We Interrupt This Hellscape With A Bit Of Good News On The Copyright Front

from the carl-malamud-versus-the-world dept

We've written about this case – or rather, these cases – a few times before: Carl Malamud published the entire Code of Federal Regulations at Public.Resource.org, including all the standards that the CFR incorporated and thus gave the force of law. Several organizations that had originally promulgated these various standards then sued Public Resource – in two separate but substantially similar cases later combined – for copyright infringement stemming from his having included them.

In a set of really unfortunate decisions, the district court upheld the infringement claims, finding that the standards were copyrightable (and also actually owned by the standards organizations claiming them, despite reason to doubt those ownership claims), and that Public Resource including them as part of its efforts to post the law online was not a fair use. But then the DC Circuit reversed that decision. While it generally left the overall question of copyrightability for another day, it did direct the district court to re-evaluate whether the publication of the standards was fair use.

Now back at the district court, the cases had proceeded to the summary judgment stage and were awaiting a new ruling for the court. One case still remains pending – ASTM v Public.Resource.Org – but the other one, American Educational Research Association et al. v. Public.Resource.Org, has now been dismissed by the plaintiffs with prejudice. Effectively that means that Public Resource wins and can continue to host these standards online. Which is good news for Public Resource and its users. But it does still leave anyone else's ability to repost standards incorporated into law up in the air. Hopefully when the court eventually rules in the remaining case it will find such use fair, and in a way that others can similarly avail themselves of the ability to fully publish the law.

Filed Under: carl malamud, copyright, federal regulations, incorporated by reference, law, public domain, standards
Companies: aera, public.resource.org

Supreme Court Says Georgia's 'Official Code' Is Public Domain -- Including Annotations

from the mostly-good-news dept

The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain. If you don't recall, this case started years ago. The state of Georgia has a somewhat odd way of publishing its official code. Every new law is published, by state edict, in the "Official Code of Georgia Annotated" or the OGCA. Every new law explicitly says that it will be published in the OCGA. The tricky copyright issue came from the "Annotated" part of that. Annotations are (mostly) summaries of judicial interpretations of the law, and the state of Georgia outsourced the annotating to the private company LexisNexis. LexisNexis would write the annotations, for which it received a copyright, and then assign the copyright to the Georgia government. While Georgia put up a free version of the unannotated law, to get the annotated version -- which, again, is the "official" law of the state -- you either had to pay or to register with a website that included significant (and highly questionable) restrictions. In response, Carl Malamud, who has devoted much of his life's work to making sure that the laws of the world are freely accessible to those who are ruled by those laws, posted a free copy of the OGCA to the web.

In response, Georgia first demanded he take it down, then it sued him for copyright infringement. The state initially won in the district court, but then was overturned on appeal, with the 11th Circuit saying that you can't copyright the law. Both sides appealed to the Supreme Court -- with Georgia wanting to continue locking up the law, and with Malamud wanting a precedent that applied beyond just the 11th Circuit. For what it's worth, even after the appeals court ruled in Malamud's favor, the state bent over backwards to try to block Carl Malamud from getting a copy of the OGCA. Yes, they didn't want him to get a copy of the state's official law, which is as crazy as it sounds.

Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can't copyright the law.

The question in this case is whether that protection extends to the annotations contained in Georgia’s official annotated code.

We hold that it does not.

The key reasoning here, according to the majority opinion written by Chief Justice Roberts, is that authorship by a legislative body means that it's authored by the government (even if the actual writing is then done by a third party):

Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.

We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyright-able when created by judges who possess the authority to make and interpret the law. See Banks v. Manchester, 128 U. S. 244 (1888). We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

While I'm glad about the end result, using this reasoning seems odd to me. Focusing on the authorship, rather than the fact that this is part of the law, seems like the wrong path. After all, Section 105 of the Copyright Act says that works created by the federal government are not subject to copyright, but that copyright is allowed for works created by a third party and then assigned to the government (which was the case here). The appeals court decision focused on the fact that "the law" has to be in the public domain. But the Supreme Court decided, instead, to go for a more narrow focus on "authorship."

From there, it twists itself into a bit of a knot to argue that the annotations, despite being done by LexisNexis, were actually authored by the Georgia legislature. It does make clear that works created by legislatures cannot be subject to copyright, which is nice -- but wasn't much in dispute, frankly:

We hold that the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.

There still is some good language about how the public must be able to access the law:

The animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access” to its contents.

But then insists that the mechanism of this is to focus on authorship, rather than on whether or not something is the law. That has the potential to be a problem down the road as others may try to twist this to make it clear that others do the authorship and then assign the copyright to the law.

Our cases give effect to that principle in the copyright context through construction of the statutory term “author.”... Rather than attempting to catalog the materials that constitute “the law,” the doctrine bars the officials responsible for creating the law from being considered the “author[s]” of “whatever work they perform in their capacity” as lawmakers. Ibid. (emphasis added). Because these officials are generally empowered to make and interpret law, their “whole work” is deemed part of the “authentic exposition and interpretation of the law” and must be “free for publication to all.”

If judges, acting as judges, cannot be “authors” because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.Courts have thus long understood the government edicts doctrine to apply to legislative materials.

Right, but again, this wasn't exactly the central issue in this case. It's about whether or not the private authorship of the annotations can still get copyright. To be fair, there had been some questions about whether or not Section 105 of the Copyright Act (regarding the copyrightability of government works) only applied to the Federal government or also state governments, and this ruling has at least settled that uncertainty by saying in no uncertain terms that it also applies to state governments.

But here, the ruling focuses more on authorship and the majority opinion basically says that based on how the OGCA is created, the legislature is the author, rather than LexisNexis:

As we have explained, the annotations were prepared in the first instance by a private company (Lexis) pursuant to a work-for-hire agreement with Georgia’s Code Revision Commission. The Copyright Act therefore deems the Commission the sole “author” of the work. 17 U. S. C. §201(b). Although Lexis expends considerable effort preparing the annotations, for purposes of copyright that labor redounds to the Commission as the statutory author.

Indeed, the ruling seems to spend more time highlighting that the Code Revision Commission is a part of the legislature, than it does on the fact that LexisNexis wrote the original annotations. This has me wondering if this may effectively obliterate copyright on works created at the behest of governments from third party contractors (which had always been something of a loophole in the law). Under this ruling, it sure sounds like many works that we previously believed the government held a copyright on, because they were developed/created by an outside contractor at the behest of the government, now can be declared in the public domain as well.

Another interesting tidbit in the ruling regards how much deference should be given to the Copyright Office's view of things. Here, the Supreme Court more or less says "well, not so much," by noting that things like the Copyright Office's "Compendium" of practices is a "non-binding administrative manual." That's certainly useful for situations in which the Copyright Office goes weird, but also is less useful when the Copyright Office gets things right (like with regards to whether or not a monkey taking a selfie gets copyright).

The majority opinion also brushes off Georgia's claim that without copyright here it'll never get private companies like LexisNexis to help it write annotations:

Georgia also appeals to the overall purpose of the Copyright Act to promote the creation and dissemination of creative works. Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution. That appeal to copyright policy, however, is addressed to the wrong forum. As Georgia acknowledges, “[I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”

Even outside of it being the wrong forum, this argument is silly. There are tons of companies that create things for the US government based on getting paid to do so without any need for a separate monopoly right.

Oh, and that reminds me, Chief Justice Roberts opens his decision by reminding people that copyright is a monopoly right:

The Copyright Act grants potent, decades-long monopoly protection for “original works of authorship.”

That's nice to see since bringing up the "m" word seems to make a lot of copyright maximalists lose their minds.

As the majority ruling builds to its conclusion, it's nice to see Chief Justice Roberts call out a perfect example of why the annotated version of the law should be accessible to all (though amusingly, to make his point, he has to point out that the OGCA will cost you $412 to check his citation -- at least it did when he wrote it):

Georgia minimizes the OCGA annotations as non-binding and non-authoritative, but that description undersells their practical significance. Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct,and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. See OCGA §§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at www.legis.ga.gov). Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal. See §§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at https://store.lexisnexis.com/products/official-code-of-georgia-annotated-skuSKU6647 for $412.00).

If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.

There's also this bit of support for the law being freely available, and the fact that betting on fair use is a "roll the dice" situation (!!!).

If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.... Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.... The less bold among us would have to think twice before using official legal works that illuminate the law we are all presumed to know and understand.

That section admitting that the requirement of a trial to resolve fair use being naturally suppressing of free speech is... kind of amazing in its own right, and I imagine it may show up in other cases at some point.

There are two dissents -- one from Justice Thomas (which Justice Alito joins, and Justice Breyer mostly joins) and one from Justice Ginsburg. Thomas's dissent is... just weird. He basically says the law can't be copyrighted, but obviously annotations can be -- which by itself is perhaps an understandable argument, but most of Thomas' dissent focuses on his new favorite focus: whether or not the Supreme Court should be taking earlier precedents and building on them:

In my view, the majority’s uncritical extrapolation of precedent is inconsistent with the judicial role. An unwillingness to examine the root of a precedent has led to the sprouting of many noxious weeds that distort the meaning of the Constitution and statutes alike. Although we have not been asked to revisit these precedents, it behooves us to explore the origin of and justification for them, especially when we are asked to apply their rule for the first time in over 130 years.

I mean, okay. But under that prism, shouldn't we be going back to a copyright that actually lasted for a limited time and only applied to maps, books, and charts? Copyright has changed quite a bit from the time of the Constitution.

The Ginsburg dissent was to be expected, as she has always been the most copyright-maximalist Supreme Court Justice around, and never misses a chance to push for worse copyright law and locking up knowledge. It is a bit surprising that Breyer also joined in her dissent -- since he, historically, has been on the right side of many copyright cases. That dissent argues that the annotations are separate from the law and deserve a copyright. She argues that while it's okay to say that judge's annotations cannot get copyright, that's because it's their job to interpret the laws. A legislature has a role in creating the laws -- but not interpreting them, and thus (in her mind) official annotations are not within their direct responsibility:

One might ask: If a judge’s annotations are not copyright-able, why are those created by legislators? The answer lies in the difference between the role of a judge and the role of a legislator. “[T]o the judiciary” we assign “the duty of interpreting and applying” the law, Massachusetts v. Mellon, 262 U. S. 447, 488 (1923), and sometimes making the applicable law, see Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). In contrast, the role of the legislature encompasses the process of “making laws”—not construing statutes after their enactment.

And thus because it serves a different purpose (and is not binding) she says the annotations deserve copyright:

Because summarizing judicial decisions and commentary bearing on enacted statutes, in contrast to, for example, drafting a committee report to accompany proposed legislation, is not done in a legislator’s law-shaping capacity, I would hold the OCGA annotations copyrightable and therefore reverse the judgment of the Court of Appeals for the Eleventh Circuit.

In the end, the result is good, but the ruling is a bit messy, and not quite as nice as it could have been. But the key result: the laws of Georgia, including the annotations in the official code, should be available for anyone to read. And that's a very good thing.

Filed Under: annotations, carl malamud, copyright, georgia, laws, official code of georgia annotated, ogca, public domain, state laws, supreme court
Companies: lexisnexis, public.resource.org

Content Moderation At Scale Is Impossible: YouTube Says That Frank Capra's US Government WWII Propaganda Violates Community Guidelines

from the say-what-now? dept

You've heard me say it over and over again now: Masnick's Impossibility Theorem is that it is literally impossible to do content moderation at scale well. There will always be dumb mistakes. The latest example? Rogue archivist Carl Malamud had posted filmmaker Frank Capra's classic Prelude to War on YouTube. If you're unfamiliar with Prelude to War, it's got quite a backstory. During World War II, the US government decided that, in order to build up public support for the war, it would fund Hollywood to create blatant American propaganda. They had Frank Capra, perhaps Hollywood's most influential director during the 1930s, produce a bunch of films under the banner "Why We Fight." The very first of these was "Prelude to War."

The film, which gives a US government-approved history of the lead up to World War II includes a bunch of footage of Adolf Hitler and the Nazis. Obviously, it wasn't done to glorify them. The idea is literally the opposite. However, as you may recall, last summer when everyone was getting mad (again) at YouTube for hosting "Nazi" content, YouTube updated its policies to ban "videos that promote or glorify Nazi ideology." We already covered how this was shutting down accounts of history professors. And, now, it's apparently leading them to take US propaganda offline as well.

Malamud received a notice saying the version of "Prelude to War" that he had uploaded had been taken down for violating community guidelines. He appealed and YouTube has rejected his appeal, apparently standing by its decision that an anti-Nazi US propaganda film financed by the US government and made by famed director Frank Capra... is against the site's community guidelines.

Obviously, this is ridiculous. But, it once again highlights the impossibility of content moderation at scale. YouTube has so much content and so much new content every minute, it can't possibly review all the content. And the content that it can review, it can't have people researching the history and provenance of every bit of content. So, here, it appears likely that the moderation team used a fairly simple heuristic: it's a film showing Germans celebrating Hitler. Therefore, it's not allowed. It's even entirely possible that the tone of the film made it clear that it was a propaganda film... it's just that it would take too much effort to figure out propaganda for whom.

Of course, as Malamud himself points out, what's particularly ridiculous is that this isn't the only version of the film he's uploaded. So while that one is still down, another one is still there. You can watch it now. Well, at least until YouTube decides this one also violates community standards.

Filed Under: carl malamud, content moderation, content moderation at scale, frank capra, masnick's impossibility theorem, nazis, prelude to war, propaganda, why we fight, world war ii
Companies: youtube

Why Carl Malamud's Latest Brilliant Project, To Mine The World's Research Papers, Is Based In India

from the sci-hub-to-the-rescue-again dept

Carl Malamud is one of Techdirt's heroes. We've been writing about his campaign to liberate US government documents and information for over ten years now. The journal Nature has a report on a new project of his, which is in quite a different field: academic knowledge. The idea will be familiar to readers of this site: to carry out text and data mining (TDM) on millions of academic articles, in order to discover new knowledge. It's a proven technique with huge potential to produce important discoveries. That raises the obvious question: if large-scale TDM of academic papers is so powerful, why hasn't it been done before? The answer, as is so often the case, is that copyright gets in the way. Academic publishers use it to control and impede how researchers can help humanity:

[Malamud's] unprecedented project is generating much excitement because it could, for the first time, open up vast swathes of the paywalled literature for easy computerized analysis. Dozens of research groups already mine papers to build databases of genes and chemicals, map associations between proteins and diseases, and generate useful scientific hypotheses. But publishers control -- and often limit -- the speed and scope of such projects, which typically confine themselves to abstracts, not full text.

Malamud's project gets around the limitations imposed by copyright and publishers thanks to two unique features. First, Malamud "had come into possession (he won't say how) of eight hard drives containing millions of journal articles from Sci-Hub". Drawing on Sci-Hub's huge holdings means his project doesn't need to go begging to publishers in order to obtain full texts to be mined. Secondly, Malamud is basing his project in India:

Over the past year, Malamud has -- without asking publishers -- teamed up with Indian researchers to build a gigantic store of text and images extracted from 73 million journal articles dating from 1847 up to the present day. The cache, which is still being created, will be kept on a 576-terabyte storage facility at Jawaharlal Nehru University (JNU) in New Delhi.

India was chosen because of an important court battle that concluded two years ago. As Techdirt reported then, it is legal in India to make photocopies of copyright material in an educational context. Malamud's contention is that this allows him to mine academic material in India without the permission of publishers. But he also believes that his TDM project would be legal in the US:

The data mining, he says, is non-consumptive: a technical term meaning that researchers don't read or display large portions of the works they are analysing. "You cannot punch in a DOI [article identifier] and pull out the article," he says. Malamud argues that it is legally permissible to do such mining on copyrighted content in countries such as the United States. In 2015, for instance, a US court cleared Google Books of copyright infringement charges after it did something similar to the JNU depot: scanning thousands of copyrighted books without buying the rights to do so, and displaying snippets from these books as part of its search service, but not allowing them to be downloaded or read in their entirety by a human.

The fact that TDM is "non-consumptive" means that the unhelpful attitude of academic publishers is even more unjustified than usual. They lose nothing from the analytical process, which is merely extracting knowledge. But from a sense of entitlement publishers still demand to be paid for unrestricted computer access to texts that have already been licensed by academic institutions anyway. That selfish and obstructive attitude to TDM may be about to backfire spectacularly. The Nature article notes:

No one will be allowed to read or download work from the repository, because that would breach publishers' copyright. Instead, Malamud envisages, researchers could crawl over its text and data with computer software, scanning through the world's scientific literature to pull out insights without actually reading the text.

The thing is, if anyone were by any chance interested in reading the full text, there's an obvious place to turn to. After all, the mining is carried out using papers held by Sci-Hub, so…

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic papers, carl malamud, copyright, india, journals, research, science, tdm, text and data mining
Companies: sci-hub

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

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

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

from the huge-news dept

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

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

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

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

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

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power -- which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The court admits that there are strong arguments in both directions on this one, but:

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

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

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

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

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

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

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

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

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

Appeals Court Tells Lower Court To Consider If Standards 'Incorporated Into Law' Are Fair Use; Could Have Done More

from the 102(b)-or-not-102(b),-that-was-the-question dept

Carl Malamud published the law on his PublicResource.org website. And for that he got sued. The problem was, in posting the Code of Federal Regulations he also included the various enforceable standards included as part of those Regulations. This displeased the organizations which had developed those standards (SDOs) and who claimed a copyright in them. So they sued Public Resource for infringement, and in a terrible decision last year Public Resource lost. Public Resource then appealed, and this week Malamud's organization won a reversal of the district court decision.

The decision by the D.C. Circuit in American Society for Testing and Materials v. PublicResource.org stands as a win for those who would choose to republish the law, even when their doing so may involve republishing standards created by non-governmental SDOs that were then incorporated by reference into controlling law. Although one can never presume to read the tea leaves at oral argument, it did seem as though the court was extremely uncomfortable with the idea that someone could be punished for having published the law. But the particular way the court addressed the copyright and trademark claims brought against Public Resource for it having done so is still worth further discussion. Disclosure: I helped file an amicus brief on behalf of members of Congress supporting Public Resource's defense, and amicus briefs on behalf of law professors at the district court.

On the copyright front, it is important to first note how the court did NOT resolve the question of whether republishing standards incorporated into law constituted copyright infringement. A threshold question in any copyright infringement case is whether there's any copyright that could have been infringed at all, because no copyright = no infringement, and with no infringement the case goes away. One way there might not be a copyright is if employees of the federal government had worked on developing the standards, like the ones at issue in this case, since under § 105 of the copyright statute, works by federal government employees are ineligible for copyright protection. But in its decision the D.C. Circuit dismissed this argument, finding that Public Resource had effectively waived it at the district court below.

As an initial matter, PRO argues that there is a triable question as to whether the standards at issue here were ever validly copyrighted given the Act’s prohibition on copyrighting “work[s] of the United States Government,” 17 U.S.C. § 105, and the fact that government employees may have participated in drafting certain standards. PRO, however, failed to adequately present this claim to the district court and has thus forfeited it. [p. 14]

Another way there might not be copyright in the standards Public Resource published is that, by being published as a factual representation of what the law is, that factual nature would preclude there being a copyright in what was republished, since, per § 102(b) of the copyright statute, purely factual works are also not eligible for copyright protection. This consideration was kicked around by the judges during oral argument because it's a complicated issue with some interesting implications. First, there's the question of whether the standards themselves are too factual to be copyrighted, but for the sake of this case the court generally assumed they could be. But even if they are copyrightable, the next question is what happens when the standards have now become a factual representation of the law governing people's behavior? Does that incorporation cause them to lose their copyright? And what would it mean for SDOs and the development of future standards by third parties if that were the case?

The court, however, chose to avoid these questions. It gave several reasons for this avoidance, including that a ruling on the copyrightability of incorporated standards could have a significant economic effect on those SDOs, [p. 16], and also that it's generally considered better practice for courts to decide cases on grounds other than constitutional ones [p. 15]. (As Public Resource and amici pointed out, not being able to post the law for people governed by it to read raises significant First Amendment and due process concerns, which would mean that the question of if the law could be copyrighted may be a constitutional one.) [p. 14-15].

Avoiding the constitutional question is all the more pressing here given that the record reveals so little about the nature of any given incorporation or what a constitutional ruling would mean for any particular standard. After all, it is one thing to declare that “the law” cannot be copyrighted but wholly another to determine whether any one of these incorporated standards—from the legally binding prerequisite to a labeling requirement, see 42 U.S.C. § 17021(b)(1), to the purely discretionary reference procedure, see 40 C.F.R. § 86.113-04(a)(1)—actually constitutes “the law.” [p. 15-16]

Instead the court chose to find for Public Resource on fair use grounds. [p.17] Or at least put Public Resource in a position to ultimately prevail on those grounds. Although the court lifted the injunctions the district court had placed on it – injunctions that had forced Public Resource to remove from its site actual, operative, mandatory law binding on the public – the case still needs to go back to the district court because the appeals court didn't think it had a sufficiently developed record before it to itself fully perform its own fair use analysis. It did, however, give the district court a head start, with enough instruction of how to perform that analysis to make it likely to yield a favorable result for Public Resource on remand.

In this section, we review each of the fair use factors, and, as we shall explain, though there is reason to believe “as a matter of law” that PRO’s reproduction of certain standards “qualif[ies] as a fair use of the copyrighted work,” id. (internal quotations and citations omitted), we ultimately think the better course is to remand the case for the district court to further develop the factual record and weigh the factors as applied to PRO’s use of each standard in the first instance. As we have emphasized, the standards here and the modes of their incorporation vary too widely to conclusively tell goose apart from gander, and the record is just too thin to tell what went into the sauce. On remand, the district court will need to develop a fuller record regarding the nature of each of the standards at issue, the way in which they are incorporated, and the manner and extent to which they were copied by PRO in order to resolve this “mixed question of law and fact.” Id. This is not to say that the district court must analyze each standard individually. Instead, it might consider directing the parties, who poorly served the court by treating the standards interchangeably, to file briefs addressing whether the standards are susceptible to groupings that are relevant to the fair use analysis. [p. 19]

Overall, this is a good result for Public Resource. And far be it for me to rain on Carl Malamud and his legal team's well-deserved parade, it's still important to point out why, although this D.C. Circuit decision is a good one, it could have been better.

For one thing, the parties have already litigated a lengthy trial. And their prize for finally winning the pie eating contest now is more pie. That litigating fair use is so arduous, even for as well-counseled a defendant as Public Resource, is a significant problem. As Lawrence Lessig has observed, "Fair use is only the right to hire a lawyer." Fair use is of little value for worthy defendants who might ultimately win infringement cases on those grounds if they can get obliterated by the litigation defending themselves along the way. Which is one reason why the D.C. Circuit's refusal to evaluate the core copyrightability grounds is a troubling one, because while Public Resource may ultimately prevail, what about anyone else who similarly decides to publish the law that also incorporates standards?

Furthermore, while the court's interest in ensuring that Public Resource could survive a subsequent fair use inquiry is great for Public Resource, and there is nothing in the decision to suggest that it is only Public Resource that should get to, it won't be helpful if the way the court framed each of the fair use factors in order to ensure it could reach Public Resource can't be of use to other defendants not exactly like Public Resource but with their own plausible fair use defenses. Certain language in particular does give some pause, such as the hostility towards some of Public Resource's transformative uses.

On this point, the district court properly rejected some of PRO’s arguments as to its transformative use—for instance, that PRO was converting the works into a format more accessible for the visually impaired or that it was producing a centralized database of all incorporated standards. [p. 21 (citing American Geophysical Union v. Texaco Inc., 60 F.3d 913, 923–24 (2d Cir. 1994)]

On the other hand, much of its reasoning is necessarily flexible enough to reach other defendants so that they, too, can have the four factors balanced in their favor. For the same reasons the court found the idea distasteful that Public Resource should be prevented from sharing the law, it would be similarly distasteful if others were similarly prevented. In addition, should another defendant have difficulty showing its use is fair, the court also left open the possibility that the underlying copyrightability of the standards incorporated into law could still be challenged.

To be sure, it may later turn out that PRO and others use incorporated standards in a manner not encompassed by the fair use doctrine, thereby again raising the question of whether the authors of such works can maintain their copyright at all. [p. 16]

The concurrence by Judge Katsas provides additional reassurance. First, he reiterated that the Section 102(b) and Constitutional questions raised by someone claiming copyright over parts of published law remain unresolved and may yet be resolved in a way that dispels these claims. [Katsas concurrence p. 3]. He also provided some additional framing for the fair use analysis, noting that "it puts a heavy thumb on the scale in favor of an unrestrained ability to say what the law is." [Katsas concurrence p. 2]

Thus, when an incorporated standard sets forth binding legal obligations, and when the defendant does no more and no less than disseminate an exact copy of it, three of the four relevant factors—purpose and character of the use, nature of the copyrighted work, and amount and substantiality of the copying—are said to weigh “heavily” or “strongly” in favor of fair use. […] The Court acknowledges the thinness of the record in this case, and it appropriately flags potentially complicating questions about how particular standards may be incorporated into law, and whether such standards, as so incorporated, actually constitute “the law.” But, where a particular standard is incorporated as a binding legal obligation, and where the defendant has done nothing more than disseminate it, the Court leaves little doubt that the dissemination amounts to fair use. [Katas concurrence p. 2]

In other words, despite the above concerns, the decision will still make it harder for future plaintiffs to try to lock people out of sharing the law on copyright grounds, as it is not something that, at least in the D.C. Circuit, will be looked upon with a friendly eye.

Meanwhile, there is also some additional good news from this case on the trademark front. Public Resource had included the trademarks of the SDOs behind the incorporated standards, and the SDOs (and district court) believed this use of the marks to be infringing. The D.C. Circuit disagreed, however, and found it possible that Public Resource's use of the trademarks could qualify as nominative fair use, which "occurs when the defendant uses the plaintiff’s trademark to identify the plaintiff’s own goods and ‘makes it clear to consumers that the plaintiff, not the defendant, is the source of the trademarked product or service.’” [p. 33-34] This issue, too, was remanded back to the trial court, although with the admonition that if the trial court should again find Public Resource's use to be infringing, it should potentially refrain from issuing another injunction barring all use of the trademark and instead consider whether merely modifying the use would be an adequate remedy. [p.36-37].

Filed Under: carl malamud, copyright, dc circuit, fair use, free law, incorporated by law, law, standards
Companies: astm, publicresource.org

Members Of Congress: Court Was Wrong To Say That Posting The Law Is Copyright Infringement

from the time-to-clarify-the-law dept

Back in February, we wrote about a disturbing court decision that said that standards that are "incorporated by reference" into law, could still be copyright infringing if posted to the internet. In that earlier post I go into much more background, but the short version is this: lots of laws point to standards put together by private standards bodies, and say, effectively, "to be legal, you must meet this standard." For example, fire codes may be required to meet certain standards put together by a private standards body. Carl Malamud has spent years trying to make the law more accessible, and he started posting such standards that are "incorporated by reference" into the law publicly. His reasoning: once the government incorporates the standard into the law, the standard must be publicly available. Otherwise, you have a ridiculous situation in which you can't even know what the law is that governs you unless you pay (often a lot) to access it.

Standards bodies weren't happy about this -- as some of them make a large chunk of money from selling access to the standards. But from a straight up "the law should be public" standpoint, the answer should be "too bad." Unfortunately, the district court didn't see it that way, and basically said it's okay to have parts of our laws blocked by copyright. We thought that ruling had some serious problems, and Malamud and his organization Public.Resource.Org appealed. A bunch of amicus briefs have been filed in the case -- which you can see at EFF's case page on the lawsuit. There's a good one from some law professors about how the lower court got it wrong, as well as a ton of library associations (and also other law professors and former gov't officials). Public Citizen also filed a good brief on the importance of having access to the law. It's worth reading them all.

However, I wanted to focus on a different amicus brief, filed by two sitting members of Congress, Reps. Zoe Lofgren and Darrell Issa. The brief was put together by Harvard's Cyberlaw Clinic, with help from lawyer Cathy Gellis (who has represented us from time to time, as well as written some posts for Techdirt). It's certainly not unheard of to have members of Congress file amicus briefs in cases, but it's not particularly common either. The fact that two members of Congress are worried about the due process implications of a court ruling should, hopefully, capture the court's attention.

For the law to govern and protect the people, the people must know what the law is. By offering an electronic platform for the publication of legal codes and standards, Public Resource helps the public by providing access to laws that might otherwise be functionally inaccessible. Without this access, the consequences are significant. First, those who inadvertently violate inaccessible regulations may be blindsided by civil and criminal penalties for violations they did not know to avoid. Second, those whose health and welfare depends on others’ compliance with these regulations may suffer damage to their life, liberty, and property, as a result of both others’ ignorance of the law and their own inability to access the law in order to pursue enforcement. This Court should not endorse a copyright regime that allows private SDOs to limit access to the legal rules that govern and protect the public.

Also:

As members of Congress, our job is to draft and enact laws that govern the United States. But mere passage of legislation is not enough; due process requires more. The Fifth and Fourteenth Amendments dictate that no person is to be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V; U.S. Const. amend. XIV. There can be no due process when people cannot remain informed of the laws by which they are bound. And they cannot remain informed when the law itself is not sufficiently communicated to the people it governs.

Lots of people could make those points -- but having it come from the people who actually make the laws seems to make the point that much more relevant. Hopefully the court agrees.

Filed Under: carl malamud, darrell issa, incorporated by reference, law, standards, zoe lofgren
Companies: public.resource.org

Copyright Law And The Grenfell Fire - Why We Cannot Let Legal Standards Be Locked Up By Copyright

from the burning-down-the-house dept

It's always hard to write about the policy implications of tragedies – the last thing their victims need is the politicization of what they suffered. At the same time, it's important to learn what lessons we can from these events in order to avoid future ones. Earlier Mike wrote about the chilling effects on Grenfell residents' ability to express their concerns about the safety of the building – chilling effects that may have been deadly – because they lived in a jurisdiction that allowed critical speech to be easily threatened. The policy concern I want to focus on now is how copyright law also interferes with safety and accountability both in the US and elsewhere.

I'm thinking in particular about the litigation Carl Malamud has found himself faced with because he dared to post legally-enforceable standards on his website as a resource for people who wanted ready access to the law that governed them. (Disclosure: I helped file amicus briefs supporting his defense in this litigation.) A lot of the discussion about the litigation has focused on the need for people to know the details of the law that governs them: while ignorance of the law is no excuse, as a practical matter people need a way to actually know what the law is if they are going to be expected to comply with it. Locking it away in a few distant libraries or behind paywalls is not an effective way of disseminating that knowledge.

But there is another reason why the general public needs to have access to this knowledge. Not just because it governs them, but because others' compliance with it obviously affects them. Think for instance about the tenants in these buildings, or any buildings anywhere: how can they be equipped to know if the buildings they live in meet applicable safety standards if they never can see what those standards are? They instead are forced to trust that those with privileged access to that knowledge will have acted on it accordingly. But as the Grenfell tragedy has shown, that trust may be misplaced. "Trust, but verify," it has been famously said. But without access to the knowledge necessary to verify that everything has been done properly, no one can make sure that it has. That makes the people who depend on this compliance vulnerable. And as long as copyright law is what prevents them from knowing if there has been compliance, then it is copyright law that makes them so.

Of course, there are lots of standards at issue in the Public Resource cases, and not all of them necessarily would threaten mortal peril if they were not complied with. But the federal court's decision in these cases, if allowed to stand, means that all sorts of standards, including those bearing on public safety, can be kept from ready public view through a claim of copyright. As the resulting injunctions ordering Carl Malamud to delete accurate and operable law from his website makes clear, no matter how accurate or operable the legal standard, no matter how critical compliance with the standard is to ensure the health and safety of the public, people can be prevented from sharing the knowledge of what that standard contains.

And it not only prevents people in one jurisdiction from knowing what that standard is. It prevents people anywhere in the world from knowing. If an American jurisdiction has made innovations in public safety standards, no one else in the world can freely benefit from that knowledge in order to figure out whether their own local standards are sufficient. It's an absurd result – the purpose of copyright law is, after all, all about developing and disseminating knowledge – and it's one that hurts people. It is not something we should be encouraging copyright law, or any law, to do.

Filed Under: carl malamud, copyright, fire prevention, fire safety, grenfell, standards, uk