State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws

from the that-seems...-unwise dept

Update: We’ve written a new post about this case, which notes an important error we made in the analysis below. We claimed that the annotations were relied upon by the courts, which turns out not to be true. We apologize for the error, and we should have done more research initially. It is true, however, that multiple parts of the Georgia government do point to the annotated code as “the law” of the state and reference parts of that same annotated code. In our updated post, we do a more thorough analysis of the legal arguments — yet we still regret and apologize for the initial error in this post.

Two years ago, we wrote about the state of Georgia ridiculously threatening to sue Carl Malamud and his site Public.Resource.org for copyright infringement… for publishing an official annotated copy of the state’s laws. This followed on a similar threat from the state of Oregon, which wisely backed down. Malamud has spent the last few years of his life doing wonderful and important work trying to make sure that the laws that we live by are actually available to the public. The specific issue here is that while the basic Georgia legal code is available to the public, the state charges a lot of money for the “Official Code of Georgia Annotated.” The distinction here is fairly important — but it’s worth noting that the courts will regularly rely on the annotations in the official code, which more or less makes them a part of the law itself the state points directly to the annotated version as the official laws of the state. Furthermore, the annotations are very important in understanding and applying the relevant interpretations and case law (case law is a part of the law, after all). And then, the question is whether or not the law itself should be subject to copyright restrictions. Malamud has long argued no, while the state has obviously argued yes, probably blinded by the revenue from selling its official copy of the annotated code. Update: In the original post, I overstated the claim that the courts would directly rely on the annotations. While the annotations are often used to better understand the relevant case law, it does not appear that the courts directly refer to the annotations themselves.

It took two years, but the state has now done the absolutely ridiculous thing of suing Malamud. It is about as ridiculous as you would expect again focusing on the highly questionable claim that the Official Code of Georgia Annotated is covered by federal copyright law — and that not only was Malamud (*gasp*) distributing it, but also… creating derivative works! Oh no! And, he’s such an evil person that he was encouraging others to do so as well!

This action for injunctive relief arises from Defendant?s systematic, widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia Annotated (?O.C.G.A.?) through the distribution of thumb drives containing copies of the O.C.G.A. and the posting of the O.C.G.A. on various websites. Defendant has facilitated, enabled, encouraged and induced others to view, download, print, copy, and distribute the O.C.G.A copyrighted annotations without limitation, authorization, or appropriate compensation. On information and belief, Defendant has also created unauthorized derivative works containing the O.C.G.A. annotations by re-keying the O.C.G.A. in order to make it possible for members of the public to copy and manipulate the O.C.G.A., thereby also encouraging the creation of further unauthorized derivative works.

Believe it or not, the State of Georgia is actually claiming that it needs the copyright protections here to incentivize it to create these annotated copies of the law. Apparently, without copyright, Georgia’s law would remain sadly unannotated.

Each of these annotations is an original and creative work of authorship that is protected by copyrights owned by the State of Georgia. Without providing the publisher with the ability to recoup its costs for the development of these copyrighted annotations, the State of Georgia will be required to either stop publishing the annotations altogether or pay for development of the annotations using state tax dollars. Unless Defendant?s infringing activities are enjoined, Plaintiff and citizens of the State of Georgia, will face losing valuable analysis and guidance regarding their state laws.

This is ridiculous. In what world does making the law require copyright protection?

The State is particularly upset that Malamud ran some crowdfunding and donation campaigns seeking to raise money to keep his operations running, saying that he raised this money “to assist the Defendant in infringing the State of Georgia’s copyrights.” The State also complains that he uploaded the code to the Internet Archive under a CC 0 public domain dedication, saying (incorrectly) that this implies that he claimed that he was the owner of the annotations. That’s not true at all. He’s claiming that everyone owns them, because they’re the law.

Later, the lawsuit makes Malamud out to be some sort of horrible person on a “crusade” to make the laws free, and to “control the accessibility of U.S. government documents.”

On information and belief, Carl Malamud has engaged in an 18 yearlong crusade to control the accessibility of U.S. government documents by becoming the United States? Public Printer ? an individual nominated by the U.S. President and who is in control of the U.S. Government Printing Office. Carl Malamud has not been so nominated.

It takes a special kind of ridiculousness to argue that someone seeking to make the laws of the land more accessible to the public is somehow looking to “control the accessibility” of those laws. But, welcome to the State of Georgia, apparently home to just that kind of special ridiculousness.

The complaint further submits as an exhibit this Columbia Journalism Review article about Malamud from 2009 in order to support Georgia’s ridiculous claim that Malamud sees what he’s doing as a form of “terrorism.” The lawsuit says the following:

Carl Malamud, has indicated that this type of strategy has been a successful form of ?terrorism? that he has employed in the past to force government entities to publish documents on Malamud?s terms

Of course, all that’s likely to really do is further educate the court about what Malamud is really looking to do: make the laws of the land more publicly accessible.

Either way, this seems like a ridiculous move for Georgia. Going after Carl Malamud for copyright infringement for helping to make the public more aware of the law in the state of Georgia just seems ridiculous. And for all of the state’s repeated claims in the lawsuit that it’s doing this to protect taxpayers, one has to ask why it’s spending taxpayer revenue on filing such a ridiculous lawsuit?

Back when the state of Georgia first threatened Malamud two years ago, he responded as such:

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 speci?cally 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.?

This still applies, and it seems that the State of Georgia might want to re-evaluate its choice of targets here.

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Comments on “State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws”

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82 Comments
Anonymous Coward says:

Foolish government. They can’t even enforce their copyrights correctly. The correct course of action is to send notices to google to take down any and all references to Georgia state law, including several sites that clearly have nothing to do with laws (but do include the word Georgia), and 127.0.0.1, and then broadcast how the pirates are killing their business, and without this copyright they won’t be incentive to create new laws.

Based on the general mood towards government, the threat that they won’t create new laws if this keeps up will probably send approval ratings through the roof.

John William Nelson (profile) says:

Standing is an issue

Not sure what law or resolution has granted the Code Revision Commission authority to represent the General Assembly of Georgia or the State of Georgia. I don’t think they have legal standing.

Also, not sure how they hold the copyright to this, and while I haven’t pulled the full filing, have they shown that the alleged copyrighted works were registered prior to filing?

This case is a crock. This law firm and their lawyers should be ashamed. Unfortunately, I run into too many shameless lawyers in my litigation work.

Martin Marshall says:

Re: Standing is an issue

The annotations are prepared by Lexis Nexis. I had always assumed that Lexis Nexis owned the copyright to the annotations, as they are editorial material created by Lexis Nexis employees.

I’ve always thought of the annotations as a third party’s interpretation and explanation of the law. No one cites to the annotations. You cite to the cases that the annotations describe.

I hope Malamud wins, because it will be a nice development if the annotations are in the public domain. But the distinction between law and editorial material may be a problem.

John William Nelson (profile) says:

Re: Re: Re: Ignorance is a pre-requisite for being in government in GA

Here is an article on whether and when ignorance of the law is an excuse, and is not an excuse:
http://www.heritage.org/research/reports/2013/06/ignorance-of-the-law-is-no-excuse-but-it-is-reality

It looks at crimes that are malum in se versus those that are malum prohibitum. Good quick read as far as these things go.

Landamen says:

Re: Re: Re: Ignorance is a pre-requisite for being in government in GA

I don’t know about that…

Puts on tinfoil hat

Back in 2012, the SCOTUS decided in a 5-4 vote in NFIB vs. Sebelius (Affordable Care Act), that confirmed that our government has the power to compel individual citizens to purchase federal (state) mandated policies through the use of Federal (state) tax powers. Ergo, you cannot plead ignorance due to state licensing because you will be compelled to purchase said law(s) that you broke or be “taxed” in order to compensate the state for your lack of understanding and for having to provide you with a public defender. Further more, you will have to purchase each new law(s) in a piece by piece fashion, on a limited 90 day license to ensure that only lawful parties can use them. In short, the only way to plead ignorance to the law will to be by becoming a tax evader.

How else can they afford to make new laws?

takes off tinfoil hat

Anonymous Coward says:

Re: Re:

Don’t think it’s ignorance. It’s malice. The US South has a deep seated resentment to Federal interference going back before the Civil War but especially over Reconstruction. That’s never changed. The State of Georgia routinely tries to get away with willfully ignoring any inconvenient Federal laws and rulings while trying to trumpet the (oft neglected) 10th Amendment.

TMLutas (profile) says:

Re: Re: Re:

In this particular case, the state of Georgia is acting the thief and crying to federal court to enforce its theft so I’m pretty sure nobody’s whistling dixie over this one.

What Georgia is violating, among other things, is the entire idea of limited time copyright as the authorizinge statute 28-9-3 gives the commission the right to limit publication or not without time limit, something that hasn’t been true in common law countries since the 1710 Queen Anne statute that eliminated permanent IP.

Sheogorath (profile) says:

On information and belief, the State of Georgia has engaged in an 18 year long crusade to control the accessibility of U.S. government documents by becoming the United States’ Public Domain Withholder – a state government nominated by the U.S. President and who is in control of the U.S. Government Information Office. The State of Georgia has not been so nominated.

FTFY, Georgia. YW. 😉

DannyB (profile) says:

Making the Law Public will Aid Terrorists

Allowing any common person to have access to the laws without a license would be aiding the enemy.

The enemy would use knowledge of the law in order to avoid doing the very things that we would prosecute our enemies for doing. (example: if you knew that jaywalking was illegal, then you would find some other way to accomplish your evil plan of crossing the street without technically violating the jaywalking law.) This makes us all less safe from those who would work around our laws in order to accomplish their goals. (crossing the street)

We must protect ourselves from enemies who use knowledge of the law to avoid prosecution. (eg, jaywalkers using the crosswalk to avoid prosecution being an example of an enemy terrorist.)

In addition to secret laws, we need:
* Secret interpretations of laws
* Secret courts
* Secret court orders
* Secret arrests (in the middle of the night)
* Secret evidence (that the defense cannot access)
* Secret trials
* Secret convictions
* Secret incarceration
* Widespread police brutality, sometimes outright torture, condoned, maybe even encouraged by some departments, but defended by all officers
* Militarization of police
* Government torture programs

This list is not all inclusive. If you have questions about what should be on the list, simply look at what we were fighting in the previous century.

Think of the terrorists!

Schmorgluck (profile) says:

Re: Making the Law Public will Aid Terrorists

Reminds me that, some years ago, then French president Nicolas Sarkozy asked some senior magistrates about the possibility of abstaining from publishing the decrees relative to a set of security laws in the “Journal officiel de la République française”, France’s government gazette. Even the (few) magistrates who were politically sympathetic to him found the idea absurdly preposterous. No statute in France is binding in any way if it wasn’t published in the “JO”, as it is commonly called.

This guy has no respect for democratic institution. I hope he doesn’t manage to come back to power.

kenichi tanaka (profile) says:

While doing some web searching on this matter, I discovered a Harvard Law write-up from 2008 on this very issue, where the state of Oregon sued some websites over this very same thing:

Although Section 105 of the Copyright Act places the works of federal government employees (so, federal statutes, federal judicial opinions, and the like) in the public domain, Section 105 doesn’t apply to state laws. Does that mean state laws are copyrightable? Although the statute is silent, the courts have always said: no, they aren’t. In Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886), the court rested this conclusion on the unfairness of limiting public’s access to the rules that governed its conduct:

Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. … It can hardly be contended that it would be within the constitutional power of the legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them; while it has the power to pass reasonable and wholesome laws regulating the mode of promulgating them, so as to give accuracy and authority to them.

Source: https://blogs.law.harvard.edu/infolaw/2008/04/16/can-states-copyright-their-statutes/

jcuffe007 (profile) says:

State Of Georgia Sues Carl Malamud

I work in local government in CAlifornia, and have had the opportunity to meet Mr. Malamud, and listen to his presentation on his mission. I fully support his efforts to make the law more transparent, and frequently use the public.resource.org website, I am a firm believer that it is the governments job to educate the public on the laws, to provide access to the laws, and to help fix the laws that are out of date, or have no real application. I know many in my field that have the same opinion, but we are still in the minority. But with people like Mr. Malamud out there, there is hope.

Dan (profile) says:

Annotations

The issue here is not the code itself, it’s the annotations. An annotated code presents a code section (the law), followed by annotations, then the next section, then its annotations, and so forth.

As an example, a section of the Georgia code makes it illegal to drive while under the influence of alcohol or drugs. In the annotated version, that section will be followed by notes from cases discussing things like how it applies to driving in a parking lot, challenges to the use of the breathalyzer, admissibility of field sobriety tests, etc. These notes will each be a couple of sentences at most, and are (at least usually) prepared by privately-employed editors.

Annotations are not the law. They are not part of the law. They are, in short, brief summaries of how the law has been applied or interpreted by courts, agencies, law reviews, and other sources. In my years of practice, I’ve never seen a court cite an annotation as authority for any proposition, and there’s no reason that a court would–after all, each annotation cites its authority.

In the olden days (i.e., before the days of electronic legal research databases), preparing annotations was extremely labor-intensive, and the labor in question was generally provided by attorneys and librarians. Not only was there the actual preparation of the notes, but the extensive cross-referencing was all done by hand. Now the cross-referencing is mostly automated, but you still have attorneys reading the cases and writing the notes.

If GA were suing over Malamud putting the code online, the case would be well into frivolous territory. But they aren’t–they’re suing over the annotations, which are a commercial product, and aren’t the law. They may or may not win, but contrary to the headline, this isn’t about Malamud putting the law online.

Anonymous Coward says:

Re: Annotations

These notes will each be a couple of sentences at most, and are (at least usually) prepared by privately-employed editors.

No, these are created by publicly employed editors, who are employed by the state of Georgia to create an official Georgia annotated code. Until the state of Georgia becomes a commercial entity, there is no commercial product involved here.

Dan (profile) says:

Re: Re: Annotations

Unless LexisNexis has recently been bought by the State of Georgia, this is incorrect. The editors are employed, in this case, by LexisNexis, who has a contract with Georgia to prepare the OCGA. One of the terms of the contract is apparently that the copyright on the OCGA belongs to the state of Georgia.

It’s unclear how significant this distinction is at the state level. At the federal level, the original works of government employees, prepared in the scope of their duties, are not copyrightable, period. However, works prepared under contract for the federal government can be copyrighted, and the government can own those copyrights. Thus, at the federal level, this distinction would be critical.

At the state level, though, the rules aren’t quite as clear. There isn’t a bright-line rule that works created by state government employees aren’t copyrightable, as there is at the federal level. So even if you were right that the editors were state employees, that would not mean that the annotations couldn’t be copyrighted.

There may be (though I doubt it) a state which hires editors, as state employees, to annotate its codes, but Georgia is not that state.

Dan (profile) says:

Re: Re: Re:2 Annotations

Being a smartass only works when you’re right. You aren’t right. A government employee (i.e., somebody who’s paid directly by the government) is not the same as an employee of a private corporation who has a contract with the government, even if that person spends all his time working on the government project (or even at a government facility). This distinction applies to employment law, tort law, copyright, and a host of other areas of the law.

But even if you were right that there’s no difference, since this is a state government and not the federal government, that still wouldn’t render the annotations public domain works.

Anonymous Coward says:

Re: Re: Re: Annotations

Unless LexisNexis has recently been bought by the State of Georgia, this is incorrect. The editors are employed, in this case, by LexisNexis, who has a contract with Georgia to prepare the OCGA. One of the terms of the contract is apparently that the copyright on the OCGA belongs to the state of Georgia.

Which would be the only thing giving Georgia standing. At the same time, it stops the annotations from being private property. They are a legal text paid prepared on behalf and paid for by the tax payers.

I don’t see how Georgia can argue that the tax payers are not to have access to them. The only way this should have a chance of prevailing is if the copyright had remained with LexisNexis, and it would have been LexisNexis who had sued.

But if Georgia is of the opinion that the annotations are required to a degree for understanding the law that they have expended tax payers’ money to acquire the copyright on them, they will have a hard time convincing courts that they should be allowed to paywall them and have citizens pay again before accessing them.

If sanity prevails. This is the U.S. we are talking about, so that is not a given.

ECA (profile) says:

lONG AGO, NOT TO fAR AWAY..

Long ago, there are a country that demanded that the people Live by the Rules in a book, derived and read to them by a representative…
The books were expensive..and only those in the Church could read and interpret them..

Until the advent of the printing press, and making TONS of copies. And the Church having a FIT about it..

1. didnt know a Public LAW was Private..
2. Didnt know a Public servant had any rights to Privacy.
3. without a signature on the annotations, how do you know Whom to pay and how much.. And how do you keep records of what was read and recorded…

I love the concept of EDITING the law..

antidirt (profile) says:

Annotations are not law, Mike. But I love how in this context you feel comfortable saying there should be no copyright, while you’re too ashamed to just admit you feel that way generally. Of course, you have to intentionally lie about annotations being law to get there, but you feel safe in saying it despite the lie. Good for you! Maybe one day you’ll tell us how you really feel about it. Then again, you probably won’t. For whatever readon, you just can’t come clean.

Anonymous Coward says:

If the law itself isn't public domain,

then it isn’t the law. Cost differential between parties biases outcomes. Acknowledging this formally would mean the court preferred private interests over public ones, and we don’t have privately held courts of law in this country.

But this is only a small part of BAR bigotry.

California is the only state in the Union where the BAR exam is expected to be an objective standard. All others require students to attend schools saddled with expensive accreditation processes before they can even ATTEMPT the exam.

So for most of the country, practicing the law is largely a formalized social class system. Incidentally, the Federal government DOES recognize California’s BAR, though almost every state will not.

meta-monkey says:

I don't think Malamud is going about this right

First, I am a free software nutjob and think copyright is evil. But while it exists…pretty sure Malamud is going about this wrong.

As I said in a previous comment, you’re wrong with your link. You said, “the state points directly to the annotated version as the official laws of the state.” No it doesn’t. It points to the unannotated code, on a LexisNexis server, which states “This website is maintained by LexisNexis®, the publisher of the Official Code of Georgia Annotated, to provide free public access to the law.” You just saw the words “publisher of the Official Code of Georgia Annotated,” but that’s the manner in which LexisNexis is identifying itself, not the content to which Georgia linked. The content of the site, “the official code of Georgia” is unannotated.

Law is public domain. Court decisions are public domain. But they are not copyleft. I can absolutely create and copyright derivative works about things in the public domain. Slogging through decisions for each law and compiling relevant quotes and analysis for easy digestion is absolutely copyrightable. As other comments have said, LexisNexis is commissioned by the state to produce an annotated code, which it then uses for its judges and attorneys, and sells to other lawyers, probably making it revenue neutral.

So, you can argue that states should not be allowed to hold copyrights on anything. Maybe that’s the case. I don’t know. If so, what will happen is Georgia will stop commissioning LexisNexis to make annotations according to standards that we hope are in the best interests of Georgia citizens. LexisNexis will produce the annotations itself and sell copies to government and private attorneys and keep more of the profits itself.

Malamud thinks access to annotated laws is vital for a free society. I agree! So fine, his organization should dedicate itself to slogging through court decisions and annotating laws, and it should publish them. Create a “Wikipedia for laws” where anybody can annotate their state’s laws. Do to LexisNexis and Westlaw what Wikipedia did to Britannica.

When Linus and RMS thought software should be free, they didn’t go hack Microsoft and commercial Unix vendors and publish their software for free. They went and wrote and published their own damn free software.

Malamud, go write your own damn free annotations.

Jake Heller (profile) says:

Re: I don't think Malamud is going about this right

For what it’s worth, I started Casetext to make annotated copies of the law available. Our goal is to do to LexisNexis and Westlaw what Wikipedia did to Britannica. In fact, that exact language was in our original pitch to Y Combinator. Check us out!

There’s still a long road for us to travel. Building a free and annotatable version of Westlaw and LexisNexis is hard work. But we are definitely working on it. And if you want to help contribute, sign up and start annotating!

Reedman says:

Copyright of Law

There is a parallel/inverse effort concerning the building code. Most states/counties/cities require you to obey the national building codes. But, the codes are copyrighted publications of non-profit private entities. Some folks are trying to argue that ANYTHING that is the law of the land must be made available free of charge, and that posting the electrical code online is legal as long as it is the required law.

Mark Lyon (profile) says:

Section 1-1-1: The statutory portion of the codification of Georgia laws prepared by the Georgia Code Revision Commission and the Michie Company pursuant to a contract entered into on June 19, 1978, is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. The statutory portion of such codification shall be merged with annotations, captions, catchlines, history lines, editorial notes, cross-references, indices, title and chapter analyses, and other materials pursuant to the contract and shall be published by authority of the state pursuant to such contract and when so published shall be known and may be cited as the ‘Official Code of Georgia Annotated’.

Augusto Herrmann says:

proper usage of CC-Zero

There is another error on this post.

I think, as much as anyone else, that the actions of the State of Georgia suing Malamud are very reprehensible. However, they do have a valid argument about CC-Zero being an inappropriate license for the body of annotated law.

CC-Zero is an instrument for someone who owns the copyright on a work to release it into the public domain. If you have reason to believe in good faith that a work is already on the public domain and you just want to label it as so (i.e. you do not own a copyright on it, neither does anyone else), you should use the Public Domain Mark.

See the Creative Commons Zero FAQ at https://wiki.creativecommons.org/wiki/CC0_FAQ#What_is_the_difference_between_CC0_and_the_Public_Domain_Mark_.28.22PDM.22.29.3F

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