Carl Malamud's Response To Georgia's Lawsuit Over The Copyright Of Its Annotated Code

from the it-ain't-covered-by-copyright dept

We’ve written a couple of articles about the decision by the state of Georgia to sue Carl Malamud for posting its “Official Code of Georgia Annotated” online for people to read. As we noted in a later post, while the legal issues here are potentially complex, the basic moral issues are not: why would you ever want the “official” code of laws to be covered by copyright?

The legal argument in favor of saying the OCGA is covered by copyright is that it’s just the “annotations” (which discuss the caselaw related to the legal statutes), and it’s developed by a private third party (LexisNexis) which then assigns the copyright to the state. But the very fact that the state repeatedly refers to and points to the annotated copy as its “official” law, and the fact that such annotations help the public more clearly understand the law, makes the argument fairly weak. And now, Malamud has filed his answer and counterclaims to the lawsuit, basically saying: (1) this is not covered by copyright in the first place and if it is then (2) it’s fair use and if it’s not fair use then it’s (3) copyright misuse — and finally if all that (and a few other things) fail, that stopping Malamud from posting such things would be “inimical to the public interest.”

The response also takes at least some issue with the fact that the State of Georgia called Carl Malamud a “terrorist” for daring to publish a copy of its laws. Again, while the specific legal arguments here are interesting, I’m still at a loss as to why the state of Georgia thinks this is a wise use of taxpayer dollars. Even if it “wins,” it does not come out of this lawsuit looking good. Bullying the guy who’s helping to make your legal code more accessible doesn’t seem like a good plan for government.

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Comments on “Carl Malamud's Response To Georgia's Lawsuit Over The Copyright Of Its Annotated Code”

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Jeff Green (profile) says:

Re: Likely the State of Georgia thinks he's a terrorist...

Every person ever born on Earth is brown
Some lighter brown and some are almost black
I’ve studied every city, every town
And other colours’ score amounts to jack

I’ve never seen a white man, that’s a ghost,
And purely black means you’ve been mining coal.
So all that anyone can ever boast
Is that they have a slightly browner soul!

Anonymous Coward says:

But it is in the interest of the state.

after all, having the annotated code available to the public means that the potentially more people will know their rights and the law to the determent of police officers who in the performance of their jobs routinely violate both the law and the constitution. You don’t really want the sheeple to know the law better than the police do you? And due to the ‘good faith’ escape clause for police actions that are in violation of the law, it’s in the best interest of the police to be ignorant of the law. So by having the law and the annotations easily available to the public, it increases the likelihood of the police performing actions that decrease there credibility.

Dan (profile) says:

Re: Speaking of secret laws

Yes indeed. In fact, it’s common for courts at all levels, across the country, to cite a wide array of treatises on an equally-wide array of topics (Friedenthal, Wright, Kane, & Miller on Civil Practice & Procedure; Prosser on Torts; Epstein on Contracts, to name just a few). All of these treatises are very expensive (and very large, 20+ volumes is the norm), and all are protected by copyright.

None of these treatises is the law. They explain and analyze the law, and judges will frequently cite to their analysis and explanation. Sometimes a court will explicitly adopt a part of the treatise’s analysis, making that part the law, at least within his jurisdiction (and the court’s opinion is thus in the public domain).

There’s a good chance you could find at least some of them in your local law library (which is typically open to the public), but they’re unlikely to be in the public library system–they’re too expensive, and too specialized, for a public library to spend its money on them.

Anonymous Coward says:

Re: Speaking of secret laws

…This treatise costs about $4000 on Lexis/Nexis and it does not appear to be available in my local (Michigan) library system…

The issue is not very secret; it’s having to pay to know!

I have the same issues with various codes. When my localities’ laws and regulations reference an ANSI, IBC, or NFPA document I find those not available in the localities’ library but I can buy my own copies from various sources.

But $4000.00 is quite high! I could buy damn near the whole NFPA library for that, which includes so-called standards that nobody has codified.

JoeCool (profile) says:

Indicative of the problem

That a state will spend hundreds of thousands of dollars on what they see as the loss of revenue worth thousands of dollars just shows you why the state is in financial trouble in the first place. Politicians who think their job is to be “seen doing something” and lack any kind of fiscal intelligence is what makes more and more stories like this one.

Anonymous Coward says:

Everyone that uses this site would be considered a terrorist by the state for not blindly doing and believing what they are told to do.

Terrorist means now just as much as the term communist meant in the 60’s. pointless justification for useless security theatre designed to strip people of their rights and put absolute power into the hands of a few.

Anonymous Coward says:

How can one follow the law,

if knowing the law remains prohibited? If it isn’t public domain, it isn’t law. There are no secrets courts in this country, and there is no secret deliberation of the interpretation of the law. The secrecy part is the part that makes it unlawful, not the price.

Of course this would not be the first time that the state of Georgia was afraid that its own citizens are becoming more educated about the deliberation and execution of its laws.

As a side note, Tech Dirt may wish to make some inflammatory posts to it’s own site from around the country, and index the man in the middle attacks occurring with various ISP’s. Probably make a good article.

It’s funny how using one or two keywords results in a de-escalated SSL certificate. Funnier still that it is costing the tax payer $1100 a month per tin foil hat, to watch this tripe get posted. (Comcast Law Enforcement Handbook, page 19.)

Dan (profile) says:

Re: How can one follow the law,

…and I once again point out (since Mike seems determined to frame the issue incorrectly) that this case has nothing to do with access to the law. The law is in the public domain, and nobody involved in this case is suggesting anything to the contrary. It’s already available, for free, on the web, from multiple sources (including at least one provided by the state of GA).

The issue in this case is Malamud’s publication of the annotations, which are prepared and copyrighted by a private publisher (LexisNexis, in this case). It’s never been seriously challenged that annotations are copyrightable, but in this case, the state has a contract with LexisNexis, and LexisNexis thus publishes the “Official” code of GA annotated. Malamud makes an interesting and novel legal argument that its status as the official annotated code somehow renders those annotations non-copyrightable. It’s interesting, but I don’t believe it will ultimately be successful. Deeming this an “official” state publication does not make it the law, and states are allowed to copyright publications.

This is also not in any way fair use. Malamud isn’t doing anything transformative with the code, he’s merely copying it outright. He’s copying the entirety of a 40-volume commercial publication. And while the extent could certainly be disputed, it’s pretty obvious that having the entirety of the publication available for free online will affect the market for that publication.

Anonymous Coward says:

Re: Re: How can one follow the law,

Fair use doesn’t require transformation. In fact there have been (very rare) decisions where whole exact copies of a work have been declared fair use.

While the number of decisions is rare, the number of whole exact and LEGAL copies made under fair use is vast. For example, using a VCR or TiVo or similar device to record a TV show for later viewing is legally recognized fair use, with no transformation whatsoever.

MattK says:

Re: Re: How can one follow the law,


Deeming this an “official” state publication does not make it the law, and states are allowed to copyright publications.

True, but Georgia goes farther and passes a bill every year that says the statutes and numbering as found in that “official” state publication is reenacted (last one was HB 90, from 2015-2016 session, Section 54).

So not only is it the “official” version, but the statutes as found in the “official” state publication is in fact the actual law of Georgia (OCGA 28-9-5).

Tanner Andrews (profile) says:

Re: How can one follow the law,

There are no secrets courts in this country

There are secret courts in the US. We have both the FISA court, wherein the judges almost always rubber-stamp the government requests to spy on citizens. I believe there were three cases over the years where the secret court did not comply with the government request, I presume the judges had a headache.

Fortunately, by way of headache powder, there is the FISA appeals court. It, too, is secret. It convenes but rarely because the trial-level'' FISA court is so compliant, and of course when it does convene it necessarily rules for the only party before it.<br /><br />By the way,FISA” stands for Foreign Intelligence Surveillance Act. We call it that because the spying is done against US citizens and rarely involves any intelligence. The court was established in 1978 by act of Congress. It permits the government to regulate the governmeent; this works about as well as you would expect.

There are also various military tribunals which operate with varying degrees of secrecy. We are allowed to know of the existence of at least some of them, such as the one in Cuba, though of course the proceedings are veiled in secrecy and the defendants are not uniformly allowed to see the evidence offered against them. The reason for the secrecy in these cases is that the courts and their proceedings would be an embarrasment if well known.

Anonymous Coward says:

Georgia indictments

I strongly suspect Georgia criminal indictments cite to the Official Georgia Code Annotated (OGCA). While I have yet to find the text of an actual indictment in my casual searching, any time I find a reference to an actual law in news reports or press releases, it cites to the OGCA. Apparently there is literally nothing else to cite to.

Here’s an example of the State of Georgia citing the OGCA in a press release about a high profile indictment:

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