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.”