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.