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.

Filed Under: 11th circuit, carl malamud, copyright, georgia, laws, official code of georgia annotated, ogca, public domain, supreme court
Companies: lexisnexis


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  • icon
    Gary (profile), 26 Jun 2019 @ 1:55pm

    Ownership

    Well this will settle the question - Can corporations own, and hide the law?

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

    • icon
      PaulT (profile), 26 Jun 2019 @ 11:44pm

      Re: Ownership

      Well, they do buy it already, so owning it wouldn't be a stretch in the kinds of some people.

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

    • icon
      DannyB (profile), 27 Jun 2019 @ 6:04am

      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?

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

  • icon
    That One Guy (profile), 26 Jun 2019 @ 2:28pm

    Should take about five minutes

    Are the laws legally binding?

    Yes? No copyright protection.

    Case closed, clear the courtroom for the next case.

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

    • icon
      DannyB (profile), 27 Jun 2019 @ 6:06am

      Re: Should take about five minutes

      It's not that simple.

      Without copyright, there would be no creativity whatsoever, and thus creative laws (like asset forfeiture) could never have been created.

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

      • identicon
        Anonymous Coward, 27 Jun 2019 @ 6:54am

        Re: Re: Should take about five minutes

        Sure it is.

        Many states don't copyright their laws and somehow they found a way to have asset forfeiture laws. I'm pretty sure they aren't licensing that law from Georgia.

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

        • icon
          DannyB (profile), 27 Jun 2019 @ 9:00am

          Re: Re: Re: Should take about five minutes

          But shouldn't they be licensing that law from Georgia? Creators deserve to get paid, or nothing new would get created. The only possible motive for creating something is to get paid.

          (I hope I didn't need an /s tag on that.)

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

          • icon
            DannyB (profile), 27 Jun 2019 @ 9:09am

            Re: Re: Re: Re: 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.

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 3:50pm

    One is charged a tax for the privilege of reading what the law says they need to adhere to? Well, not yet anyway.

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

    • identicon
      Paul Brinker, 26 Jun 2019 @ 10:07pm

      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.

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

      • identicon
        Anonymous Coward, 27 Jun 2019 @ 5:57am

        Re: Re:

        Beware of the Leopard

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

      • identicon
        Anonymous Coward, 27 Jun 2019 @ 10:29am

        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.

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

        • identicon
          Anonymous Coward, 27 Jun 2019 @ 11:15am

          Re: Re: Re:

          Now try and do something while keeping within code to satisfy a building inspector. Do you go to the library every time you have a question, or do you buy a copy of the book? (make a mistake and it's tear it out and start again)

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

          • identicon
            Anonymous Coward, 27 Jun 2019 @ 11:54am

            Re: Re: Re: 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.

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

        • identicon
          Anonymous Coward, 27 Jun 2019 @ 1:19pm

          Re: Re: Re:

          I've never encountered any place that actively tries to hide the laws.

          In the modern world, requiring people to physically go to a library to access something is hiding it.

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 3:59pm

    In a shocking twist:
    SCOTUS rules Malamud did infringe, but only because the book (as the law) was unconstitutional.

    (HINT: the above is fiction, and also an attempt at humor)

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 4:32pm

    An annotation is just sections of court written case law which apply to the statute. How are court opinions copyrightable?

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

    • icon
      Gary (profile), 26 Jun 2019 @ 6:49pm

      Re:

      An annotation is just sections of court written case law which apply to the statute. How are court opinions copyrightable?

      Those are what makes up American Common Law. Caselaw is a very important part of the laws you must follow.

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

    • identicon
      Dan, 26 Jun 2019 @ 8:06pm

      Re:

      They generally aren't. But your description of annotations is incorrect; they're summaries of the court decisions. Even if the decision isn't copyrightable, the summary is a separate work of authorship which is.

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

      • icon
        Gary (profile), 26 Jun 2019 @ 9:53pm

        Re: Re:

        Annotations and summaries are not just abstract musings. They are relied upon by other court cases and make new law.

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

        • identicon
          Dan, 27 Jun 2019 @ 12:53am

          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.

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

          • identicon
            Rocky, 27 Jun 2019 @ 3:35am

            Re: Re: Re: 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.

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

            • identicon
              Dan, 27 Jun 2019 @ 5:46am

              Re: Re: Re: Re: 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.

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

              • icon
                Gary (profile), 27 Jun 2019 @ 5:56am

                Re: Re: Re: Re: Re: Re:

                So court decisions have artistic merit, but aren't facts. And citing these cases isn't important to other cases. Right.

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

                • identicon
                  Anonymous Coward, 27 Jun 2019 @ 6:00am

                  Re: Re: Re: Re: Re: Re: 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.

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

  • identicon
    Whoever, 26 Jun 2019 @ 5:02pm

    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.

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

    • identicon
      Anonymous Coward, 26 Jun 2019 @ 5:54pm

      Re: Disappointing

      As the article points out, the 11th Circuit ruling doesn't apply nationwide. A SCOTUS ruling on the concept of copyrighting laws, however, would. No other state should be able to stop Malamud from publishing the laws of that state. A SCOTUS ruling in his favor would be a good thing.

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

    • icon
      Thad (profile), 27 Jun 2019 @ 8:20am

      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.

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

  • identicon
    Pixelation, 26 Jun 2019 @ 5:08pm

    Shit like this is just brain boogering.

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

  • identicon
    anonymouse, 26 Jun 2019 @ 5:37pm

    Coup

    We are in the middle of a slow rolling coup. This will open the door for all government activity to be done in secret and thus completely eliminating any public oversight.

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 6:55pm

    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 ยง11344.7 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...

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 7:02pm

    unreal the lengths govts will go to remove money from said subjects wallets

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 7:25pm

    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.

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

  • identicon
    Anonymous Coward, 26 Jun 2019 @ 9:21pm

    "But," John Smith clicked his tongue, "Who would ever follow the laws unless they were copyrighted?"

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

    • identicon
      LAquaker, 26 Jun 2019 @ 9:50pm

      Re: settled law

      Just hand out a single VHS tape of Georgia laws + Georgia's annotations, and trust the pyramid

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

    • icon
      Gary (profile), 26 Jun 2019 @ 9:55pm

      Re:

      "But," John Smith clicked his tongue, "Who would ever follow the laws unless they were copyrighted?"

      I think you mean, "Who would make new laws if they weren't copy-protected."

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

      • identicon
        Anonymous Coward, 27 Jun 2019 @ 6:04am

        Re: Re:

        Good point, if these laws are not given copyright protection then there is a significant risk of not having any new laws written! Oh Noes! The horror!

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

    • icon
      That One Guy (profile), 26 Jun 2019 @ 9:55pm

      Re:

      The only thing more pathetic than the TD trolls are people eagerly baiting them in hopes of getting them to show up, or otherwise talking about them before they have.

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

      • identicon
        Anonymous Coward, 26 Jun 2019 @ 10:15pm

        Re: Re:

        To each their own.

        I, on the other hand, and somewhat disappointed horse with no name went out with such a whimper at the news of Hansmeier's arrest.

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

        • identicon
          Anonymous Coward, 26 Jun 2019 @ 10:27pm

          Re: Re: Re:

          He took it very hard, didn't he? No wonder he started fawning after Hawley. Unluckily for him, even the conservatives won't touch the guy!

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

      • identicon
        Anonymous Coward, 27 Jun 2019 @ 4:40am

        Re: Re:

        ...Nah. Fuck John Smith. Fuck 'im!

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

        • icon
          That One Guy (profile), 27 Jun 2019 @ 11:14pm

          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.

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

          • identicon
            Anonymous Coward, 30 Jun 2019 @ 9:26pm

            Re: Re: Re: 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.

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

            • identicon
              Anonymous Coward, 1 Jul 2019 @ 3:06am

              Re: Re: Re: Re: Re:

              Nailed it.

              out_of_the_blue didn't appear for a year, and there were no discussions about him until he returned and chose, of his own volition, to be an even bigger asshole.

              He can go fuck himself and no amount of him staying away is going to temper that desire.

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

  • identicon
    Anonymous Coward, 27 Jun 2019 @ 5:25am

    Its common sense ,the public pays tax,s , the government makes the law and enforces it.
    Theres no way the laws and any annotations should be given to a private
    company to copyright and possible limit public acess to this information.

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

    • identicon
      Anonymous Coward, 27 Jun 2019 @ 6:10am

      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.

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

  • icon
    DannyB (profile), 27 Jun 2019 @ 6:18am

    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.

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

    • icon
      That One Guy (profile), 27 Jun 2019 @ 1:11pm

      Re: New Copyright Collection Society is needed

      I want to be able to vote that funny, I really do, but unfortunately it strikes me as far too believable given often copyright induces temporary if not long-term brain damage in politicians, judges, individuals and groups.

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


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