Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws

from the get-out-of-here dept

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.

Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.

It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.

Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

It appears that this is par for the course for the real life grownups who work for the State of Georgia:

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

The letter also addresses Anders Ganten of LexisNexis (owned by the RELX Group, a company based in the UK):

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges.

No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order -- but even worse, they are refusing to sell a copy of their legal code (already a bizarre stance) out of fear that Malamud will make it easier for the public to read the laws. If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

Filed Under: carl malamud, copyright, georgia, ocga, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org


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  • icon
    Bamboo Harvester (profile), 7 Jan 2019 @ 10:56am

    Seriously...

    ...this is the year of the Monty Python skit.

    We go from Ministry of Silly Walks last week straight to the skit that followed it, The Piranha Brothers (Doug & Dinsdale) with this one:

    Interviewer But the police have film of Dinsdale actually nailing your head to the floor.
    Stig Oh yeah, well - he did that, yeah.
    Interviewer Why?
    Stig Well he had to, didn't he? I mean, be fair, there was nothing else he could do. I mean, I had transgressed the unwritten law.
    Interviewer What had you done?
    Stig Er... Well he never told me that. But he gave me his word that it was the case, and that's good enough for me with old Dinsy.

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

  • icon
    Gary (profile), 7 Jan 2019 @ 11:08am

    Anyone

    Anyone that is actually and intentionally blocked from seeing the Georgia laws should get a free pass when it comes to breaking those laws, eh?

    "Your honor, I actively petitioned the state beforehand to see if I was complying with the state law and was rebuffed."

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

    • icon
      ShadowNinja (profile), 7 Jan 2019 @ 12:31pm

      Re: Anyone

      No of course we can't let them off the hook!

      Think of the private prisons! Georgia has to keep arresting lots of people to keep them filled at over 90% their occupancy level or else they'll owe them over ten million dollars in penalties!

      We can't just admit that there's not enough crime to fill those prisons and stop signing such bad deals with the private prison owners! We've got to create more criminals instead!

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

    • icon
      That One Guy (profile), 7 Jan 2019 @ 5:34pm

      'Beware of the leopard.'

      Ah, but you can see the law, you just need to jump through a few insignificant little hoops, and pay a minor little fee.

      Really, how could they possibly make it any easier for you, you don't expect people to be able to read the law that they are bound by for free do you?

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

  • identicon
    David, 7 Jan 2019 @ 11:08am

    I have no problems with annotated laws being copyrighted

    Annotations are a lot of work done outside of writing the laws. The problem is that the state of Georgia does not offer their laws in an unannotated version. If they delegate the printing of the law to a third party and don't put out a version that is without copyright, they are violating the law. That does not mean that the annotated laws can legally be copied and redistributed: the fundamental violation of the obligations of the state of Georgia cannot be bypassed in some Robin Hood manner of taking the law into one's own hands.

    Georgia could likely follow its obligations in an expedited manner even by disowning the copyright holder in the annotations, like land owners are disowned for utility poles. But of course this means it has to pay adequate compensation for annulling the rights of the publisher.

    All of the viable avenues of bringing themselves speedily in compliance with federal law are really expensive now, through their own fault.

    In contrast, fucking with Carl Malamud's orders is cheap. Unfortunately, it is only a stopgap measure that will save money and trouble only if they work in parallel on an unannotated version of the law that can be ordered as well.

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

    • icon
      IAmNotYourLawyer (profile), 7 Jan 2019 @ 12:01pm

      Re: I have no problems with annotated laws being copyrighted

      That doesn't follow the appellate court's rationale.

      The court ruled that the OCGA was uncopyrightable- not that the State or Lexis had a copyright but posting the annotations was fair use.

      An analysis of these factors yields the conclusion that the annotations in the OCGA, while not having the force of law, are part and parcel of the law. They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life. In consequence, they too represent a work, like the statutes themselves, that is constructively authored by the People. They are therefore uncopyrightable.

      The reasoning was that the State was sponsoring and directing the development of the annotations, so that the author of the annotations was "the people" rather than Lexis.

      If the annotations were developed solely by a private entity (e.g., Lexis or West), I'm confident that they'd be copyrightable. But in this case, they were considered authored by the public (through the State), so there is no copyright.

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

      • icon
        IAmNotYourLawyer (profile), 7 Jan 2019 @ 5:48pm

        Re: Re: I have no problems with annotated laws being copyrighted

        Typo: "not that the State or Lexis had a copyright <del>but</del> or posting the annotations was fair use"

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

    • identicon
      Bill Baldwin, 9 Jan 2019 @ 8:26am

      Re: I have no problems with annotated laws being copyrighted

      This statement from the first paragraph of the article seems relevant: "Georgia has a somewhat bizarre system in which the only official version of their law is the 'officially' annotated version". If that's so, Georgia is blocking public access to the ONLY OFFICIAL version of their law that exists.

      So I think your first sentence may be mistaken. THESE annotations are not "work done outside of writing the laws". They constitute PART of writing the laws. Sure, Georgia could "offer their laws in an unannotated version," but that wouldn't solve the problem. The unannotated version is not the official one.

      The annotations may take a lot of work, sure. So did the actual text of the legislation. And together, the text and annotations constitute the official law of Georgia. The people have a right to see it.

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

  • icon
    Ninja (profile), 7 Jan 2019 @ 11:14am

    And I just commented on punishing public servants that grossly fail their job. Seriously, this should come with extra penalties and job losses.

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

  • icon
    hij (profile), 7 Jan 2019 @ 11:31am

    Mature and reasonable - lol

    You lost me when you presumed that the state would be mature and reasonable about losing control and allowing the little people the same access to information as the important people(TM). Although, I am sure they are willing to forgo forcing police officers to have to take the trouble to know any of the laws they are supposed to enforce when they can just make up their own instead.

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

    • identicon
      David, 7 Jan 2019 @ 11:42am

      Re: Mature and reasonable - lol

      You lost me when you presumed that the state would be mature and reasonable about losing control and allowing the little people the same access to information as the important people(TM)

      That's a misrepresentation. They don't have the right to allow "the little people" or anybody else unfettered copying of annotations copyrighted by someone else.

      They fucked up big time. Probably the fastest way to come into compliance with federal law would be to buy the copyrights off the publisher of the annotated version for whatever price they are willing to part with them.

      But they don't have the option to pretend they own the copyright on the annotations, or that there is no copyright on them.

      Of course they'd want to try and keep the money they saved by breaking the law. But the current attempt at going for a legal train wreck is not going to lead there.

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

      • icon
        James Burkhardt (profile), 7 Jan 2019 @ 11:58am

        Re: Re: Mature and reasonable - lol

        There were two questions in the lawsuit - if the annotations had copyright in them (sweat of the brow alone does not a copyright make), and if the state could enforce the copyright given that the annotations were considered the law.

        The first question was answered that, in principle, annotations could be copyrightable. But the second question was the problem.

        The state passes a law when Lexus Nexus creates a new Official Code of Georgia, Anntotated (OCGA). This law incorporates the Annotations into the Official Code of Georgia, and changes the Code to incorporate the annotations as law. Its not mearly that the unannotated law is 'not available'. The issue is that lacking annotations, you do not have the full body of law. The Legislature codifies the annotations into the law. Therefore, the Official Code of Georgia, Annotated, specifically, cannot be barred from distribution by copyright because it is now a product of the legislature.

        This doesn't bar Annotated Law have a copyright, only that you shouldn't give the copyright to the state and let them make it official law.

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

        • identicon
          Anonymous Coward, 7 Jan 2019 @ 12:26pm

          Re: Re: Re: Mature and reasonable - lol

          Maybe they could do like most other states and not designate the annotated version as official law, and only designate the unannotated form as official law.

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

          • icon
            James Burkhardt (profile), 7 Jan 2019 @ 12:40pm

            Re: Re: Re: Re: Mature and reasonable - lol

            They'd also have to likely stop directing its creation, but yes, that would have been the smart thing to do.

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

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 12:25pm

        Re: Re: Mature and reasonable - lol

        Those annotations are re-worded facts referring to other law. If anything, they are infringing on the works of the courts, lawyers, and other legislators. Either this, or facts are non-copyrightable. Pick your poison.

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

      • identicon
        Peter Orlowicz, 9 Jan 2019 @ 1:20pm

        Re: Re: Mature and reasonable - lol

        How do you account for the fact that the publication agreement between Lexis and Georgia specifically provides that copyright is claimed in the name of the State of Georgia? Georgia doesn't have to buy the copyright from Lexis, because Georgia never intended that Lexis hold the copyright. Lexis didn't have editorial control over what the annotations said; Georgia did, and according to the Eleventh Circuit, Lexis isn't the author of the annotated code, Georgia is.

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

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 11:35am

    Optics

    Why doesn't the Georgia executive branch just step in to improve the situation?

    Use a state government program funding public education to buy a copy of the annotated laws, put it through a shredder and send it to Malamud in a bag with a match box with one match.

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

  • icon
    K`Tetch (profile), 7 Jan 2019 @ 11:56am

    I'd offer to be his intermediary, but for some odd reason, he's not only ignoring my emails, he's blocked me on Twitter. Kinda odd, that he doesn't seem to want to communicate with the wider Georgia community on this.

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

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 12:04pm

    What did the court order?

    No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order

    I can't agree, because I don't see anything about a court order in the story. What am I missing? What was ordered, and what actions are contrary to that?

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

    • icon
      MDT (profile), 7 Jan 2019 @ 12:15pm

      Re: What did the court order?

      Short Anser : RTFA

      Slightly longer answer : Read the F****** Article.

      Longest Answer : If you read the article, and notice the blued and bold text in the first paragraph, you'll find a link to the previous article discussing the court handing down orders that the State could not have Copyright in the law, and must make it available without copyright limitations.

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

      • identicon
        Anonymous Coward, 7 Jan 2019 @ 1:20pm

        Re: Re: What did the court order?

        you'll find a link to the previous article discussing the court handing down orders that the State could not have Copyright in the law, and must make it available without copyright limitations.

        I'm still not seeing it. The first link is about a ruling, not an order, and the closest I see is: "The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all."

        That prevents the state and LexisNexis from using copyright to stop publication, but doesn't require either party to deal with Malamud. (Mike's absolutely correct that their refusal makes them look like petty tyrants.) Malamud is entirely free to publish it, if he can get his hands on it some other way.

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

        • icon
          Stephen T. Stone (profile), 7 Jan 2019 @ 1:27pm

          Malamud is entirely free to publish it, if he can get his hands on it some other way.

          Which is the entire point of the article: He should not have to acquire a copy of those laws “some other way”.

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

          • identicon
            Anonymous Coward, 7 Jan 2019 @ 4:53pm

            Re:

            Which is the entire point of the article: He should not have to acquire a copy of those laws “some other way”.

            I agree, but it doesn't answer the question: what part of their bullshit contradicts a court order? It seems, in fact, that they're not ignoring the order but reading it very very carefully to find some legal way to violate its spirit.

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

            • icon
              Stephen T. Stone (profile), 7 Jan 2019 @ 5:14pm

              they're not ignoring the order but reading it … carefully to find some legal way to violate its spirit

              Violating the spirit of the order out of spite may as well be the same thing as violating the text of the order. Different methods, same result.

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

        • identicon
          here ya go old sport, 7 Jan 2019 @ 1:32pm

          Re: Re: Re: What did the court order?

          An analysis of these factors yields the conclusion that the annotations in the OCGA, while not having the force of law, are part and parcel of the law. They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life. In consequence, they too represent a work, like the statutes themselves, that is constructively authored by the People. They are therefore uncopyrightable.

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

  • identicon
    Tin-Foil-Hat, 7 Jan 2019 @ 12:14pm

    The (non-public) Domain of Tyrants

    It reminds me of the reaction of the Catholic Church when the bible was tranlated into English, usurping their power. Until then, most commoners could not directly read or understand the Latin bible and had to take the word of the Catholic Church who exploited the knowledge imbalance to their own ends.

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

  • icon
    That Anonymous Coward (profile), 7 Jan 2019 @ 12:58pm

    It is rather confusing how a state could think locking the law behind doors you have to pay to open is a good idea.

    We have enough secret laws in this country already, all for our own good (despite the overwhelm evidence it is being abused & nothing is ever done to deal with the abuses).

    Pretty sure citizens paid you all to make these laws, yet you think they need to pay you more to check and see if they are violating the law... when we're taught from an early age that ignorance of the law is no excuse...

    I really want to see someone end up in court & try the defense of ignorance of the law is no excuse your honor, but I shouldn't have to pay a fee to an outside vendor to learn what the law actually says.

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

    • identicon
      Anonymous Coward, 8 Jan 2019 @ 9:35am

      Re:

      There should not be any secret laws.
      Not sure why this is so difficult for some.

      When laws are secret, law enforcement can make up any shit they want. We have already seen several examples of this in the US and it happens all too much elsewhere.

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

  • identicon
    stine, 7 Jan 2019 @ 3:03pm

    Tell Carl this:

    Their priced for the CDROM version is $1,324.00 and he should call 1-877-394-8826 between 8am and 8pm (ET) M-F to order it.
    ISBN number is 9780327107194 and its in stock.

    but with the ISBN number, I'd just get it from the LoC, here's the link:
    https://lccn.loc.gov/2005208650

    And its a No Charge item.

    Good luck Carl.

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

  • identicon
    Personanongrata, 7 Jan 2019 @ 4:45pm

    Yes, Georgia, there are Tyrants About

    If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

    Dear Georgia citizen,

    * When in the course of human events your own government is trying to hide its laws from you a reasonable person might be tempted to believe that their system of representative governance is a complete sham.

    *Borrowed from the US Declaration of Independence

    https://www.archives.gov/founding-docs/declaration-transcript

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

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 6:05pm

    Which would win? Ignorance of the law is no excuse, or the impossibility of enforcing a law citizens by definition cannot possess due to the sacrosanct copyright protection?

    Sadly we all know that no matter which option holds true the citizen always loses.

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

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 6:17pm

    I find it interesting that a government can hold "intellectual property" rights. What type of government is this again?

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

  • identicon
    Christenson, 7 Jan 2019 @ 6:33pm

    Qualified immunity

    This is a case where qualified immunity should be stripped of the officials. A Court order here is "clearly established law", and it is being violated.

    Carl should also start thinking up nonsense laws...and saying they are Georgia State Law. When the guvnr says no, he says "prove it", show me the law!

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

  • identicon
    Anonymous Coward, 7 Jan 2019 @ 11:50pm

    Turns out Georgia isn't pleased when actual copyright law is enforced.

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

  • identicon
    ELaw, 9 Jan 2019 @ 4:40am

    RELX = bad

    While the state of Georgia bears primary responsibility for this, it's hardly the first time the RELX group has been involved in this type of thing. Research it yourself... trying to gain control of public-domain information and charge for access is a common pattern with that company.

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

  • identicon
    Donovan, 9 Jan 2019 @ 11:57am

    “But the plans were on display…”
    “On display? I eventually had to go down to the cellar to find them.”
    “That’s the display department.”
    “With a flashlight.”
    “Ah, well, the lights had probably gone.”
    “So had the stairs.”
    “But look, you found the notice, didn’t you?”
    “Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.” 
    ― Douglas Adams, The Hitchhiker's Guide to the Galaxy

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

  • identicon
    pxxat2, 28 Jan 2019 @ 4:53pm

    Georgia - OCGA

    The law is written not for lawyers, it is written for the people, thus ignorance of the law is no excuse..based on those facts, then the government by denying its citizen access to the laws that they must obey, lose the right to prosecute those same citizen with the laws they are not entitled to know about. You can not run a government, and impose laws and restrictions in secret tribunals, unbeknownst to those you would hold liable to those laws and restrictions.To deny knowledge of and access to the laws enacted, absolves the people of the responsibility to obey them.

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


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