Carl Malamud's Response To Georgia's Lawsuit Over The Copyright Of Its Annotated Code
from the it-ain't-covered-by-copyright dept
We've written a couple of articles about the decision by the state of Georgia to sue Carl Malamud for posting its "Official Code of Georgia Annotated" online for people to read. As we noted in a later post, while the legal issues here are potentially complex, the basic moral issues are not: why would you ever want the "official" code of laws to be covered by copyright?The legal argument in favor of saying the OCGA is covered by copyright is that it's just the "annotations" (which discuss the caselaw related to the legal statutes), and it's developed by a private third party (LexisNexis) which then assigns the copyright to the state. But the very fact that the state repeatedly refers to and points to the annotated copy as its "official" law, and the fact that such annotations help the public more clearly understand the law, makes the argument fairly weak. And now, Malamud has filed his answer and counterclaims to the lawsuit, basically saying: (1) this is not covered by copyright in the first place and if it is then (2) it's fair use and if it's not fair use then it's (3) copyright misuse -- and finally if all that (and a few other things) fail, that stopping Malamud from posting such things would be "inimical to the public interest."
The response also takes at least some issue with the fact that the State of Georgia called Carl Malamud a "terrorist" for daring to publish a copy of its laws. Again, while the specific legal arguments here are interesting, I'm still at a loss as to why the state of Georgia thinks this is a wise use of taxpayer dollars. Even if it "wins," it does not come out of this lawsuit looking good. Bullying the guy who's helping to make your legal code more accessible doesn't seem like a good plan for government.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: annotated code, carl malamud, copyright, copyright misuse, fair use, georgia, law
Companies: public.resource.org
Reader Comments
Subscribe: RSS
View by: Time | Thread
Likely the State of Georgia thinks he's a terrorist...
[ link to this | view in chronology ]
Re: Likely the State of Georgia thinks he's a terrorist...
[ link to this | view in chronology ]
Re: Re: Likely the State of Georgia thinks he's a terrorist...
[ link to this | view in chronology ]
Re: Likely the State of Georgia thinks he's a terrorist...
Some lighter brown and some are almost black
I've studied every city, every town
And other colours' score amounts to jack
I've never seen a white man, that's a ghost,
And purely black means you've been mining coal.
So all that anyone can ever boast
Is that they have a slightly browner soul!
[ link to this | view in chronology ]
But it is in the interest of the state.
[ link to this | view in chronology ]
Re: But it is in the interest of the state.
[ link to this | view in chronology ]
Re: But it is in the interest of the state.
If we don't know it's a law - it becomes legal - correct?
[ link to this | view in chronology ]
Georgia
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Speaking of secret laws
[ link to this | view in chronology ]
Re: Speaking of secret laws
None of these treatises is the law. They explain and analyze the law, and judges will frequently cite to their analysis and explanation. Sometimes a court will explicitly adopt a part of the treatise's analysis, making that part the law, at least within his jurisdiction (and the court's opinion is thus in the public domain).
There's a good chance you could find at least some of them in your local law library (which is typically open to the public), but they're unlikely to be in the public library system--they're too expensive, and too specialized, for a public library to spend its money on them.
[ link to this | view in chronology ]
Re: Speaking of secret laws
The issue is not very secret; it's having to pay to know!
I have the same issues with various codes. When my localities' laws and regulations reference an ANSI, IBC, or NFPA document I find those not available in the localities' library but I can buy my own copies from various sources.
But $4000.00 is quite high! I could buy damn near the whole NFPA library for that, which includes so-called standards that nobody has codified.
[ link to this | view in chronology ]
Public interest
[ link to this | view in chronology ]
Indicative of the problem
[ link to this | view in chronology ]
It's Georgia!
[ link to this | view in chronology ]
Linda Ellis and Jim Hood and Elsevier
This was the same state where Linda Ellis got that crazy injunction against Mr Chan and they had to take it to the state supreme court!
Now, what I want to know is which member(s) of the code revision commission is being paid by Elsevier to do this stuff.
[ link to this | view in chronology ]
Terrorist means now just as much as the term communist meant in the 60's. pointless justification for useless security theatre designed to strip people of their rights and put absolute power into the hands of a few.
[ link to this | view in chronology ]
The limitation of access to this information is the bedrock of the monopolization of the the legal system by lawyers.
[ link to this | view in chronology ]
How can one follow the law,
Of course this would not be the first time that the state of Georgia was afraid that its own citizens are becoming more educated about the deliberation and execution of its laws.
As a side note, Tech Dirt may wish to make some inflammatory posts to it's own site from around the country, and index the man in the middle attacks occurring with various ISP's. Probably make a good article.
It's funny how using one or two keywords results in a de-escalated SSL certificate. Funnier still that it is costing the tax payer $1100 a month per tin foil hat, to watch this tripe get posted. (Comcast Law Enforcement Handbook, page 19.)
[ link to this | view in chronology ]
Re: How can one follow the law,
The issue in this case is Malamud's publication of the annotations, which are prepared and copyrighted by a private publisher (LexisNexis, in this case). It's never been seriously challenged that annotations are copyrightable, but in this case, the state has a contract with LexisNexis, and LexisNexis thus publishes the "Official" code of GA annotated. Malamud makes an interesting and novel legal argument that its status as the official annotated code somehow renders those annotations non-copyrightable. It's interesting, but I don't believe it will ultimately be successful. Deeming this an "official" state publication does not make it the law, and states are allowed to copyright publications.
This is also not in any way fair use. Malamud isn't doing anything transformative with the code, he's merely copying it outright. He's copying the entirety of a 40-volume commercial publication. And while the extent could certainly be disputed, it's pretty obvious that having the entirety of the publication available for free online will affect the market for that publication.
[ link to this | view in chronology ]
Re: Re: How can one follow the law,
While the number of decisions is rare, the number of whole exact and LEGAL copies made under fair use is vast. For example, using a VCR or TiVo or similar device to record a TV show for later viewing is legally recognized fair use, with no transformation whatsoever.
[ link to this | view in chronology ]
Re: Re: How can one follow the law,
True, but Georgia goes farther and passes a bill every year that says the statutes and numbering as found in that "official" state publication is reenacted (last one was HB 90, from 2015-2016 session, Section 54).
So not only is it the "official" version, but the statutes as found in the "official" state publication is in fact the actual law of Georgia (OCGA 28-9-5).
[ link to this | view in chronology ]
Re: How can one follow the law,
There are secret courts in the US. We have both the FISA court, wherein the judges almost always rubber-stamp the government requests to spy on citizens. I believe there were three cases over the years where the secret court did not comply with the government request, I presume the judges had a headache.
Fortunately, by way of headache powder, there is the FISA appeals court. It, too, is secret. It convenes but rarely because the ``trial-level'' FISA court is so compliant, and of course when it does convene it necessarily rules for the only party before it.
By the way, ``FISA'' stands for Foreign Intelligence Surveillance Act. We call it that because the spying is done against US citizens and rarely involves any intelligence. The court was established in 1978 by act of Congress. It permits the government to regulate the governmeent; this works about as well as you would expect.
There are also various military tribunals which operate with varying degrees of secrecy. We are allowed to know of the existence of at least some of them, such as the one in Cuba, though of course the proceedings are veiled in secrecy and the defendants are not uniformly allowed to see the evidence offered against them. The reason for the secrecy in these cases is that the courts and their proceedings would be an embarrasment if well known.
[ link to this | view in chronology ]
Re: How can one follow the law,
How I wish this were true.
[ link to this | view in chronology ]
Terrorist?
[ link to this | view in chronology ]
Georgia indictments
Here's an example of the State of Georgia citing the OGCA in a press release about a high profile indictment:
http://law.ga.gov/press-releases/2011-03-09/former-georgia-tech-professors-indicted-defra uding-university
[ link to this | view in chronology ]