Supreme Court To Review Whether Or Not You Can Copyright State Laws

from the please-don't-fuck-this-up dept

Last fall we were happy to see the 11th Circuit rule that, obviously, a state's official laws couldn't be covered by copyright. As you may recall, the case involved the state of Georgia and Carl Malamud's Public.Resource.Org. Malamud has spent years helping to make the law more readily available to the public -- and has been on the receiving end of a bunch of lawsuits for his troubles. The case in Georgia had some slightly odd facts in that the state said that its laws were freely available, but it contracted out to a private company, LexisNexis, to produce an "annotated" version of the law. LexisNexis then got a copyright on the annotations, which it then assigned to the state. Then -- and this is the important part -- the state released the "Official Code of Georgia Annotated" (OCGA) as the only "official" version of the laws. When new laws were passed, they were specifically written to be included in the OCGA. While the lower court said that the annotations could be covered by copyright, and thus Malamud publishing a free online version was infringing, the 11th Circuit easily reversed. It didn't even say something more narrow, like arguing that the republishing was fair use. It said you can't copyright the law at all. Period. Full stop.

... the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The state of Georgia asked the Supreme Court to review and, perhaps surprisingly, Malamud also asked the Supreme Court to take the case, noting that while the 11th Circuit ruling was persuasive, it was not binding across the rest of the country, and it would certainly be nice for the Supreme Court to just rule, flat out, that you can't copyright laws. Of course, the flip side of this is that if the Supreme Court ruled the other way, that would be really bad.

Well, we're going to find out, as the Supreme Court has agreed to hear the case. The Supreme Court has a bit of history being, well, wacky when it comes to copyright cases, so this really could go any way. But what the court decides is going to be important. I fear a result where the court sides with Georgia, leading other states to sense a "revenue opportunity" in locking up their own laws. However, hopefully, the court recognizes the basic absurdity of using copyright on any set of laws, even when it includes annotations from third parties.

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

Both Sides Want The Supreme Court To Review Decision Denying Copyright In Georgia's Law. How About You?

from the public-resource dept

Last year the Eleventh Circuit held that the Georgia statutory code, including annotations, was not protected by copyright. It was an important decision, not just for Carl Malamud's PublicResource.org, which had been sued for publishing Georgia's operative statutory law, including the annotations, but for any member of the public who necessarily needs to be able to freely access the law that governs them.

Georgia has now petitioned the US Supreme Court to review the Eleventh Circuit's decision. But more significantly, Public Resource is also planning to file a brief encouraging that review. Not because Public Resource wants the decision reversed, of course. But because it wants the decision to be affirmed.

Here's the situation. If the Supreme Court declines to review the decision, it will stand. That's a good thing, because it means there would be no risk of infringing copyright in publishing the Georgia state code. Given the decision's reasoning, it would also be difficult for any other state within the Eleventh Circuit to assert copyright in its statutory code either. But for any other state outside the Eleventh Circuit the question of whether statutory law could be copyrighted would remain unsettled. The Eleventh Circuit's decision is persuasive authority that courts elsewhere may defer to, but it's not binding authority, so they don't have to. What the Eleventh Circuit got right they could still get wrong.

Also, even if other courts were to ultimately follow in the Eleventh Circuit's footsteps, it is arduous and expensive to have to litigate in each state and circuit in order to get to that point. Meanwhile plenty of publicly-beneficial uses will remain chilled by the fear of potential litigation and liability as we wait for all these courts to eventually rule that this public access, unrestrained by copyright, is OK.

It would be much more efficient if the Supreme Court could just cut to the chase now and affirm that the Eleventh Circuit's holding is the law of the land. The case is ready and ripe for review, with especially cogent reasoning, so taking up this one would be much more expedient than having to wait for any other case to finally reach the petition stage. After all, the public's need to access the law that governs it is just as critical now as it will be later.

An amicus brief is being put together on behalf of law students, legal educators, and lawyers who are solo practitioners or in small firms to remind the court of this fact. All of these constituencies need access to the law, and not just superficial access, but meaningful access that will allow for the analysis necessary to teach, learn, and practice the law as clients, current and future, need. Yet neither are economically in the position to be able to easily afford the subscription fees they have to pay the commercial databases which are able to monopolize access to the law when states can get away with demanding paid licenses for it. Small law firms and solo practitioners are at a distinct disadvantage to large firms who, with generally wealthier clients, are better able to absorb these costs. And all are at a disadvantage to their peers in Georgia, who no longer need to pay to get access to what the Eleventh Circuit recognized was "intrinsically public domain material, belonging to the People."

If you are a solo or small firm lawyer, or are a law student, and would like to sign on as an amicus to encourage this Supreme Court review, click through the link above to the brief, where there is a form through which you may add your name before midnight on May 2.

Disclosure: I've contributed to the drafting of this brief.

Filed Under: code, copyright, georgia, law, supreme court

Georgia Gov't Employee Somehow Manages To Get Criminally Charged For Violating Public Records Laws

from the protections-for-records-requesters-no-longer-listed-as-'NIB' dept

In an event rarer than the stripping of qualified immunity from a police officer, a public official is being criminally charged for violating open records laws.

The press secretary for former Atlanta Mayor Kasim Reed has been cited for allegedly violating the Georgia Open Records Act in the first-ever criminal complaint filed in connection with the law, the state attorney general’s office announced Monday.

Jenna Garland, 34, the press secretary during Reed’s second term, is accused of ordering a subordinate in the city’s watershed department in March 2017 to delay handing over public records that contained information damaging to Reed and other city officials. The records were requested by Channel 2 Action News.

Both misdemeanor charges are potentially worth $1,000 in fines and a year in jail, but we're probably not going to see anyone locked up for screwing the public. We've only seen one other case like this in the history of Techdirt, and there's nothing indicating any of the politicians indicted for public records law violations have been jailed for breaking the law. In fact, one felt so unthreatened by the charges, she filed for re-election while still under indictment.

In this case, a pair of records requests led to the criminal charges. The first request was for water billing records, filed by journalists at Channel 2. The second request -- filed by the Atlanta Journal-Constitution(AJC) and Channel 2 -- sought communications discussing the water billing records request. The second request was a goldmine for journalists and the impetus for criminal charges against Jenna Garland.

In March 2018, the AJC and Channel 2 published text messages Garland sent a year earlier to then-watershed spokeswoman Lillian Govus.

[...]

In the messages, Garland instructed Govus to “drag this out,” “be as unhelpful as possible” and to “provide the information in the most confusing format available.”

Garland later instructed Govus to “hold all” records until a Channel 2 producer contacted Govus for an update.

The records originally sought showed large amounts owed to the city's water department by a number of city politicians, including a councilwoman attempting to run for mayor. Those records were finally released to Channel 2 after it threatened to sue the agency.

There may be more charges coming, based on what's been seen in the text messages AJC obtained. Garland didn't work alone to withhold requested documents and quite possibly was following instructions from those above her when she started telling city employees to violate open records law.

This sort of thing should be happening more frequently, but it's difficult to convince prosecutors to go after fellow government employees. The laws themselves usually aren't much help, snaring only the most egregious violators. Still, it does show it's not impossible to punish government employees for violating open records laws, which should generate at least some minimal deterrent effect.

Filed Under: criminal charges, foia, georgia, jenna garland, public records

Revolving Doors And Regulatory Capture Are Ensuring E-Voting Remains An Insecure Mess

from the we're-from-the-government-and-we're-here-to-secure-corporate-boardroom-p dept

Despite the long list of bad news generated by electronic voting machines, their market share only continues to grow. Rather than consider them the attack vectors they are, state and county legislators have decided to toss caution and paper ballots to the wind. The future is now. And it's riddled with vulnerabilities.

Maybe there shouldn't be a rush to digitize the democratic process, at least not while manufacturers are still shipping machines pre-loaded with security flaws and inadequate software. The push for e-voting machine deployment isn't organic, of course. It's an organized push that starts with the machines' manufacturers and ends in regulatory capture.

Sue Halpern has exposed the paper trail connect voting machine manufacturers to ill-advised rollouts in her article for the New Yorker. The heaviest pushes target legislatures that make purchasing calls for the entire state. Most states allow the decision to be made at the county level, which decreases the chance the entire state will be affected by voting machine hacking or malfunctions. But in states like Georgia and Delaware, a successful pitch to the state legislature can mean hundreds of millions of dollars in sales.

The pay-for-play begins in the usual way: paid junkets that take state advisory boards to major cities for the usual wine/dine/schmooze-fests with all expenses paid. An investigation by McClatchy showed the Governor Brian Kemp's chief of staff, David Dove, attended an event held by voting machine manufacturer ES&S (Election Systems & Software) -- timed impeccably to capture the state's $100 million voting machine market. To the surprise of no one, the state's election commission decided to award ES&S this contract. But it had to do so over the voices of non-purchased stakeholders who saw nothing good in replacing one faulty e-voting machine with a similarly faulty product.

In doing so, the panel rejected the advice of computer scientists and election-integrity advocates, who consider hand-marked ballots to be the “most reliable record of voter intent,” and also the National Academies of Sciences, Engineering, and Medicine, which recommended that all states adopt paper ballots and conduct post-election audits.

This continued the proud Georgia tradition of voting machine vendor cross-pollination in the state legislature, which kicked off almost a two decades ago. In 2002, Diebold secured a $54 million contract to provide the state with voting machines. Diebold's lobbyist was a former Georgia state official. When problems developed, ES&S stepped in, killing off legislation addressing election integrity issues and capturing a very key demographic.

In 2006, a bill requiring a verifiable paper record of each ballot, introduced in the Georgia legislature at the urging of election-integrity advocates, failed after the state’s elections director, Kathy Rogers, opposed it. Rogers, of course, later went to work for E.S. & S.

Another legislator took an extended trip through the lawmaker/lobbyist revolving door. Charles Harper went from sod farmer to state rep to lobbyist for ES&S before ending up as the deputy chief of staff in Governor Brian Kemp's office. Brian Kemp, of course, spent the last election hastily patching voting machine vulnerabilities following the exposure of flaws, blaming the Democratic Party for the alleged hack, doxxing absentee voters, and, finally, overseeing voting integrity operations of an election he participated in.

Congress has tried to fix this problem… multiple times. It opened this year's session with a 571-page bill full of reforms and paper ballot mandates. The problem is previous attempts to install these reforms have failed after receiving pushback from state officials. Voting machine vendors are focusing on states and counties, where the decisions (and purchases) are made. And it's working.

Last year, the Democratic congressman Bennie Thompson, of Mississippi, proposed the Election Security Act; a year before, the Republican Mark Meadows, the chair of the right-wing House Freedom Caucus, introduced the Paper Act, which was endorsed by the former Department of Homeland Security Secretary Michael Chertoff and by Grover Norquist, the president of the conservative organization Americans for Tax Reform. The Senate’s attempt to reform election practices, last year’s Secure Elections Act, had bipartisan support, too, but was killed by the White House before it got out of committee.

You can't remove money from politics and you can't banish lobbyists from petitioning on the behalf of the causes and corporations they represent. But you can oust politicians who prefer corporations to constituents. Changes can be made and it all starts with those who serve their own interests rather than the public's. Shining a light on regulatory capture is the first step.

Filed Under: brian kemp, e-voting, georgia, lobbying, regulatory capture

Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws

from the get-out-of-here dept

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.

Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.

It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.

Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

It appears that this is par for the course for the real life grownups who work for the State of Georgia:

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

The letter also addresses Anders Ganten of LexisNexis (owned by the RELX Group, a company based in the UK):

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges.

No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order -- but even worse, they are refusing to sell a copy of their legal code (already a bizarre stance) out of fear that Malamud will make it easier for the public to read the laws. If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

Filed Under: carl malamud, copyright, georgia, ocga, official code of georgia annotated, public domain
Companies: lexisnexis, public.resource.org

Woman Sues Georgia Deputies After Their Field Drug Test Said Her Cotton Candy Was Meth

from the lazy-people-relying-on-stupid-tools dept

Cops love cheap field drug tests because they're cheap and as likely to generate "probable cause" for an arrest/search as their much more expensive drug dogs. No law enforcement agency has ever expressed concerns about these fields tests returning false positives at an alarming rate. They just book people and send them before a judge based on a $2 test that can find anything from drywall powder to doughnut crumbs to be controlled substances. This void in accountability has occasionally been filled by prosecutors, a few of which will not offer or accept plea deals based on nothing more than a field test.

A faulty drug test is at the center of a recently-filed lawsuit. Georgia resident Dasha Fincher is suing Monroe County and two sheriff's deputies over a field drug test that turned cotton candy into methamphetamines and upended her life. (via the Atlanta Journal-Constitution)

According to Fincher's complaint [PDF], she was stopped for a supposed window tint violation by Monroe County deputies Allen Henderson and Cody Maples. Ultimately, the deputies decided the tint on her windows was lawful. But that obviously wasn't the real reason for the stop. The deputies wanted to search the vehicle. According to their report [PDF] of the incident, consent was given by both the driver and Fincher, who was the passenger in the vehicle. Deputy Williams found a "blue crystal like substance" in a bag on the floor. Both the driver and Fincher told the deputy it was cotton candy. The deputies tested it with a field kit, which conveniently confirmed their suspicions.

Based on the packaging and its crystal like feature, Corporal Williams tested the substance using a field kit for Methamphetamine and MDMA. The field kit gave a positive reading.

Here's a picture of the alleged methamphetamine:

Fincher was charged with drug trafficking, a felony that comes with mandatory minimum sentences and hefty fines. Since the drug hadn't been tested at a lab yet, the deputy's guesswork on its weight put Fincher in line for a minimum ten year prison sentence and a fine of $100,000. Bail was set at $1 million, so Fincher had no choice but to remain in jail until the substance was tested by the state's drug lab.

When those results came back, Fincher was cleared. Not only that, but the amount recorded by the lab (26 grams) fell short of the 28 grams needed to charge Fincher with trafficking. But by the time Fincher's innocence was proven, a tremendous amount of damage had been done. Fincher spent three months in jail, missing the birth of her twin grandsons and being unable to help when her daughter suffered a miscarriage. Her charges were dropped April 18, 2017, 109 days after she was arrested. The felony arrest remains on her record.

The lawsuit argues the deputies operated in bad faith, knowing high bail would be set and Fincher would remain in jail until the substance was tested by a lab. She argues they should have known the field tests routinely generated false positives. And there's evidence to back that claim. This report, broadcast last month by a Fox affiliate in Georgia, shows the Georgia Bureau of Investigation's (GBI) crime lab has reversed dozens of field drug test results.

The FOX 5 I-Team obtained every negative drug test report from the GBI Crime Lab in 2017, then researched to find out how many of those cases began with a positive NIK test. We confirmed 145 false positives, wrongly implicating Georgians of all races in all parts of our state. The field tests got it wrong 11 times for heroin, 24 times for ecstasy, 40 times for cocaine and 64 times for methamphetamines.

In each case, someone's life was upended. Georgia's drug laws are harsh and bail amounts are unaffordable for all but the most wealthy. About the only positive resulting from this examination is the Georgia Tech University's police force deciding they'd no longer use field tests. Across the rest of the state, this option hasn't even been considered by law enforcement agencies utilizing the NIK tests.

It may take a lot of lawsuits like this one to push law enforcement agencies to consider quality over quantity. Judges need to be made aware of these problems as well, since they're the ones who can reduce bail, allow releases pending trial, and shut down guilty pleas predicated on tests that are wrong far too often to be considered reliable.

Filed Under: cotton candy, dasha fincher, drug tests, field drug tests, forensics, georgia, meth, monroe county, police, probable cause

Georgia's Brian Kemp Decides To Dox Absentee Voters, Revealing Why They All Voted Absentee

from the voting-irregularities dept

Kind of a key part of the American election setup is the concept of a secret ballot for hopefully obvious reasons. We haven't gone quite so far as eliminating that, but down in Georgia, Secretary of State Brian Kemp (who was running for governor at the same time as he was overseeing the integrity of the election and also putting in place a bunch of attempts at voter suppression) has doxxed hundreds of thousands (291,164 to be exact) of absentee voters by posting an Excel file on the state's website listing out the names, addresses and reasons why they voted absentee.

In typical spokesperson Candice Broce fashion (see her previous nonsensical quotes defending her boss), Broce/Kemp denied that there's anything wrong with this at all. The systems, they are all working perfectly:

When reached, Georgia secretary of state’s press secretary Candice Broce told TechCrunch that all of the data “is clearly designated as public information under state law,” and denied that the data was “confidential or sensitive.”

“State law requires the public availability of voter lists, including names and address of registered voters,” she said in an email.

While it is true that voter name and address info is required to be made available, it is usually not made available in aggregate for anyone to just download without restrictions. And, it's especially concerning that they released the reasons for voting absentee just a day or so after the election -- as people pointed out that this could be quite useful info for criminals looking for who might be away from their homes.

More concerning, of course, is the idea that this could scare off future voters as well who don't want such info being released in such a manner.

Either way, the idea that the Secretary of State, who kept insisting how wonderful his electronic voting systems were, would then release a giant Excel spreadsheet should again raise questions about the technological skills of whoever set up the system, let alone Kemp for overseeing such a system.

Filed Under: absentee voters, brian kemp, doxxing, elections, georgia, voter suppression