Supreme Court To Review Whether Or Not You Can Copyright State Laws

from the please-don't-fuck-this-up dept

Last fall we were happy to see the 11th Circuit rule that, obviously, a state’s official laws couldn’t be covered by copyright. As you may recall, the case involved the state of Georgia and Carl Malamud’s Public.Resource.Org. Malamud has spent years helping to make the law more readily available to the public — and has been on the receiving end of a bunch of lawsuits for his troubles. The case in Georgia had some slightly odd facts in that the state said that its laws were freely available, but it contracted out to a private company, LexisNexis, to produce an “annotated” version of the law. LexisNexis then got a copyright on the annotations, which it then assigned to the state. Then — and this is the important part — the state released the “Official Code of Georgia Annotated” (OCGA) as the only “official” version of the laws. When new laws were passed, they were specifically written to be included in the OCGA. While the lower court said that the annotations could be covered by copyright, and thus Malamud publishing a free online version was infringing, the 11th Circuit easily reversed. It didn’t even say something more narrow, like arguing that the republishing was fair use. It said you can’t copyright the law at all. Period. Full stop.

… the work was created through the procedural channels in which sovereign power ordinarily flows — it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The state of Georgia asked the Supreme Court to review and, perhaps surprisingly, Malamud also asked the Supreme Court to take the case, noting that while the 11th Circuit ruling was persuasive, it was not binding across the rest of the country, and it would certainly be nice for the Supreme Court to just rule, flat out, that you can’t copyright laws. Of course, the flip side of this is that if the Supreme Court ruled the other way, that would be really bad.

Well, we’re going to find out, as the Supreme Court has agreed to hear the case. The Supreme Court has a bit of history being, well, wacky when it comes to copyright cases, so this really could go any way. But what the court decides is going to be important. I fear a result where the court sides with Georgia, leading other states to sense a “revenue opportunity” in locking up their own laws. However, hopefully, the court recognizes the basic absurdity of using copyright on any set of laws, even when it includes annotations from third parties.

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Comments on “Supreme Court To Review Whether Or Not You Can Copyright State Laws”

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50 Comments
DannyB (profile) says:

Re: Ownership

Unlike with copyright, if a state could patent its laws, the law doesn’t need to be hidden. The patent protects the invention, which must be disclosed openly so that other states skilled in the art could reproduce those laws — under a suitable patent license of course.

I am not an expert in IP law, so I have a question.

Question: would obeying the law require a patent license?

DannyB (profile) says:

Re: Re: Re:2 Should take about five minutes

Wow, I just realized my last sentence . . .

The only possible motive for creating something is to get paid.

The only possible motive for creating LAWS is to get paid? That actually seems to be true these days, since corporations and wealthy people acquire and trade politicians like kids trade baseball cards.

Paul Brinker (profile) says:

Re: Re:

Most professional codes, enshrined often in state law, but not written into the law other then "The State adopts, in its entirety, The Common Electrical code, published by x, ISDN 123" – A copyrighted work, that you know you have to follow, but you must pay to access.

I am fairly sure the supreme court will make clear that laws are only binding if you can access them, thus instead a copy of "The Common Electrical Code" will be found in the basement of the library found in the least populated town, located in the least populated area of the state for anyone to gain access to.

The door will of course say "Do Not enter", the light bulb will be out, and a guard dog will be posted in the room. Its not our fault that you cant gain access to the code.

Anonymous Coward says:

Re: Re: Re:

Most places use the National Electric Code (NEC). Usually with a date specifier.

I’ve also never had trouble going to a local library and viewing a copy of whatever the local building codes are based on. They usually have at least one copy they do not lend out for the reason’s you are implying.

I agree that all laws should be in the public domain, but I’ve never encountered any place that actively tries to hide the laws. But then again, I’ve never dealt with Georgia.

Anonymous Coward says:

Re: Re: Re:2 Re:

I had no trouble satisfying the building inspector. I did buy a copy of the NEC, but that was mostly for my own edification. I didn’t really need it for the changes I was making. IIRC, I went to the library to check the building code twice during a very large remodel project. The first was before we started real planning, and the second was just before submitting the final plans for the permits.

Once you get the basics from the building codes, you can usually find the important details on line. Last time I did any wiring, I just googled the wire size tables and the deratings.

Of course, I tend to over engineer everything and put a lot of effort into doing all the steps properly, so usually building inspectors are impressed by the quality of my work. In fact, one time an electrician looked at the quick hack I did to deal with a smoking outlet and offered me a job. Another electrician asked to exchange electrical work on my house for tile work on his. So I may not be a good example.

Dan (profile) says:

Re: Re: Re: Re:

Annotations and summaries are not just abstract musings.

Of course they aren’t–they’re specific summaries of specific decisions as they relate to specific points of law. As such, they are original (if brief) works of authorship, they’re fixed in a tangible medium of expression, and therefore they’re presumptively copyrightable.

They are relied upon by other court cases and make new law.

(citation needed). Seriously, just one will do. Which court, in which case, specifically relied on which annotation (rather than the court decision summarized in the annotation) in making its decision? Mike made this claim a few times when the case was first filed, but ultimately corrected himself.

Really, except for the unusual situation in Georgia with there being an "official" annotated code, this wouldn’t be a close case. Almost all states have annotated codes, they’re privately published (usually there are two, by two competing publishers), and they’re copyrighted (as to the annotations, not as to the text of the law itself). There’s no question but that if Malamud had copied one of those, it would be copyright infringement with no reasonable defense.

But in Georgia, they have the unusual situation of having an official annotated code. The annotations are no more the law than they are in any other state, but the 11th Circuit held that their status as "official" made them close enough to the law that they aren’t copyrightable. I think they were mistaken in this, but it’s an interesting question that hasn’t (to my knowledge) been addressed before. I’m also a little surprised the Supreme Court granted cert in the case.

Rocky says:

Re: Re: Re:2 Re:

Of course they aren’t–they’re specific summaries of specific decisions as they relate to specific points of law. As such, they are original (if brief) works of authorship, they’re fixed in a tangible medium of expression, and therefore they’re presumptively copyrightable.

From one viewpoint you could argue that the annotations are summaries of facts, which would mean they could fall outside the scope copyrightable subject matter.

Dan (profile) says:

Re: Re: Re:3 Re:

That would be an interesting argument, and I’m not sure if it’s been made before. I’m not sure it would succeed, though. The point of facts not being copyrightable is that there’s essentially no creativity involved; the facts themselves pretty well dictate any design decisions (as in a phone book–there are really only two sensible ways to list the numbers: alpha by name, or in order by phone number).

But to summarize a court’s decision as related to a certain section of the code, there’s a near-infinite number of ways in which that could be done. The summary can be copyrightable, even if the material summarized isn’t (you’d better believe that the Cliff Notes of Shakespeare’s works are copyrighted, even though Shakespeare is in the public domain).

So I suspect this argument fails. But then, I expected Malamud’s argument to fail–I could certainly be wrong.

Anonymous Coward says:

Re: Re: Re:5 Re:

I would like to know just how the writing of our laws is considered to be promoting the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The pretzel logic used is impressive I imagine.

Thad (profile) says:

Re: Disappointing

It’s a bit disappointing that the Supreme Court thinks there is something here that needs a hearing and has not simply affirmed the 11th circuit decision.

Did you read the article?

Malamud [the plaintiff] also asked the Supreme Court to take the case, noting that while the 11th Circuit ruling was persuasive, it was not binding across the rest of the country, and it would certainly be nice for the Supreme Court to just rule, flat out, that you can’t copyright laws.

If the Supreme Court didn’t take the case, then the decision wouldn’t apply to most of the country.

Anonymous Coward says:

When I published California law...

several years ago, I emailed Thompson-West because they held the “copyright” to the California Code of Regulations. I asked how they could have a copyright on the law and how they could stop anyone from publishing the law, considering §11344.7 of the California Government Code says anyone can make and sell copies. They responded that the copyright is valid but wouldn’t confirm if they would or would not sue me if I made one available.

…I also had multiple Thompson-West employees look over my LinkedIn profile over the next few weeks…

Anonymous Coward says:

maybe expand fair-use

People should obviously be allowed to make copies of laws that affect them, whether copyrighted or not. However, state governments should not be allowed to simply rip off a facsimile of another state’s laws without attribution, permission, or just compensation.

Maybe some exceptions could be made, such as with "assault weapon" laws, since most ‘authors’ of such laws tend to be complete idiots on the subject, and they won’t look so stupid, or have to do much homework, if instead of crafting their own laws, they simply copy the same text that all the other anti-2nd Amendment states have on the books.

That One Guy (profile) says:

Re: Re: Re: Re:

That’s the point of not bringing them up. Trolls thrive on attention, all the more so if they don’t even have to do anything for people to give it to them.

Refusing to engage in troll baiting is not for their sake, it’s refusing to give the trolls what they want. If someone really wants to get under the skin of a troll not mentioning them is going to be a lot more effective than making it clear that even when they aren’t around people are still thinking of them.

Anonymous Coward says:

Re: Re: Re:2 Re:

If "not giving the trolls what they want" is your approach to all this be prepared to be disappointed.

Techdirt trolls can and will troll whenever, however, and on whatever they want. They’ll do it regardless of whether some other chucklefuck has a laugh at their expense. They’ll interpret every reaction or lack thereof as a win. Nobody has to do shit and Herrick is going to be back next week, with another story on how "he wanted to leave but found six shitposts about his habit of stalking Masnick’s daughters so he absolutely had to come back", or how calling Masnick’s family POS’s got him flagged by the spam filter.

If your approach is to deal with it by widening the amount of shit you can’t post you’re playing into blue’s copyright-cumstained hands, not the OP.

Nobody cares what the trolls want. But making them look like idiots? I can get behind that.

Anonymous Coward says:

Re: Re:

This is just another example of the privatize everything craze which is very popular in rich conservative circles. According to these folk, business can do anything more efficiently than government. However, they do not seem to have any corroborating evidence in support of such claims. In addition, the much proclaimed public benefits never seem to materialize.

DannyB (profile) says:

New Copyright Collection Society is needed

If laws are copyrighted, then would obeying the law require a copyright license?

Would obeying the law without a license constitute copyright infringement?

With so many jurisdictions (city, county, state, federal) and so many laws, there are a lot of copyright licenses that each citizen would need to acquire.

To simplify things, collection societies could be created. These societies would obtain the rights to license and enforce the licenses on copyright ‘bundles’ of various laws.

When a new law is passed, one of the copyright societies would acquire the rights to it and add it to its bundle. Now you can get a proper copyright license — necessary to obey the laws — from one convenient place, and with one single copyright fee.

Oh, wait — but with multiple copyright societies, each licensing different subsets of the laws, it seems you would still have to go to multiple parties in order to acquire all of the necessary licenses in order to obey the laws without infringing the copyrights of those laws.

So maybe congress could establish a new federal department of law licensing. Give it suitably large budget, offices, staff, etc. Every citizen could be required, annually, just like with taxes, to file forms declaring that they intend to obey the laws, and paying the copyright license fees for those copyrighted laws they intend to follow.

There. That should fix everything.

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