Georgia Claims Its Annotated Laws Are Covered By Copyright, Threatens Carl Malamud For Publishing The Law

from the law-must-be-secret dept

You may recall a few years back that the state of Oregon claimed that its laws were covered by copyright and threatened to sue people who posted them online. Yes. Its laws. Other states have done the same at times, and each time they get mocked mercilessly for the plain ridiculousness of trying to use copyright law to stop people from publishing the laws of the state. Now, technically, these states are on reasonably firm legal ground, even if they’re on completely illogical common sense ground. While US copyright law is clear that works of the federal government are not covered by copyright, that’s not the case for state or local governments. Of course, that doesn’t make it any saner to claim such a copyright. After all, this is the law we’re talking about. It seems crazy to think that any government should get upset about someone publishing the laws that everyone is supposed to obey. In fact, you’d think they’d encourage it.

But… some states just can’t help themselves. The latest state to demonstrate how stupid this is would be the state of Georgia, which is now threatening to sue Carl Malamud and Public.Resource.org for daring to publish Georgia’s annotated legal code. In a very weak attempt to distinguish this from copyrighting “the law” itself, the threat letter makes it clear that it’s not claiming a copyright on the law per se, but rather “the copyrightable aspects,” of “the Official Code of Georgia Annotated.” From this, it would seem that they mean the annotations, which explain the law, are somehow covered by copyright. And they’re not happy that someone, such as Carl Malamud, has the temerity to offer up this code so that those impacted by Georgia law might actually understand the laws they are bound to obey.

Therefore, we demand that you immediately: cease and desist your unlawful copying of the Official Code of Georgia Annotated; remove any and all files containing the Official Code of Georgia Annotated from the internet; destroy any and all files containing the Official Code of Georgia Annotated from the internet; and provide us with prompt written assurance within 10 days of receiving this letter that all such steps have been taken and that you will cease and desist from any further infringement of the copyrighted Official Code of Georgia Annotated.

If you do not comply with this cease and desist demand within this time period, the State of Georgia, through the Georgia Code Revision Commission, is entitled to use your failure to comply as evidence of willful infringement and seek monetary damages and equitable relief for your copyright infringement.

Given Malamud’s history, and the fact that he himself reached out to the Georgia Code Revision Commission to let them know he was publishing the annotated version, I would imagine that he does not intend to cease and desist, but will fight this in order to show that such things should be publishable.

But, really, why is the state of Georgia doing this in the first place? It’s not as if the state needed the “incentive” of copyright to publish an annotated version of the law. If anything, this seems like copyright misuse. But, even beyond that, it just seems counterproductive from a public policy standpoint to want to make your own laws harder to understand.

Update: And, as expected, Malamud has responded. The entire letter is worth reading, but a quick snippet:

It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.

This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court specifically extended that principle to state law, such as the Ofcial Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”



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Comments on “Georgia Claims Its Annotated Laws Are Covered By Copyright, Threatens Carl Malamud For Publishing The Law”

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42 Comments
That One Guy (profile) says:

I can think of ONE reason...

If the state was trying to get some more money, then making laws secret, and fining people heavily for breaking them would only work if the laws were secret, as if people knew the laws they wouldn’t break them.

Other than that, nope, can’t think of a single reason that laws should ever be hidden like they are trying here.

Anonymous Howard (profile) says:

Re: I can think of ONE reason...

I can think of a quasi valid reason I read at a somewhat similar case:

This way they can maintain the document, keep it up-to-date, and don’t have to worry that some outdated copy is out there, confusing people.

Ofc it’s flimsy, could be solved in a number of ways, and outright wrong to use copyright to do the job.

heptagonprime (profile) says:

Re: Duh! It's Georgia

It would be really great if you could point out what these laws are. You can see O.C.G.A here: http://www.lexisnexis.com/hottopics/gacode/

I don’t think Georgia has anymore stupid laws than any other state. In fact, due to higher oversight due to our less than spectacular past, we have cleaned a lot of it up and repudiated old laws. There are also harsher penalties for sex trafficking of minors and a ban on female circumcision.

DannyB (profile) says:

Re: Re:

It works like this.

If you violate a secret law, then you will be secretly arrested (maybe in the middle of the night) and tried in a secret court.

Your defense team cannot know what secret law you broke because it is secret. If we revealed the secret law, then terrorists, yes TERRORISTS would know what kinds of behavior we are looking for and it would aid the enemy.

GMacGuffin says:

On the other hand ...

My father and I split a Westlaw bill of over $500 per month for access to various codes, cases, and practice materials. Our money of course is not for the cases and statutes, which are freely available — it’s for the annotations.

The annotations are short blurbs under headings for various legal points that show how the statute was applied in various cases. The annotations require attorneys qualified in the field to dig through each reported case that cites the statute and summarize its application to fact. That requires tons of man-hours and particular knowledge and skill sets. Annotations are incredibly helpful and save enormous amounts of research time.

So I can see why Georgia would have an issue with those kind of annotations being published for free. But … then … I always assumed that the annotations were drafted by the company providing them (Westlaw, LexisNexis).

I downloaded one of the uploaded documents to see what’s up, and 1) the annotations are largely just quick “editor’s notes” regarding the statutes and legislative histories, not much, but probably enough for copyright protection; and 2) the hard copy book which was scanned was provided by LexisNexis, but Georgia still holds the copyright. Interesting.

Sum, Georgia looks legally justified, but is probably overreacting. The books are scanned in an unwieldy list, took forever to download, and these annotations are largely useless.

Betting LexisNexis was actually driving this bus.

GMacGuffin says:

Re: Re: On the other hand ...

So the annotations are the Cliff Notes version of the law. No wonder the legal system is in such disarray.

Hahaha … indeed. Good lawyers will at least look at the case itself to check for things like, you know, context, or to make sure the rest of the case doesn’t destroy your argument.

In motions, I try to use the cases cited by opposition and kick them back on them with what the cases were really saying/about.

Blaine says:

Re: On the other hand ...

I’m not sure they are legally justified. I think an argument can be made that by calling it the “official” code of Georgia, and then using references to it, they are thereby causing the annotated version to be an edict of government. This is especially true since they control the copyright. If they never said the annotated version was official, and all of their official legal references did not mention it, then maybe they’d have a stronger legal standing in my point of view. But it seems pretty contrary to a very plain rule by the US Copyright Office to call something the official code,and then reference it on your government websites, and then say that it is copyrighted.

saulgoode (profile) says:

While US copyright law is clear that works of the federal government are not covered by copyright, that’s not the case for state or local governments.

I should think that all laws enacted by such legislatures qualify as “works for hire” (i.e., a work prepared by an employee within the scope of his or her employment, USC 17 ?101) and thus copyright ownership belongs to the employers (i.e., the taxpayers).

Anonymous Coward says:

C'mon, Mike, look at the intent of copyright!

they’re on completely illogical common sense ground

No, no no – it makes perfect sense if you look at the intent of copyright, specifically to “promote the Progress of Science and useful Arts”

If these legislators couldn’t monetize the laws, what reason could they have to write them? Without the incentive afforded by copyright, there would be no law at all, and then wouldn’t we be in a kettle of fish?

Anonymous Coward says:

sorry if i am being silly but if people dont know the laws how are they supposed to know when they have broken one? even further, how are people to know what not to do because it would be breaking the law? taking it even further, when you do whatever it is that you intend, it may be legal until the person(s) telling you to stop/arresting you because the law could be changed/added as and when it suits. rather a silly position to be in, i think. the only true and fair way out of this would be to send every person their own copy of the State Law, adding as amendments Federal law. people could then read, inwardly digest and regurgitate as needed. problem solved!

Anonymous Coward says:

“After all, this is the law we’re talking about. It seems crazy to think that any government should get upset about someone publishing the laws that everyone is supposed to obey. In fact, you’d think they’d encourage it.”

Unless you are the NSA and you are relying on secret laws that everyone would be outraged by if they knew about them, then of course you would be upset by someone publishing the law.

DannyB (profile) says:

Re: Re: Re: Re:

I wonder what the value of patents could possibly be for a secretive organization like the NSA?

If some technique is not generally known, why would you want to make it known by filing a patent — even under an identity not associated with the NSA?

Patents are not going to stop bad guys from implementing the technique in the patent.

In particular, with cryptographic techniques, you might just rather keep silent about a new technique rather than patent it. More like ‘trade secret’ protection without the ‘trade’ part.

davnel (profile) says:

Interesting

If one goes to the Georgia State Official Website (georgia.gov), click on “Government”, and thence to “Learning about Georgia Law”, and click on ” Official Code of Georgia”, you are taken first to a terms of service notice page outlining the copyright implications of even LOOKING at the published Law. Saying OK to that page takes you to, no, not the official Georgia Code, but rather to a LexisNexis search page.

That plus the comment that the “Printed Volumes” are the ONLY official text, says to me that Georgia doesn’t actually own their own laws but, in fact, have sold them and all rights of access to LexisNexis. It’s LN, not Georgia, that are doing the objecting and demanding. Someone needs to look into this. It seems to me that it’s clearly illegal.

heptagonprime (profile) says:

Re: Interesting

LexisNexis is the official publisher. It does not claim ownership of the law and specifically states that the copyright remains with the State of Georgia.

The letters in the article make no mention of LexisNexis. They are essentially just the hosting company. He is also not hosting what Lexis Nexis has online. The site just has the code. He is in fact hosting a scanned copy of the annotated code. If you look at the scanned code that he actually hosts, it has a copyright for the State of Georgia on it.

John William Nelson (profile) says:

Interesting . . . But does Georgia even own the copyright?

Here’s the thing: I can sympathize with a copyright in the annotated portions. I’ve done work editing annotated portions of code before. There is quite a bit of work, creativity, and expression that goes into it.

However, the State of Georgia didn’t do that work. If the State had, then to hell with not giving it free to its taxpaying citizens.

In this situation, LexisNexis did that work. There is a competing annotated code by Michie’s which many lawyers will know of as well.

In fact, if you do a Library of Congress copyright search, then it is Matthew Bender & Co (owned by LexisNexis) who owns the OCGA copyrights, if any.

So then you have a government entity making false copyright ownership claims. This is like when Righthaven claimed it had a copyright when it didn’t actually own said copyright.

LexisNexis would be the proper party. And that’s assuming the level of work done on creating the annotated code is sufficient to warrant copyright protection, or if it is just a reorganization of existing facts. And then there is fair use.

So myopic by Georgia.

Arequipa says:

Re: Interesting . . . But does Georgia even own the copyright?

A few points.

1) LexisNexis owns The Michie Company.
2) The annotated laws/code refers not only to the set of amendment notes, etc that are grouped at the end of each section of a code but also to the production involved in updating changes to the laws, incorporating new law/enactments or effecting repeals in the code – etc.
3) There exists a contract between state and publisher- I do not know if it is public or not but there must be some way to access a part or all of the contract. LN or Westlaw are providers who sell a service/product to the state- some might say that have been extended a concession in exchange for the production of the code…at any rate just the contract is high margin relative to cost of production- hell until a few years ago LN was running its online law product on architecture built in the 80s- yup the phooking 80s. Make you feel better about those 500 clams a month?

heptagonprime (profile) says:

Re: Re: Interesting . . . But does Georgia even own the copyright?

Almost all state expenditures can be found here:
http://open.ga.gov/index.html

There are other contract sites but I cannot find them just yet.

I think the issue is being confused though. OCGA is not secret. The State just wants to be the one who is in control of the publication of the code.

ChrisH (profile) says:

Now, technically, these states are on reasonably firm legal ground, even if they’re on completely illogical common sense ground. While US copyright law is clear that works of the federal government are not covered by copyright, that’s not the case for state or local governments.
Even if though they’re not excepted from copyright, I wonder how this would stand up to the question of copyrightability. Statements of facts are not copyrightable, so I’m wondering if that would be the most logical defense in this case.

Androgynous Cowherd says:

The authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.

Someone needs to get the same Supreme Court justices that penned the above to take a look at the recent behavior of the FISA court…

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