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
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
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.
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 ...
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.