Court Says Posting Georgia's Official Annotated Laws Is Not Fair Use, And Thus Infringing

from the this...-is-a-problem dept

We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.

The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."

It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:

Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.

Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.

On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.

The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use

The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.

In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.

The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.

The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:

Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.

The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."

Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.

Filed Under: carl malamud, copyright, fair use, georgia, laws
Companies: lexisnexis

Federal Court Basically Says It's Okay To Copyright Parts Of Our Laws

from the incorporation-by-reference dept

For many years, we've written about Carl Malamud and his non-profit organization Public.Resource.org, which goes to great lengths to make sure that the law and other government documents are widely available to the public. While he's gotten lots of attention for battling states over their claims to hold a copyright in the law, perhaps his biggest fight has been over the question of whether or not private standards that are "incorporated by reference" into the law, are still covered by copyright. And, unfortunately, the federal district court in Washington DC has just ruled against him, and effectively said it's okay to lock up some important elements of the law with copyright. This is bad news.

Some background: as you probably know, there are tons of standards bodies out there who create various standards. Most techies are quite familiar with various technology standards, developed by various groups. But standards obviously go way beyond just the tech industry. Think: building codes for plumbers and electricians. These are often developed by independent, private bodies. Of course, you may also realize that some of these standards are in the law as well. These are generally known as "incorporated by reference." That's just a fancy way of saying that a private group created a standard and then lawmakers put into the law "this thing we're regulating needs to meet those standards." So, for example, fire codes may be developed by a private body, but then governments say that any building has to meet those standards. Voila: those standards are "incorporated (into the law) by reference."

The question, though, is how accessible are these standards? Many of the standards bodies that create those standards like to sell them. That's often how they make their money. But that seems to be in fairly dire conflict with the idea that the law should be publicly accessible. It's fairly difficult to argue that the rule of law is paramount when you can't even see the law without having to buy a bunch of expensive standards. To deal with this, many regulators and standards bodies have come up with awful hedges -- which basically say that any such standard incorporated by reference must be "available to the public," but they allow that availability to be insanely limited. So, for example, the EPA basically says, sure, you can see all of the standards, if you trek to DC and go to a special reading room (or a few other limited places):

Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 11 CFR part 51. To enforce any edition other than that specified in this section, the EPA must publish notice of change in the Federal Register and the material must be available to the public. All approved material is available for inspection at the EPA Docket Center, Public Reading Room, EPA WJC West, Room 3334, 1301 Constitution Ave. NW., Washington, DC, telephone number 202-566-1744, and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

And, of course, even then, there are serious restrictions on what you can do. Many of the reading rooms are "read only." You can read them, but you can't print or download electronic versions. As you can imagine, that can be fairly useless. Imagine you're trying to build a house, and every time you want to check if something is up to code, you have to go to DC to a special reading room, find the standard, check the details, but you can't print it out or download an electronic version.

You'd probably think that's a pretty silly way to have laws.

At least, that seems to be what Malamud thought, so he bought copies of a whole bunch of these standards, scanned them, and put them online, arguing that once they're incorporated by reference into the law, they are a part of the law and thus copyright shouldn't apply. The big standards bodies, including the American Society for Testing and Materials (ASTM), the National Fire Protection Association (NFPA), the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), the American Educational Research Association (AERA), the American Psychological Association (APA), and the National Council on Measurement in Education (NCME) sued Public.Resource.org for copyright infringement (and for some of them, trademark infringement). The plaintiffs were lumped into two groups -- the ASTM group (covering the first three groups listed above, which filed for copyright and trademark infringement) and the AERA group (covering the last three groups, which filed for just copyright infringement).

Public Resource made a number of arguments for why the standards bodies shouldn't win, but the court doesn't buy them. It's not impressed by the idea that since many people worked on these standards, the bodies don't really hold the copyrights. Malamud also argued that there's no valid copyright in standards, because there's nothing copyrightable in a bunch of standards, which are nothing more than "methods or systems" -- comparing it to the famous Feist case that said a telephone book isn't copyrightable, because it's just a collection of facts. And, of course, "methods and systems" are not copyrightable material under Section 102(b) of copyright law (this is the same issue that was debated in the Oracle/Google case over whether or not APIs were covered by copyright).

Unfortunately, the court doesn't see it that way for standards. It notes that even under Feist, standards meet the "extremely low" bar of creativity to be covered by copyright. And, it completely disregards the 102(b) argument as a misreading of the law, saying that it only bars trying to copyright the system or method itself, "not the written work explaining or describing that method." I can see that argument, though I'm still left wondering who actually thinks that copyright is the necessary incentive to create a building code. But, unfortunately, that's not quite how copyright law works these days.

The bigger issue is over what happens to the copyright once it's incorporated by reference into the law. Malamud's lawyers argued that it should be considered public domain. The court says... sorry, nope. As you surely know, copyright law says that works made by the federal government are not subject to copyright and are in the public domain. But that only applies to works actually created by the government. It has long been recognized that works created by others, and then assigned to the US government allow the government to retain the copyright. We can argue that this is dumb and bad policy (because it is), but it's pretty well-recognized. Here, Malamud's lawyers argued that even so, Congress intended things directly referenced into the law to be in the public domain. But the court basically says that Congress had a chance to weigh in on this and didn't... so, no dice:

Congress was well aware of the potential copyright issue posed by materials incorporated by reference when it crafted Section 105 in 1976. Ten years earlier, Congress had extended to federal agencies the authority to incorporate private works by reference into federal regulation.... However, in the Copyright Act of 1976, Congress made no mention of these incorporated works in § 105 (no copyright for “any work of the United States Government”) or any other section. As the House Report quoted above indicates, Congress already carefully weighed the competing policy goals of making incorporated works publicly available while also preserving the incentives and protections granted by copyright, and it weighed in favor of preserving the copyright system....

However, recognizing the importance of public access to works incorporated by reference into federal regulations, Congress still requires that such works be “reasonably available.” ... Under current federal regulations issued by the Office of the Federal Register in 1982, a privately authored work may be incorporated by reference into an agency’s regulation if it is “reasonably available,” including availability in hard copy at the OFR and/or the incorporating agency.... Thirteen years later, Congress passed the National Technology Transfer and Advancement Act of 1995 (“NTTAA”) which directed all federal agencies to use privately developed technical voluntary consensus standards.... Thus, Congress initially authorized agencies to incorporate works by reference, then excluded these incorporated works from § 105 of the Copyright Act, and, nearly twenty years later, specifically directed agencies to incorporate private works by reference. From 1966 through the present, Congress has remained silent on the question of whether privately authored standards and other works would lose copyright protection upon incorporation by reference. If Congress intended to revoke the copyrights of such standards when it passed the NTTAA, or any time before or since, it surely would have done so expressly.

Again, based on the legislative history, perhaps that's a reasonable, if unfortunate, reading of the law. And it's something that Congress should fix, but almost certainly won't.

But, taking a step back from all of this, there's still the problem that it's crazy. The idea that the law itself should be locked up under copyright is immensely problematic for a whole host of other reasons. And Malamud and his lawyers pointed this out, arguing that there's a due process issue here, where using copyright to block people from accessing the law deprives them of their due process. But, the court isn't impressed, basically saying other court opinions haven't bought this kind of argument, so it won't either. And, further, the court seems to feel that those limited reading rooms or fee-based copies are enough access:

... there is no evidence here that anyone has been denied access to the standards by the ASTM Plaintiffs or AERA Plaintiffs. Instead, Defendant simply argues that the public should be granted more expansive access.

Another argument is that once incorporated by reference, under the merger doctrine, the "law" and the creative expression are so tightly intertwined (i.e., "merged") that the law is now factual and thus not subject to copyright law. The court says "eh, we're not going to look at that, because it doesn't matter either way."

The court declines to resolve this merger doctrine issue, since under either approach, the standards maintain copyright protection.

After all that, we finally get to the fair use argument. Public.Resource argues that what it's done isn't copyright infringement, even if the work is covered by copyright, thanks to fair use. The court does a four factor analysis... and says "no fair use." On the big question of whether or not it's transformative, Public.Resource tried to argue that making the works more accessible (including turning them into digital versions that could be searched) was transformative. The ruling in the Google Book scanning case would seem to support that, but the court says no, because it doesn't see turning a written work into a searchable HTML file as enough of a transformation.

While it appears Defendant may enable blind individuals, like all other individuals, to access the standards at no cost, they still may have to take additional steps like OCR processing or converting to a different file type, as well as using additional screen reader programs in order to access the standards. There is no evidence that this would not be possible with Plaintiffs’ PDFs or by scanning Plaintiffs’ hard copy standards. In Defendant’s view, taking the first step or two towards making the standards entirely accessible to those with visual impairments is enough to have transformed the standards. This attempts to stretch logic, and certainly the doctrine of fair use, too far. Defendant has not offered a sufficiently new purpose to render the use transformative, and this weighs against a finding of fair use.

Within this analysis, I'd argue that the court goes way too far in dismissing the comparisons to the Google Books ruling and the ruling in the Swatch case that said that posting full transcripts of analyst calls can be fair use. The court here seems overly nitpicky, saying that Google Books doesn't count because it doesn't show full works, and Swatch (which does show full works) doesn't count because that work wasn't available in any other way (though I'm not sure what that really has to do with the fair use analysis).

The court also says that "the nature" of the work goes against Malamud, which surprises me. You'd think that the fact that these works are a part of the law would push it the other way. But, instead, the court misreads the nature of the Constitution to misunderstand what the framers meant by the word "science." This is unfortunate:

Defendant argues that Plaintiffs’ standards are “factual,” both because they are highly technical and because they are “the law.” However, the Constitution explicitly states that copyright exists to “advance the progress of science and the useful arts.” ... That Plaintiffs’ works involve technical scientific concepts and guidelines does not push it away from the core of intended copyright protection, but actually brings it closer. Plaintiffs’ standards are vital to the advancement of scientific progress in the U.S. and exactly the type of expressive work that warrants full protection under the Constitution and the Copyright Act.

This is just wrong. At the time the Constitution was written "science" had an entirely different meaning. It meant learning. That's entirely different than something that is mandated by law.

On the third factor of the "amount" of the work copied, obviously here it's all of it, and the court says that there is not "a single case" that supports the Defendant's view that because the entire standards were referenced into law, it's fair use. But that's also wrong. Again, the Google book scanning and the Hathitrust rulings both made it clear that using the whole work was fine because "it is literally necessary to achieve" the purpose they were looking to achieve.

While I found the court's reasoning on the copyrightability of the standards more persuasive, the fair use analysis seems incredibly weak -- and hopefully the appeals court will overturn it.

The only "win" for Malamud was that the argument for contributory infringement failed, but for fairly weak reasons, leaving it open to the possibility that a more complete attempt to make that claim could work.

Finally, the court also says that for the ASME plaintiffs, what Malamud did is also trademark infringement. I won't even bother getting into why, but this result was more or less expected given the results of the copyright part of the case.

The court then grants an injunction, basically ordering Malamud to delete all these standards from the internet. It includes a fairly bizarre determination of whether or not the public will be harmed by this:

Additionally, the public must not be disserved by the issuance of an injunction. Here, the public interest is served by the policy interests that underlie the Copyright Act itself, namely the protection of financial incentives for the continued creation of valuable works, and the continued value in maintaining the public-private system in place in the U.S. to ensure continued development of technical standards.

Did you get that ridiculous sleight of hand? The public is served by no longer having access to the law because it's better for some private organizations to get rich off of the standards that are a part of the law, or else such standards might not be developed. Huh?

I'm guessing that this case will be appealed, and hopefully the appeals court is more receptive to the fair use arguments. In the meantime, though, this seems like a pretty big loss for those who believe not just in the rule of law, but the idea that the law ought to be accessible to the public if it's to be respected.

Filed Under: building codes, carl malamud, copyright, copyrighting the law, incorporated by reference, rule of law, standards, standards bodies, the law
Companies: aera, asme, public.resource.org

Standards Body Whines That People Who Want Free Access To The Law Probably Also Want 'Free Sex'

from the bad-ansi,-bad dept

You would think that "the law" is obviously part of the public domain. It seems particularly crazy to think that any part of the law itself might be covered by copyright, or (worse) locked up behind some sort of paywall where you cannot read it. Carl Malamud has spent many years working to make sure the law is freely accessible... and he's been sued a bunch of times and is still in the middle of many lawsuits, including one from the State of Georgia for publishing its official annotated code (the state claims the annotations are covered by copyright).

But there's another area that he's fought over for many years: the idea that standards that are "incorporated by reference" into the law should also be public. The issue is that many lawmakers, when creating regulations will often cite private industry "standards" as part of the regulations. So, things like building codes may cite standards for, say, sheet metal and air conditioning that were put together by the Sheet Metal and Air Conditioning Contractors National Association (SMACNA), and say that buildings need to follow SMACNA's standards. And those standards may be great -- but if you can't actually read the standards, how can you obey the law. At one point SMACNA went after Malamud for publishing its standards. And while they eventually backed down, others are still in court against Malamud -- including the American Society for Testing & Materials (ASTM), whose case against Malamud is set to go to trial in the fall.

In the midst of all of this, various standards making bodies, along with the American National Standards Institute (ANSI), have been working over time to get the American Bar Association to adopt a proposal that limits publication of standards that are incorporated by reference. ANSI has pushed for a solution it prefers called "reasonable availability," in which the standard-makers decide by themselves how best to make the standards "available." ANSI, for example, hosts a bunch of incorporated by reference standards on its website -- but the only way to read them is to install a special kind of DRM (Windows and Mac only) that makes the documents purely read only. You are not allowed to save them. You are not allowed to download them permanently. You are not allowed to print them. And it's not all standards that are incorporated by reference. Why do they do this? Well, most of them sell their standards to professionals who need to buy them, and they don't want to give up on that revenue source (especially once those standards are incorporated by reference because at that point they become mandatory).

Either way, there was an attempt to push through a bad proposal at the ABA, getting it to take an official stance on standards that were incorporated by reference, but the first attempt was denied when various parts of the ABA pointed out that only a small group had worked on the issue. A larger task force was formed, but oddly, that task force was amazingly one-sided, including a number of people connected to ANSI or its supporters (including its former chair, Oliver Smoot, and its General Counsel, Patricia Griffin). Malamud asked multiple sections of the ABA if he could be a part of the working group and was denied. Not surprisingly, the final recommendation, which the ABA is about to consider next month, does not recognize that standards incorporated by reference should be widely and freely available, since they are the law. Instead, it takes a much more restrictive approach, whereby such standards would need to be made available (an improvement from the current situation), but that availability can still be in a very restrictive and locked down manner (such as with DRM and limitations).

The fact that it takes a small step in the right direction already has ANSI upset, and it's whining to its members asking them to tell the ABA not to support this proposal, dropping all sorts of FUD about how it will kill off various standards bodies, and complaining that the process by which this proposal was created was "closed" (leaving aside that ANSI and its friends made up a decent portion of the folks on the working group). Malamud has now sent a massive book detailing all of the problems with the proposal and noting that supporters of it are trying to rush it through, potentially looking to influence some of the lawsuits that he's currently involved in (such as the one about to go to trial). Some task force members raised the concern that it seems weird for the ABA to stake out a position on an issue that is about to be resolved by the courts. Either way, somewhat amazingly, both Malamud and ANSI agree that they don't want the ABA to accept the current proposal -- but for wildly different reasons.

Malamud's packet is impressive in the details and evidence that it presents. But his major complaint is that the ABA is making a huge mistake in trying to "balance" the interests of standards bodies that get money from locked up standards and the public. There's no need for balance here. General common sense says the public should win here and the law itself should be public and freely accessible. But that's not how the task force looked at this:

Think for a moment about the interests that are being “reconciled.” On the one side are the proprietary interests of a few nonprofit organizations, organizations that eagerly seek to have some of their standards incorporated into law, and also profit greatly from the sale of numerous products, such as the sale of non-mandatory standards, training, and certification. Nonprofit organizations such as ANSI have done quite well under the current system, paying million-dollar salaries to their executives and receiving numerous government subsidies, plus the all-important market positioning they get from being an official provider of an important segment of federal law. This is an enviable market position for a nonprofit, and they have profited handsomely from that position.

What is being balanced against those “proprietary interests” are the rights of the American people to read and speak the law. Joe S. Bhatia, the president of ANSI, put it well when he stated clearly that “a standard that has been incorporated by reference does have the force of law, and it should be available.” These standards are integral to the regulations, no different than any other edict of government. Public safety laws are too important to be carved out as a special category of edict of government, a category subject to arbitrary limitations on use.

The way that “balance” was struck is what disturbs those of us who wished to participate. The task force is asking the ABA House of Delegates to endorse severe restrictions on how citizens can access regulations, in the form of “read-only” documents on the Internet. The term “readonly” is a term that doesn’t make any sense to those of us who work on the Internet. What are being proposed are a series of licensing restrictions created by a click-through terms of use agreement, coupled with technical restrictions enforced by “Digital Rights Management” (DRM) technical measures. But the law is not a Hollywood movie and it is not a Tom Clancy novel. The law is special in our democracy, or in any society that observes the rule of law. The law belongs to the people and edicts of government are not subject to copyright under long-standing doctrines of common law and the clear and unambiguous policy of the U.S. Copyright Office.

And really, the principle here is pretty clear and shouldn't involve that much debate. If it's included as part of the law, it needs to be widely and freely available.

For those of us in the American Bar Association, the concept of “read only” flies directly against the work practices of members of the bar who must use the law to do their jobs. Lawyers do not simply read the law, they cite the law and copy it, they publish extracts in documents such as briefs, treatises, and newsletters. If we entertain the notion that a category of our law requires a license in order to repeat those laws—and that is precisely the position today of ANSI and its fellow SDOs—the bar will be faced with a situation where permission to use the law may be granted only after the extraction of unreasonable rents and a request for permission, which may be arbitrarily granted or refused. This is not a theoretical situation; it is the current stance of the organizations that drafted this resolution and they are proposing that Congress codify those restrictions.

Most disturbing in the resolution that the ABA is being asked to endorse is the idea that the right to speak the law—to post it on the Internet in a transformative fashion that allows others to use it more effectively—belongs to a single private party, and that private party may require a license before others are permitted to work with the material. Just imagine if John B. West had needed a license before including court opinions in his National Reporter System, an innovation that became central to the practice of law in the United States. Allowing only a single party, or those to whom they arbitrarily grant a license, to control access to primary legal materials deliberately retards innovation in order to maximize revenue through a monopoly over crucial components of federal public safety law. Putting the brakes on innovation for presentation of the law not only hurts democracy, it hurts the legal profession, depriving lawyers of better tools and services.

The packet that Malamud put together also includes some of the emails that were sent around as part of the working group's deliberations, including one rather incredible one in which ANSI board member Dan Bart of Valley View Corporation, completely mocks the idea that standards that are part of the law should be available for free -- saying that "some people are still clamoring for free beer and free sex too." Apparently, this individual feels everyone should pay for sex. Even ignoring what one hopes is an inadvertent slip up in logical arguments, the email completely ignores the issue. People aren't just asking for random stuff for free -- they're asking for the law to be freely available to the public. If you don't want that to happen, don't get your standard included in the law.

If you go through the emails included in the packet there are even more details, including the co-chair of the ABA's SciTech Technical Standardization Committee stepping down for being effectively ignored during the process of deciding on the resolution and not allowed to join the working group.

The whole thing is a mess. It's not even clear why the ABA should be considering this point at all. And, if it must consider it, why would it not support the most obvious conclusion: if it's a part of the law, it's part of the law and needs to be widely and freely available, not locked down by DRM.

Filed Under: carl malamud, dan bart, incorporated by reference, joe bhatia, law, public access, standards
Companies: aba, ansi

Public Domain Citation Book, Baby Blue, Renamed To Indigo Book, Following Harvard Law Review Threats

from the too-bad dept

We've been covering the ridiculous saga of the Harvard Law Review Association and its pricey legal threats to Carl Malamud for daring to publish a public domain set of legal citations. As a bit of background, legal citations tend to follow a standard found in the Bluebook, which is put out by the Harvard Law Review Association (which, confusingly, is actually made up of four top law schools). Many have criticized the Bluebook heavily, including appeals court judge Richard Posner who has ripped into the Bluebook, and suggested a much simpler form of legal citations, leading (in part) to something called the Maroonbook, from the University of Chicago Law Review. And, yet, the Bluebook has still mostly remained atop the heap, generating a ton of money for the law schools that back it. A few years ago, the Bluebook ran into some intellectual property issues, when Professor Frank Bennett sought to build support for the Bluebook into his open source citation tool, Zotero, and the Harvard Law Review Association obnoxiously said no, claiming copyright over citations (which seems... questionable).

After all of this, law professor Chris Sprigman and public records warrior Carl Malamud realized that an earlier version of the Bluebook had fallen into the public domain. They then announced they would use that public domain version as a base, and then build their own competing citation manual, called Baby Blue. On Christmas Eve, Harvard Law Review was so freaked out by some tweets by Malamud implying that Baby Blue was ready to release, that it had a high priced lawyer dash off a threat letter warning him not to release the book.

He did so anyway, and tons of law students (including those at Harvard Law), signed onto letters in support of Baby Blue. But, in the end, legal fights are draining -- mentally, physically... and monetarily. And thus, Malamud and Sprigman have somewhat thrown in the towel, noting that since the Harvard Law Review Association seems so worked up about the use of the word "blue," they will rename their book as the Indigo Book. You can see it here.

You and I have discussed this several times. Professor Sprigman and I believe strongly that there is absolutely zero chance of confusion, dilution, or any other harm that trademark aims to prevent in our use of the title Baby Blue. Nobody would mistake the work we’ve created with The Bluebook. This is not a trademark issue.

Nevertheless, Professor Sprigman and I, as we have repeatedly told you and your paid outside counsel, have absolutely no interest in litigation on this issue. We will defend ourselves in court if necessary, but we feel this would be a waste of your time and would quickly become a stain on the reputation of the Harvard Law Review. That you would not drop the threat of litigation in our prior conversations has baffled me, and the current renewed threats are very disturbing.

Even though your legal threats are baseless and, frankly, amount to little more than an attempt to bully into submission lawful competition, Professor Sprigman and I have decided to change the name, taking into account your preferences. In particular, you demanded that the word “Blue” not be present in the title or the subtitle. The Indigo Book is now on our web site. I trust this will put an end to this.

It's always at least a little bit disappointing when people feel compelled to change their plans due to what appear to be baseless legal threats, and it's unclear what the Harvard Law Review Association will think of the Indigo Book, but one hopes that the folks at the HLRA have at least started to realize how ridiculous they look in all of this.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, legal citations
Companies: harvard, harvard law review association

Law Students Line Up Behind 'Baby Blue' -- Will Harvard Law Review Sue?

from the law-student-on-law-student-legal-action dept

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It's true that the Harvard Law Review Association has published the famous "Bluebook" of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish "Baby Blue" -- a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

It took another month and a half or so, but Baby Blue is now available -- and it appears that law students are lining up behind it, rather than the Bluebook. A bunch of folks at Yale Law School and NYU Law School have come out in support of Baby Blue. It appears other law schools are jumping on board as well -- including Harvard Law School, Stanford and more.

Meanwhile, law professor David Post has provided a bit of free legal advice for the Harvard Law Review:

Here’s a bit of free legal advice: If you want to assert copyright protection over something, don’t call it “A Uniform System of Citation” —  because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn’t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now... everyone gets to wait and see what the Harvard Law Review Association decides to do.

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, citations, copyright, legal citations, public domain
Companies: harvard, harvard law review, harvard law review association, nyu, stanford, yale

Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide

from the don't-you-guys-have-something-better-to-do? dept

In the fall of 2014, we wrote about a plan by public documents guru Carl Malamud and law professor Chris Sprigman, to create a public domain book for legal citations (stay with me, this isn't as boring as it sounds!). For decades, the "standard" for legal citations has been "the Bluebook" put out by Harvard Law Review, and technically owned by four top law schools. Harvard Law Review insists that this standard of how people can cite stuff in legal documents is covered by copyright. This seems nuts for a variety of reasons. A citation standard is just an method for how to cite stuff. That shouldn't be copyrightable. But the issue has created ridiculous flare-ups over the years, with the fight between the Bluebook and the open source citation tool Zotero representing just one ridiculous example.

In looking over all of this, Sprigman and Malamud realized that the folks behind the Bluebook had failed to renew the copyright properly on the 10th edition of the book, which was published in 1958, meaning that that version of the book was in the public domain. The current version is the 19th edition, but there is plenty of overlap from that earlier version. Given that, Malamud and Sprigman announced plans to make an alternative to the Bluebook called Baby Blue, which would make use of the public domain material from 1958 (and, I'd assume, some of their own updates -- including, perhaps, citations that it appears the Bluebook copied from others).

There hadn't been much said publicly in the 14 months or so since that announcement, but last week, Malamud started tweeting out some evidence that the book was nearing completion:

Laying BB 20 and Baby Blue neck to neck. Drinking whiskey while wrestling the future of legal citation to ground. pic.twitter.com/F2IRR4gL9y

— Carl Malamud (@carlmalamud) December 22, 2015

He even discussed what public domain (of course) image he might use for the cover. I like the following option the best:

Judges selected this 1869 chromolithograph as “Baby Blue of the Year 2015” https://t.co/b2qz0NNnhh L. Prang & Co. pic.twitter.com/yDkEnzkUuP

— Carl Malamud (@carlmalamud) December 23, 2015

Apparently, this sent the Harvard Law Review into a bit of a tizzy, and they made their lawyers at the big, respectable law firm of Ropes & Gray come into the office on Christmas Eve to dash off this ridiculous threat letter to Malamud and Sprigman, demanding that they not move forward with releasing Baby Blue.

First, they ignore all the facts concerning how an earlier version fell into the public domain (and the ridiculousness of claiming copyright on citations) and again allege it will be infringing:

I write concerning Mr. Malamud’s recent Twitter postings, including several in the last few days, disclosing your imminent release of an “implementation of the Bluebook’s Uniform System of Citation” called “BabyBlue,” possibly as soon as December 31, 2015. Based on the description of “BabyBlue” in these and other postings, Prof. Sprigman’s November 25, 2015 interview in the NYU Journal of Intellectual Property & Entertainment Law, and earlier correspondence from each of you, we believe that “BabyBlue” may include content identical or substantially similar to content or other aspects of The Bluebook that constitute original works of authorship protected by copyright, and which are covered by various United States copyright registrations.

For the reasons set forth in our previous letters to Mr. Malamud dated July 2013 and May 2014 (copies of which are attached), my client has been and remains concerned that the publication and promotion of such a work may infringe the Reviews’ copyright rights in The Bluebook and The Bluebook Online, and may cause substantial, irreparable harm to the Reviews and their rights and interests in those works.

And then they go on, in even more of a huff, claiming that the name BabyBlue would be trademark infringement, and warn them that they cannot make use of the word "blue" anywhere. Apparently, Harvard Law Review thinks it owns the word "blue" when applied to legal citations.

On a related issue, it appears from the NYU interview and the Twitter postings – including a photograph attached to one posting – that you intend to use the title “BabyBlue,” and the subtitle “A free, Creative Commons-licensed implementation of the Uniform System of Citation” in the version of your work released to the public. In addition, the pages shown in that photo include several explicit references to The Bluebook.

Please be advised that the Reviews are the collective owners of the registered trademarks THE BLUEBOOK (U.S. Reg. No. 3,756,727), THE BLUEBOOK ONLINE (U.S. Reg. No. 3,748,511), and THE BLUEBOOK A UNIFORM SYSTEM OF CITATION (U.S. Reg. No. 3,886,986) (collectively, the “BLUEBOOK Marks”). Given these rights, it is our client’s position that the title “BabyBlue,” or any title consisting of or comprising the word “Blue,” when used on or in connection with your work, would so resemble the BLUEBOOK Marks as to be likely, to cause confusion, mistake, and/or deception (including over whether “BabyBlue” was associated with or sponsored or approved by the Reviews), to the considerable detriment of the Reviews and in violation of their rights under the federal Lanham Act and state law. The same is true for the subtitle, which includes a portion of one of the registered BLUEBOOK Marks, and which suggests that “BabyBlue” is a “licensed implementation” of The Bluebook (which it is not). Likewise, several references to The Bluebook shown in the photo could reinforce the false and misleading impression that your work was associated with or approved by the Reviews.

Accordingly, and to avoid any risk of consumer confusion, my client respectfully demands that you agree (i) not to use the title or name “BabyBlue,” or any other title or name including the word “blue,” for your work, and (ii) not to include any other statement, phrase, word, term, name, symbol, device, subtitle, statement, or image in your work, or in the advertising or promotion of that work, that may be likely to cause confusion, mistake, or deception as to the source of “BabyBlue” or as to its affiliation, connection, or association with, or sponsorship or approval by, the Reviews.

Touchy, touchy. Harvard Law Review seems really, really worried that they might face some public domain competition, huh?

Filed Under: baby blue, bluebook, carl malamud, chris sprigman, copyright, crybabies, culture, harvard law review, public domain
Companies: harvard

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.

Filed Under: annotated code, carl malamud, copyright, copyright misuse, fair use, georgia, law
Companies: public.resource.org

Carl Malamud Asks YouTube To Institute Three Strikes Policy For Those Who Abuse Takedowns

from the a-potential-solution dept

We write frequently about those who abuse the DMCA either directly for the sake of censorship or, more commonly, because some are in such a rush to take down anything and everything that they don't bother (or care) to check to see if what they're taking down is actually infringing. The latter, while common, could potentially expose those issuing the takedowns to serious legal liability, though the courts are still figuring out to what extent.

Last week, we wrote about Boston public television station WGBH issuing a bogus takedown on some public domain (government created) video that Carl Malamud had uploaded to YouTube. That doesn't look like an automated takedown, but rather someone working for WGBH's legal team who just decided that anything with "American Experience" in a title must be infringing. Malamud has now published the letter that he sent YouTube, about the whole situation. It includes some more details concerning the insulting manner in which WGBH's legal team, Susan Kantrowitz and Eric Brass, handled the situation, including Brass telling Malamud that this wasn't a big deal because deleting this "particular film" was not that important.

Meanwhile, I finally reached the WGBH legal department. Susan L. Kantrowitz, General Counsel, wrote to me that “It is highly unusual for Amex to be in a title and not be one of our shows” and they would “address it on Monday.” Eric Brass, Corporate Counsel, wrote that “the take down request very well may have been an error, but given that it is late on a Friday afternoon in August, I may not be able to get back to you (or YouTube) until Monday.” He then wrote me back and indicated that while perhaps my YouTube account was important, this “particular film” was certainly not. I spoke to him on the phone and he repeated that no harm had been done, but and that after he completed his investigation he would,“follow up with something in writing that might be helpful for you if a question arises down the road about the take down.”

I want to stress that the timing of this takedown was not mine, it was instigated by WGBH and it was done deliberately as a formal legal action. Mr. Brass seemed quite peeved that I was upset, even though I was just minding my own business on the Internet when some hooligans from Boston came over and smacked me for no reason at all, then left for a weekend at the Cape.

The process of creating a copyright strike is not a casual one. WGBH had to go through several screens to identify the video, fill out their contact information, and checked numerous boxes indicating that they understood this was the beginning of a legal process, then signed a statement indicating that all statements were true and that they were in fact the true and correct owners of that film or portions of that film. In order to respond to that legal accusation, I had to go through a similar process of swearing under oath and accepting a court’s jurisdiction for my counter-claim.

Because of all of this, Malamud has suggested that YouTube institute a similar reverse three strikes policy for those who abuse the DMCA takedown process:

I believe that incorrectly posting a video that is under copyright is in fact worthy of a copyright strike. However, I think the opposite of that should be true. WGBH committed a copyright foul and should be prohibited from having the capability to take another user’s films down for a six-month period. If they commit 3 copyright fouls, their account should be revoked. WGBH personnel should be required to go to copyright school so that they fully understand their responsibilities under the law.

Given the blithe and uncaring attitude of WGBH legal staff, they should also be required to undergo copyright school. Their blase attitude was not impressive, and I can just imagine the reaction of WGBH if somebody had improperly taken down one of their media properties would not have been nearly so casual.

The idea of a reverse three strikes policy is not a new one. We first wrote about it back in 2008. Unfortunately, under the current wording of the DMCA, it would be very difficult to do it properly, but it does seem worth considering, considering just how frequency such a power is abused.

Filed Under: abuse, carl malamud, censorship, copyright, copyright school, dmca, takedowns, three strikes
Companies: wgbh, youtube

Boston Public Broadcaster WGBH Files Bogus DMCA Notice On Public Domain Video Uploaded By Carl Malamud

from the nice-work,-geniuses dept

It's amazing the kind of trouble that Carl Malamud ends up in thanks to people not understanding copyright law. The latest is that he was alerted to the fact that YouTube had taken down a video that he had uploaded, due to a copyright claim from WGBH, a public television station in Boston. The video had nothing to do with WGBH at all. It's called "Energy -- The American Experience" and was created by the US Dept. of Energy in 1974 and is quite clearly in the public domain as a government creation (and in case you're doubting it, the federal government itself lists the video as "cleared for TV."

WGBH, on the other hand, has nothing whatsoever to do with that video. It appears that some clueless individual at WGBH went hunting for any videos having to do with the PBS show WGBH produces, called American Experience and just assumed that based on the title, the public domain video that Malamud uploaded, was infringing. Because that's the level of "investigation" that apparently the censorious folks at WGBH do when looking to issue takedown notices.

Malamud reached out to WGBH and apparently the folks there were most unhelpful. The station's general counsel refused to apologize and simply told Carl that since "American Experience" was "unusual" to be in the title, it was okay for them to issue a bogus DMCA notice. Another lawyer , Eric Brass, told Malamud that they wouldn't be able to do anything about it until next week.

Thankfully, someone at YouTube found out about all of this and restored the video so you can watch it: The video is also available at the Internet Archive.

While some may argue this is no big deal because by making noise about this, Malamud was able to get the video reinstated, that's ridiculous. WGBH is a public television station that claims in its mission statement that its "commitments" include:

• Foster an informed and active citizenry
• Make knowledge and the creative life of the arts, sciences, and humanities available to the widest possible public
• Improve, for all people, access to public media

I'm curious how issuing bogus copyright takedowns on public domain material matches with any of those "commitments." Hell, why is such a public television station worried about so-called "copyright infringement" in the first place?

And, as Malamud notes, this little "accident" wasted the time of a bunch of people, and put his own YouTube channel at risk, since it initially counted as a "strike" against him. WGBH owes Malamud not just an apology, but an explanation for why this happened and what the station will do to prevent it from happening again.

Filed Under: american experience, carl malamud, contentid, dmca, public broadcasting, public domain, takedowns
Companies: wgbh, youtube

Even If The State Of Georgia Can Copyright Legal Annotations, Should It?

from the rethinking dept

Last week, we wrote about the fact that the State of Georgia is suing Carl Malamud for posting PDFs of the Official Code of Georgia Annotated, and sending them around. I've been discussing this with a number of lawyers and other experts over the weekend and have to say that I made a significant error in the original post, which I apologize for. I said that courts frequently rely on the annotations of the law, thus effectively making them a part of the law. This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that's no excuse. I should have checked it out and I did not.

The situation is, admittedly, more complicated. I still believe that the State of Georgia is incorrect both legally and morally in deciding to go down this path, but it is at least slightly more nuanced than the original article suggested, so let's dig in and explore the thinking. The state of Georgia hired LexisNexis to create these annotations, and LexisNexis then assigns the copyright that it receives on those annotations over to the state of Georgia. Part of the deal between Georgia and LexisNexis is that LexisNexis does the work and the state gets the copyright, but then LexisNexis gets to host the "official" copies of the laws of the state, while selling that annotated version (in both digital and paper versions). The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees.

The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright. There is some creative choice in selecting what to cover and how to cover it, though significant parts of it are factual (names of cases and whatnot). As some pointed out, LexisNexis competitor WestLaw also offers its own annotated code of the state and sells it itself, and pretty much everyone is comfortable with the copyright there.

So, what's different here? Well, for one, part of the deal with LexisNexis is that after writing the work, the company transfers the copyright to the state itself. Some have pointed to the fact that under federal copyright law the federal government cannot get copyright on works of its own creation, but that does not really apply here in two separate ways. First, there's some dispute over whether or not those same rules apply to state governments as well -- with many arguing that without it being explicit, states can copyright their own creative works. The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright. And, that's clearly the situation here.

So, yes, it's reasonable to argue that the original annotations should and did receive copyright protection. And it's also reasonable to argue that the state technically still has control over that copyright upon assignment by LexisNexis. From there, however, the legal issues get a bit more cloudy. The state of Georgia still does call the resulting publication the "Official Code of Georgia Annotated." And at the very least, at that point, you have to wonder why any aspect of the "official" laws of Georgia should be covered by copyright. Indeed, as LexisNexis points out on its own site, this "copyright" covered version of the law is "essential" to understanding the law and includes "guidance from the Georgia Code Commission."

The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme

Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia's construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:

Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.

In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an "edict of government," as the US Copyright Office has declared such to be not copyrightable "for reasons of public policy."

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

Given how the state of Georiga touts the OCGA as being "essential" and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the "Official Code of Georgia Annotated" is an "edict of government" and thus "not copyrightable for reasons of public policy."

Even if the courts somehow disagree with that, it would seem that Malamud also has a reasonably strong argument for fair use (though it's not a slam dunk -- but fair use is almost never a complete slam dunk). The "purpose and character" of the use and "the nature of the copyrighted work" would likely lean strongly towards fair use, and I would argue that while the last two factors may lean against fair use, the overwhelming nature of the first two should outweigh that when looked at as a whole. If you recognize that the purpose and character is to "let Georgians understand their own law," then the fact that Malamud released all of it should be seen as appropriate and reasonable, rather than excessive.

Finally, let's take this a step further and say that even if the copyright is legit and that this somehow isn't fair use... there remains a pretty essential question: is this appropriate for Georgia to act this way? The only "public benefit" argument that Georgia has on its side is that this current arrangement with LexisNexis saves taxpayer money, because the state doesn't need to pay to create annotated state codes. But that assumes that the state needs to pay to create annotated code. It's not clear that it does. WestLaw creates its own, and it seems likely that LexisNexis would continue to create its own as well should the state end this particular arrangement. If it's arguing that those wouldn't be the "official" ones, then there's a point there, but a minor one. First, this actually undermines the state's argument somewhat, in making it clear that it thinks the annotated code is really important in understanding the law. If that's true, then it's totally reasonable to spend taxpayer money on it -- just as they spend taxpayer money in paying the legislators who write the code, because that's exactly what taxpayer money is for.

And then there's this simple point: if the state of Georgia really believes this annotated code is so important, then it has a moral imperative to make it freely and widely available, rather than lock it up with copyright, such that only big law firms have a copy. It is essentially setting up a system by which only the lawyers are allowed to fully understand the law, and that's no way to run a government "for the people." That it has decided to not only lock up this code, but then to attack Carl Malamud by falsely claiming he's looking to "control access" to these annotations and to quote him totally out of context in claiming that he's doing a form of "terrorism," is just sickening. If the State of Georgia believes in having an informed public, this whole lawsuit is ridiculous, both from a legal and moral standpoint.

Filed Under: annotations, carl malamud, copyright, edicts, georgia, informed public, law
Companies: lexisnexis