Appeals Court Says Of Course Georgia's Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

from the huge-news dept

Fri, Oct 19th 2018 1:35pm — Mike Masnick

Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia's laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let's dig in:

For the past few years, we've been covering the fairly insane situation down in Georgia, where they insist that the state's annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia's laws are not covered by copyright. But here's where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to "annotate" the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only "official" version of Georgia's state laws is in the "annotated" version. If you want to look up the official law of Georgia you are sent to the "Official Code of Georgia Annotated" (OCGA), and it's hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend "the Official Code of Georgia Annotated," which certainly suggests that the OCGA -- all of it -- is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it's also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court's analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power -- which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where 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 court admits that there are strong arguments in both directions on this one, but:

... at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

Because of this, the court doesn't even need to do a fair use analysis. Since there's no copyright in the OCGA, the fair use question doesn't even matter, and Malamud (and anyone else) is free to post and access the full OCGA.

There's a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it's copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.

We'll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process -- namely bicameralism and presentment -- that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

This ruling also strengthens Malamud's arguments in some of his other legal fights, concerning the concept of "incorporation by reference," where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason -- and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).

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Filed Under: 11th circuit, annotations, carl malamud, copyright, georgia, law, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org

42 Comments

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Gary (profile), 19 Oct 2018 @ 1:23pm

Common Law
This is so obvious i just can't understand any court allowing these to be locked up with copytheft.
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John Roddy (profile), 19 Oct 2018 @ 1:33pm

Copyright law cannot be used to copyright law. There's certainly an argument for what counts as "law", but this is a scenario that benefited nobody. Yeah, LexisNexis gets paid, but was it worth it?

Really glad to see such a thorough analysis like this, and I expect it to be quoted quite a bit in the upcoming years.
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Stephen T. Stone (profile), 19 Oct 2018 @ 1:48pm

Re:

Copyright law cannot be used to copyright law.

…garden path sentences are the worst. 😛
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stine, 19 Oct 2018 @ 1:58pm

yay!
Congratilations to Carl Malamud and Public.Resource.org
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stine, 19 Oct 2018 @ 2:09pm

look out NFPAyou're next
For every city/state that incorporates the Natioal Electical Codes into building regulations, The National Fire Protection Association (NFPA) is going to be fumoing mad.
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Christenson, 19 Oct 2018 @ 2:14pm

Kudos to Mr Malamud...
That ruling is full of references and deferences to sister court precedent, even where it mentions that a local tax map was ruled copyrightable. Model building codes ruled non-copyrightable are included.

They actually remanded it back to the district court, so Mr Malamud should get his fees awarded...assuming the district court is actually fair.
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DB (profile), 19 Oct 2018 @ 2:21pm

Re: look out NFPAyou're next
I'm not as sure as you are about the NEC.

The first part of the analysis explicitly differentiates this case from the situation where externally written code is incorporated by reference.
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Ory Gennal, 19 Oct 2018 @ 2:26pm

Over the last month "Gary" has become BIG common law supporter!
Which is ODD, according to his prior questioning of it.

Still waiting for someone to explain this common law krap to me and how it keeps getting invoked.

https://www.techdirt.com/articles/20180828/15443240532/indiana-appeals-court-says-forcing- someone-to-unlock-their-phone-violates-5th-amendment.shtml#c373

AC stuns world with their own brillant news site, breaks all records as people rush to hear about common law.

https://www.techdirt.com/articles/20180715/22144840240/everything-thats-wrong-with-social-medi a-companies-big-tech-platforms-part-3.shtml#c120

I don't think "Common Law" means what you think it does. But, you do seem to be giving a hearty endorsement to repeal the useless 4th and 5th amendments. I guess the constitution is just a barrier to out Natural Rights?

https://www.techdirt.com/articles/20180707/20482740193/oregon-supreme-court-sets-up-new-lim its-digital-device-searches.shtml#c20

It does seem like any use of "natural person" does indicate a high level correlation to nonsense.

https://www.techdirt.com/articles/20180715/22144840240/everything-thats-wrong-with-social -media-companies-big-tech-platforms-part-3.shtml#c62

AC's post is pretty much unintelligible. All I took from that was the Supreme court has no authority because "Property" is common law??

https://www.techdirt.com/articles/20180305/01340539357/famous-racist-sues-twitter-claiming-it -violates-his-civil-rights-as-racist-to-be-kicked-off-platform.shtml#c77

Judging from your fantasy attacking "SovCit" (without ever defining that, either), I'm sure you'll try to claim that YOUR notion of common law is "right", while mine is the, er, real fantasy. But you don't actually state your views of what common law is, just throw that in while simply contradict. Looks to me as though you're only trying to subvert the notion and my use of it, NOT support.

So, "Gary" -- who uses "mate" now and then and mis-spells "favor" is by that evidence another serf of the UK -- perhaps you just don't understand American Common Law NOR the US Constitution, eh? Isn't it more likely that you who live under hereditary tyrants (an actual Sovereign! whom you never complain of) don't have the benefit of common law and don't understand it?

Since you're now self-proclaimed expert (too), try to state more facts / opinions about common law so that I have bigger target area; you're little more than gainsaying. -- With the wacky imagery of Dark Helmt, sort of the "lite" version, "darkflite"...

By the way, your 12th comment was after two years:

https://www.techdirt.com/articles/20171010/11150238379/emails-show-ice-couldnt-find-enough-da ngerous-immigrants-to-fulfill-adminstrations-fantasies.shtml#c34

And now, ODDLY, jumped up 380 more! What the heck caused that huge increase? (I ask only for Masnick 'cause he needs to do more of it!)
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Ory Gennal, 19 Oct 2018 @ 2:28pm

Re: Over the last month "Gary" has become BIG common law supporter!
Huh. That time I had to take "s" off plural "Sovcit" before went through.

Your mighty (apparently keywords) filter is CRAP, either pretty much random or fails on a second try.
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James Burkhardt (profile), 19 Oct 2018 @ 2:28pm

Re: Re: look out NFPAyou're next
There are certainly several distinctions made in the details of this ruling which separate the annotated law from an incorporation by reference. I think the core principles stated throughout are at odds with entire sections of the law being barred from public access.

How it would be ruled is a bit of a toss up, however.
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Anonymous Coward, 19 Oct 2018 @ 2:39pm

Re: Over the last month "Gary" has become BIG common law supporter!
I love how you think your conspiracy obsessions make you look good.
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Bamboo Harvester (profile), 19 Oct 2018 @ 2:43pm

Something actually PD?
Disney announces new movie coming out based on Georgia Laws, files copyright....
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murgatroyd (profile), 19 Oct 2018 @ 2:44pm

Oh, great. Because of this, Georgia no longer has any incentive to create new laws! I hope Mr. Malamud is happy.
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Anonymous Coward, 19 Oct 2018 @ 2:50pm

If LexisNexis writes these annotations, and the annotations are law-like, does LexisNexis now have legislative powers in Georgia?
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James Burkhardt (profile), 19 Oct 2018 @ 3:07pm

Re: Re: look out NFPAyou're next
Actually, in a full reading, whatever guidelines they laid down, it becomes more clear the core issue seemed to be that the annotations had the color of law if not the force of law, and therefore needed to be publicly accessible.

While it spends a lot of time discussing the manner in which the annotations are incorporated into law, I think the issue is so complex because they were not officially seen as law.

I think the incorporation by reference situation actually is much simpler, because the legislative intent, that the code is the law, is much clearer, and would simplify the analysis.
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James Burkhardt (profile), 19 Oct 2018 @ 3:10pm

Re:
The rationale is that the annotations are based on legal rulings and similar, and the annotations are officially sanctioned by the legislature in a process much like passing the law themselves. Its a big part of their analysis.

So LexisNexis does not hold the legislative power. It is the actions of the legislature that make them law-like.
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madasahatter (profile), 19 Oct 2018 @ 3:15pm

Re: Re: look out NFPAyou're next
This ruling if carried to its proper logical conclusion says if the law incorporates something the incorporated parts are part of the law. Since the law cannot be copyrighted, the incorporated standards, as part of the law, cannot have a copyright.

The same reason the annotations can be copyrighted applies to standards included by reference is that they integral to understanding and properly applying the law.
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Anonymous Coward, 19 Oct 2018 @ 3:33pm

Re: Re: Re: look out NFPAyou're next
Yeah; but if there's a law that says "all citizens must abide by the 2018 publication of the NEC" then shouldn't it be a requirement that all citizens have access to the referenced publication with no barriers? And if someone makes a copy public so that people can do so, that would fall under obvious fair use, even if copyright still held.
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Bamboo Harvester (profile), 19 Oct 2018 @ 3:33pm

Re: look out NFPAyou're next
Code and Law are different critters.

Violate Code and you'll be fined, jobsite shut down, etc. You can't be jailed over a Code violation. Well, you can, but it gets involved with "attempt to defraud..." legalese.

Violate a Law and you may find yourself on vacation at the Greybar Hotel, all expenses paid...

Also, Code such as NEC are usually "incorporated into" local Code simply by referring to them as the Authority - "Wiring shall be done pursuant to NEC section;paragraph except where Noted".
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Anonymous Coward, 19 Oct 2018 @ 3:34pm

Re: look out NFPAyou're next
Unless the city/states have a license from the nfpa, it's likely that they will all be subject to suits by the nfpa for making the codes available to the whole world. So the nfpa will get a windfall and likely just to continue to collect from everyone for years.
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Anonymous Coward, 19 Oct 2018 @ 3:37pm

Re: Re: Re: look out NFPAyou're next
As others (and I) have pointed out, there's a difference: the annotations are part of the corpus referred to by the courts as "the law" and are generated as part of generating "the law" in Georgia. So they can't be copyrighted.

Works referred to by reference were created by someone else and adopted by the state as law -- so they can hold copyright. HOWEVER, publishing them for public reference would fall under fair use and so isn't copyright infringement.
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Anonymous Coward, 19 Oct 2018 @ 4:11pm

Re: Over the last month you left forever
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Gary (profile), 19 Oct 2018 @ 4:19pm

Re: Over the last month "Gary" has become BIG common law supporter!
Hey - thanks for noticing this!

Because YOU don't *actually* know what common law is, I thought it might be nice to use it Correctly once in a while.

Common Law is the law build upon precedent, rulings and judges. Not some indefensible babble you invoke and run from.

https://en.wikipedia.org/wiki/Common_law
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Adam Douglas, 19 Oct 2018 @ 4:25pm

Re: Re: Re: Re: look out NFPAyou're next
Beware of the Leopard!!!

https://www.goodreads.com/quotes/40705-but-the-plans-were-on-display-on-display-i-eventual ly
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Daniel Charles, 19 Oct 2018 @ 4:33pm

The devil went down to Georgia....
and worked for the lower court.....

https://www.youtube.com/watch?v=tnepPZChA5U
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Thad (profile), 19 Oct 2018 @ 5:45pm

Re: Common Law
No, statutory law.
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ECA (profile), 19 Oct 2018 @ 5:59pm

annotated...
Math book.
Sci book.
History book.
Chemistry?
Civics..
Poetry..
ART BOOKS..
Instruction manuals?
Car repair manuals??

Writing something in a Public domain Book, SHOULD make it public domain.. Thats why you create YOUR OWN book, and charge for it.
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John Smith, 19 Oct 2018 @ 6:31pm

But if copyright doesn't apply to laws, who will apply the law?! Madness, I tell you!
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Paul Brinker, 19 Oct 2018 @ 9:02pm

Re: Re: Re: Re: look out NFPAyou're next
The alternative conclusion is that the works incorporated by reference are copyrights as a whole, but only when you consider the entire work. Each element of the work happens to be a fact, and a fact alone can not be copyrighted.

This leads us to point out that anything incorporated by reference can be included as long as you are only posting the part that was incorporated. IE Section 2 of the electrical engineering code found on page 12 through 14.

A slight problem takes place when an entire work is incorporated by reference. If this was the case I would say that the writer has a strong interest to get paid by the state should the state wish to use his works in its law.

To make things more fun, this all breaks down when a 2nd state finds out the first state has no copyright on the entire electrical code, and can copy that instead of paying for it.
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Paul Brinker, 19 Oct 2018 @ 9:09pm

Re: Re: look out NFPAyou're next
This only works once, the first state to find out that NFPAs entire works as incorporated into the law, are free for public use, all the other states will copy the works.

On top of that the state can use Eminent Domain to force a fair price on the works instead of allowing a lawsuit to continue for ever. Assuming the state does not say "We're a sovern, you cant sue us for something no one knew was incorrect".

The best case is for the state to commission the works of NFPA with an agreement that the state will pay again for the works when they are updated on some annual basis.
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Anonymous Coward, 20 Oct 2018 @ 7:32am

Re: Re: Re: look out NFPAyou're next
And then guess what, there is NO incentive for anyone to update the codes.
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Anonymous Coward, 20 Oct 2018 @ 8:05am

Government does not pay licensing in order to make use of copy right material.
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That One Guy (profile), 20 Oct 2018 @ 8:32am

Re: Re: Re: Re: look out NFPAyou're next
In the same way that no one commissioned to create something(art, music, codes/interpretations of the law) ever feels the need to get paid again for a future commission, sure.

If 'you'll get paid again when you do more work, rather than constantly for doing work once' is enough to drive the one updating the codes off then they deserve to go under, and I'm sure other, less greedy companies/individuals will be more than happy to take their place.
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Bergman (profile), 20 Oct 2018 @ 8:37am

Re: Re: Re: Re: look out NFPAyou're next
The problem there though, is that if a legislature does not write anything down, and a third party writes 100% of the law book, your viewpoint would result in the laws being both something subject to copyright and possible to lock entirely behind a paywall.

That would result in a situation where someone too poor to buy a copy of the laws would be legally barred from knowing what the laws say -- the laws would literally be trade secrets.
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Anonymous Coward, 20 Oct 2018 @ 9:25am

So the Georgia Legislature's plan to sneak in a bill amendment that would let them essentially steal 100s of millions of taxpayers money ALL LEGALLY has fallen flat.
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Anonymous Coward, 20 Oct 2018 @ 9:27am

Re:
No but they're working WITH legislators to embezzle hundreds of millions of dollars of taxpayers money with "margin amendments and interpretations" that wouldn't be public knowldge until AFTER the deed is done and the money isn't in reachable US bank accounts.
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Anonymous Coward, 21 Oct 2018 @ 5:50am

Re: Re: Over the last month "Gary" has become BIG common law supporter!
Is it possible that, some time ago, the court system via common law incorporated the building codes because someone was liable for a mistake or something? Is that how they became part of the law? If so, then does that preclude any copyright claims?
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Anonymous Coward, 21 Oct 2018 @ 10:44am

I wonder if Georgia has copyright or patent upon their method of disenfranchising eligible voters who are not white. Will other states have to pay Georgia royalties upon this Intellectual Property?
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Christenson, 21 Oct 2018 @ 11:17am

Building codes and the law...
It is not the court system that made the secret and pricey standards of the ASTM and NFPA (such as the NEC) part of the law in the form of building codes...

Fact is, it is usually either the legislatures or the executive, often at the state or city level. It works like this: If I want to build a building and sell it to someone, the new building needs a "certificate of occupancy". That comes from demonstrating compliance with the structural, plumbing, and electrical code in effect wherever the building is situated, and generally there is an inspector who checks on things to ensure this is so.

The codes are then typically adopted wholesale by reference from the engineering organisations, which then cry foul when they can't charge for the copies of the codes they developed at significant expense.

However, as noted, *public service* is typically missing from the discussion. It is no longer (if it ever was) true that everyone that needs the codes can afford a $250 or so, typically per year, for a copy.

****
So the codes are *not* common law, which, as noted above, is really the karma, or body of decisions that has come before from the judiciary as to how to interpret the laws in practice when there are questions.

Thus it is that the opinion making OCGA uncopyrightable *is* now part of the common law, and you can expect to see it cited in court briefs about similar subjects. You will also notice all the citations to other decisions within it, and those decisions are also part of the common law.
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KarolusMagnus, 21 Oct 2018 @ 12:02pm

How does LexisNexis feel about this?
So should I expect LN to sue Georgia for letting their annotations out into the public domain?
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ErikJHeels (profile), 22 Oct 2018 @ 7:32am

I wrote about this issue in 1995...
...and we are still litigating it in 2018!

* Who Should Own Citation Systems? (1995-01-01)
Nothing succeeds like access? Debating the merits of a public domain citation system.
http://www.giantpeople.com/13.html
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Anonymous Coward, 22 Oct 2018 @ 10:35am

Re: I wrote about this issue in 1995...
Slowly but surely, I guess...
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