the search for similarity so that bringing cases
together will be useful and valid. Therefore, to remedy the defect of vulgar similarity, we
must be guided by accurate knowledge. The perception of similarity does not happen by
chance, since there are many constraints on the intent, which serve to garantee the
validity of the induction, and it is by deduction that the reasoning by analogy is
completed.

This model of analogical reasoning could eventually serve as a base for the creation of
an automatic system of generation of metaphors in law, in conformity with the doctrine of
precedent. It is clearly possible to generate, via this model, not only metaphor of the form
"x is y", but also complex metaphors. The metaphor "x is y" follows from analogical
reasoning, while elaborate metaphors originate from analogical reasoning and linguistic
operations. Even though the model is designed to generate metaphors, it is also capable
of integrating linguistic knowledge. Nevertheless, for this kind of endeavor to succeed, it
is important not only to create formal model of analogical reasoning, but also an
algorithm that reflects the wealth of the formal system.

As the legal expert solves legal cases by finding the commonalities between ideas, the
researcher in cognitive law cannot proceed without mapping the terminology of separate
fields. It is only by an integrative approach, by resolving conflicts between divergent
terminology, that we can gain a full understanding of analogy and its role in resolving
legal problems. A synthesis of conflicting fields is required in order to improve the
knowledge approach to resolving problems and recalling texts.

References
Araj, Houda. L'étude de l'analogie par synthèse interdisciplinaire. Interpréter le droit: le
sens, l'interprète, la machine. Établissements Émile Bruylant, Bruxelles, 1997. pp. 169-
196.

Becker, Lawrence C. "Analogy in Legal Reasoning", Ethics, Vol. 83 p.250

Berman Donald, & Hafner Carole D. "Representing Teleological Structure in Case-

Based Legal Reasoning: The Missing Link. The Fourth International Conference on
Artificial Intelligence and Law. Proceedings of the Conference. Computer Law Institute.
Amsterdam: The Netherlands. June 1993, p.50-65

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale University
Press, 1921, p.97

Frémont, Jacques. "Phénoménologie et formalisation de l'évolution de la jurisprudence"

dans Les sciences du texte juridique, Le droit saisi par ordinateur. Sous la direction de
Claude Thomasset, René Côté et Danièle Bourcier. Montéal, Editions Yvons Blais, 1993,
p.281-289.

Levi, Edward. An Introduction to Legal Reasoning. Chicago: University Chicago, 1948,

p.2

Mill, John Stuart."Abstraction, or the formation of conceptions" in System of Logic,

Ratiocinative and Inductive. Vol.2, 1856, Fourth Edition, London: John W. Parker and
Son, p.191
Nimmer, Melville B. Nimmer on Copyright: a Treatise on the Law of Literary, Musical and
Artistic Property, and the Protection of Idea. New York: Mattew Bender, 1988, 13 (A).

Reed, Chris. Computer Law. London: Blackstone, 1990, p.80

Twining, William & Miers, David. "Interpreting Cases". How to do Things with Rules.
London: Weidenfeld and Nicolson, Third Edition, 1991, 280-320.

Van Rijsbergen, C.J. Information Retrieval, Boston: Butterworths, 2nd ed. 1979, p.26

Wenskay, Donald L. Intellectual Property Protection for Neural Networks. Neural

Networks, vol 3, 1990, p.235

Notes

(1) A parallel may be drawn between copyright, where we are witnessing a break in the
conceptual boundary, and all other fields of law. Hence, the field of copyright can stand
as a metaphor to illustrate legal reasoning.

(2) Concepts, analogies and metaphors are the outcome of reasoning by analogy.
Analogies relate homogeneous objects within the same paradigm. They can take the
following forms:

"x is y", or synonymy.

"x is as y", or comparison.

"x is to y as w is to z", or proportion.

Metaphors unite heterogeneous objects in the same paradigm (the case of copyright).
They can also connect heterogeneous objects in heterogeneous paradigms. Metaphors
can take the following forms:

"x is y", or metaphor

"x is as y", or metaphorical comparison

"x is to y as w is to z", or mathematical analogy.

Concepts are natural classifiers; they express unity in diversity. In the theory of law, the
concept of "open texture" reflects the analogical nature of concepts.

The same-domain analogies are verbalized as analogies and metaphors. The cross-
domain analogies or distant analogies are expressed as metaphors. In analogies, the
order of the terms make no difference. On the contrary, in metaphors, word order
conveys meaning. They introduce the unknown in terms of the known.

(3) They can also be established by creating free association that falls within the
copyright paradigm and serves to explain and argue the case.

(4) Natural language means that the search is enhanced by stemming and lexical
analysis. "Natural" in IR does not imply an understanding of the queries formulated in
English, nor does it answer to the information needs based on this understanding.
5There is a complex relation between analogy and similarity.

Similarity does not necessarily lead to analogy. However, analogy is necessarily based
on similarity. Analogy means:

1. Analogy = similarity

2. Analogy = quality induction

3. Analogy = quality induction + constraints

4. Analogy = quality induction + deduction

5. Analogy = induction + constraints + deduction

6. Analogy = Induction + constraints + deduction + social

7. Analogy = Reasoning by example

Similarity is complex; we may speak of a subjective, connotative, abstract, total,

superficial, partial, evident, lexical and causal similarity.