Mississippi The Latest State To Claim Copyright Over Official Compilation Of Its Laws

from the locking-up-the-law dept

We've written about Carl Malamud and his ongoing crusade to make sure that the law is actually publicly accessible and not locked up by copyright. Just recently, we noted that he'd run into some troubles with Georgia, and it appears now he's facing a similar challenge from Mississippi. The basic story was actually posted as an update to Malamud's ongoing Kickstarter project, which we've already told you about.

The issue? Malamud had purchased, formatted and posted Mississippi's Code of Law, Annotated. As with Georgia, the real issue seems to be in the question of whether or not the annotations themselves are covered by copyright, as they're often produced and sold by a private company (usually LexisNexis), but in coordination with the government. That's the case here, as the letter Malamud received from Mississippi's intellectual property counsel, Larry Schemmel, suggests. Schemmel goes to great lengths to point out that the unannotated code is "freely available," but that the "creative work" behind the annotations is covered by copyright, and thus should be taken off of Malamud's site.

However, as Malamud notes in his response letter (complete with a bunch of "exhibits"), the State of Mississippi makes it fairly clear that the annotated code is part of the law, and thus he argues it, too, should be freely accessible:
Exhibit K contains the marketing literature provided by your vendor. As you can see, any citizen and certainly any lawyer would feel totally remiss in not using the the official annotated version of the Code. The marketing literature stresses that:
Be sure that the law you read is the law indeed
Official isn’t just a word. It’s a process. The Mississippi Joint Legislative Committee on Compilation, Revision and Publication of Legislation maintains careful editorial control over the publication of the official code, from the moment LexisNexis receives the acts to the final galley proofs of the finished product. Their strict supervision ensures that the published code and its supplements contain no errors in content, conform carefully to the numbering scheme, and publish in a timely manner.

Cite the code that’s guaranteed to be right Because it’s official, you can rely on LexisNexis’ Mississippi Code of 1972 Annotated for the correct statement of the law ...
As you can see, it is very clear that the Code is the official statement of the law as promulgated by the State. This is not some independent commercial endeavor, this is an official process under the direction of the State.

I have attached as Exhibit L the same section earlier attached from Exhibit D, this one being the annotated version. As you can see by comparing the two, the Annotated Code includes important cross references, research references, and Editor’s Notes. The Editor’s notes are not simply creative work, they are important materials. For example, the note to § 1-1-11 is a reference to a statement adopted by the Joint Legislative Committee on Compilation, Revision and Publication of Legislation. Statements such as these are part and parcel of the law, statements of the codifiers that add important information to the original statutes.
Malamud further challenges (in great detail) the argument that even the unannotated version is freely available, noting that LexisNexis throws up a giant pop-up before you can access it that requires you to agree to terms and conditions that are not at all reasonable for public domain information like official laws.
Those Terms and Conditions, which are attached in Exhibit B, consists of an extensive license agreement spanning 5 pages of exceedingly technical language in fine print.

Some of the highlights of the agreement include fairly draconian prohibitions against efective use, including a prohibitions against the ability to “copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of this Web Site.”
He also notes that LexisNexis has made it impossible to share the information contained in even the unannotated law via a URL:
The user interface your vendor presents is full of links to various proprietary products, but there is a little print icon, which presents a semi-clean version of the text, as shown in Exhibit E. However, there is a huge flaw in the user interface, in that the URL that is presented does not allow a user to share what they are looking at with other users. If you mail the URL to a friend, you don’t get the section of the Code, you get a screen from your vendor hawking proprietary products as shown in Exhibit F.
He further notes that the site LexisNexis put together is "replete with HTML errors" as well as CSS errors, preventing modern browsers from being able to display it properly. Also (and this is potentially a big legal issue), the site does not comply with the accessbility requirements of the US Rehabilitation Act, which requires such information be made available to people with disabilities.

Malamud, in his Kickstarter update also highlights the incredibly detailed and painstaking process by which he sent this particular response to officials in Mississippi. This includes printing it all out and binding it very professionally, sending along a professional grade self-inking rubber stamp with the statement originally stated by Supreme Court Justice Stephen Breyer that "If a law isn't public, it isn't a law," and finally packing the whole thing up in a box with red, blue and white "crinkle-pak" in the design of the Mississippi flag. Here are just a few of the photos (more if you click on any of the images which will take you to the update):




This may seem like overkill (or just showing off your packing skills), but as Malamud explains, there's a very important reason to go to this level of detail:
You may wonder why all the hooptedoodle and fancy printing? We want to send a message that we're very serious about this and that posting the Mississippi Code was not a casual hack, but a deliberate and carefully considered decision to make the laws of the states available to citizens. I've been presenting these kinds of issues to governments for over 20 years, and I've learned that you have to show determination, and nothing shows determination like a professional-grade rubber stamp.
On that note, I'm heading out to get some professional-grade rubber stamps.




Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    That Anonymous Coward (profile), Oct 14th, 2013 @ 12:15pm

    As many of them were written by corporations, is it any surprise they want to keep control?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 12:28pm

    "nothing shows determination like a professional-grade rubber stamp"

    Kind of like the one the FISA court uses.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 12:47pm

    The state's incentive is to have more prisoners

    So, some states with lots of privately owned and run prisons want to keep the laws locked up behind copyright.

    And the private prisons write contracts that make the state pay big penalties if their private prisons aren't at say 90% of maximum capacity or higher all the time. This gives the states more incentives to throw more people in jail since it'll actually cost the state more to have less crime and pay the big penalties to private prisons then it will to have more prisoners they have to pay for (each prisoner costs an average of $30,000 a year to keep behind bars, that includes housing, food, clothing, and court costs).

    Hmm... maybe that's why a bunch of short sighted states want to keep their laws secret behind things like copyright.

     

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  4.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 1:26pm

    Re: The state's incentive is to have more prisoners

    it'll actually cost the state more to have less crime and pay the big penalties to private prisons then it will to have more prisoners they have to pay for


    No. They only have to pay for the unused beds. (Although I agree that private prisons is a stupid concept; there are some things that SHOULD be done by the state, and this is obviously one of them.)

    And how many people each year actually go to prison because they did not have access to the law? Not how many break the law, not how many get caught, not how many get charged, not even how many get convicted. How many actually receive prison time (not jail or probation or fines) from an ignorance of the law that would have been cured if the law had been more freely accessible? Do you think it would even be 0.01% of the total prison population?

    I agree that copyrighting the law is stupid, but this is not the reason they did it.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 1:27pm

    One of these days I'll be shocked and see a story which legitimately casts Mississippi in a positive light regarding some issue, but that day has not come yet.

     

    reply to this | link to this | view in thread ]

  6.  
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    art guerrilla (profile), Oct 14th, 2013 @ 1:41pm

    Carl Malamud = Great Citizen

    That is all.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    mmm, Oct 14th, 2013 @ 2:15pm

    Kinda specious set of arguments

    As a lawyer, nothing is more frustrating than Lexis having control over the annotated versions of the statutes. But this letter is stupid.

    Why start with the stupid popup/license question? I can repurpose and apply all the contractual/license limitations that I want to public domain sets of works. Heck, one could even charge if they wanted. The real problem is there is no ability to sue for copyright infringement. And to be very clear, private parties enter into these sorts of arrangements all the time.

    What's more, I'm sure that the State's site is for more than just the laws. Those terms probably apply to a lot of things. Sloppy legal drafting? Probably. Good argument? Not really.

    Last point, nothing requires the State (or anyone) to make the laws available online. Paying a third party to host, update and maintain is a valid decision.

    That's just a lame argument.

    Complaining about the user interface is equally lame.

    Finally, I have no idea what his point is regarding the annotations. Maybe I missed it. If he's arguing that the legislature created the annotations, the cross references, the history, etc. Why doesn't he just say that?

    If they didn't create them (or all of them), then shouldn't he then explain why Lexis should have to give those away for free? It doesn't seem to me to matter if the Legislature reviews the annotations, if Lexis created them, then what's the reason they have to give them away?

     

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  8.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 2:30pm

    Re:

    Judge: How do you plead?
    Defendant: Innocent by reason of Officer didn't renew his license on that law.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 2:31pm

    Re:

    Score.

     

    reply to this | link to this | view in thread ]

  10.  
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    Rikuo (profile), Oct 14th, 2013 @ 2:53pm

    Re: Kinda specious set of arguments

    He's arguing that the work produced by Lexis is done under the control and direction of the State, thereby making any resulting works public domain by default.
    As per his complaint about the user interface, he mentions it's a problem with the unannotated law, not just the annotations Lexis makes. Just because it's an outside company doing most of the work (with the State maintaining editorial control as per their marketing literature) doesn't mean the site doesn't have to adhere to disabilities laws.

     

    reply to this | link to this | view in thread ]

  11.  
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    G Thompson (profile), Oct 14th, 2013 @ 3:54pm

    Re: Kinda specious set of arguments

    I gather SPECIFICITY wasn't/isn't your strong suit in regards to contracts/torts/statutes/anything then

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 4:08pm

    I am surprised that at no point did this person argue that the laws are facts, and as such, not subject to copyright.

     

    reply to this | link to this | view in thread ]

  13.  
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    Urgelt (profile), Oct 14th, 2013 @ 4:19pm

    Re: Re: The state's incentive is to have more prisoners

    AC wrote, "No. They only have to pay for the unused beds."

    That isn't correct. A filled bed is (obviously) not free.

    I think what you were trying to get at is that their costs are fixed by the number of beds. But that isn't true, either. Unused beds means less direct costs associated with housing prisoners, such as food, medical, and water consumption, and possibly - if there are enough unused beds - guard salaries and even overhead.

    All told, a seriously incorrect answer, AC.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    AC, Oct 14th, 2013 @ 4:25pm

    We can stop pretending now.

    This is just extortion: If you want access to the law, you're forced to pay the subversive corporate rent-taker.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 6:58pm

    Re: Re: Kinda specious set of arguments

    Public domain by default? The default applies only to works of the US Government.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 7:24pm

    I want to try a line of argument:

    Without copyright there would be no incentive to create (I know, I know. I'm being facetious - let it ride)

    They are claiming copyright over part of the laws

    Therefore without copyright they wouldn't have created the laws in the first place

    Copyright legislation was enacted without copyright laws providing an incentive to create the laws

    Therefore there was no incentive to create the copyright laws

    Therefore they don't exist...?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Oct 14th, 2013 @ 8:51pm

    You're under arrest.

    For what?

    Copies of the law are for sale at your local PD.

    What did I do wrong?

    $5.99 and you'll know.

    Don't Tazzzzzzzzzzzz!

     

    reply to this | link to this | view in thread ]

  18.  
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    Niall (profile), Oct 15th, 2013 @ 7:32am

    Re:

    Only where they are less backward and bigoted than, say, Alabama, Texas, or Tennessee.

     

    reply to this | link to this | view in thread ]

  19.  
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    Niall (profile), Oct 15th, 2013 @ 7:34am

    Re: Re: Re: Kinda specious set of arguments

    This is published on behalf of the government, and it involves the public law, so it should be public domain. Otherwise by your argument if a state pays a private company to build a major road, it's automatically not a public highway.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Sneeje (profile), Oct 15th, 2013 @ 9:15am

    Re:

    First I laughed and went to flick "funny"... then I realized it was true. :(

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    RadialSkid (profile), Oct 18th, 2013 @ 5:20pm

    Re:

    Jackson University Medical not too long ago reported the first functionally cured HIV infection. This is the same hospital that first pioneered human heart and lung transplants.

    There you go.

     

    reply to this | link to this | view in thread ]


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