This is clearly stated in the post, so not sure why you're calling it out in the comments as if we did not.
Because your headline incorrectly states that Malamud is being sued for publishing the law, when it's the annotations that are at issue. And because the post clearly, and incorrectly, stated (before you edited it) that annotations are used and cited as legal authority.
Many people disagree with you. Considering that these are the official annotations, released by the state itself as part of its official code of Georgia, then, yes, they are a part of the law.
Find me one attorney who says so. You already have at least two (myself and Martin Marshall) telling you that you're wrong. Annotations are a research tool, not legal authority.
Malamud's position seems to be similar to yours (though he does recognize that the annotations are not the law)--that since the state has adopted this particular annotated version of the code as the "official" version, other material that would ordinarily be copyrightable, isn't. This is a curious and novel interpretation of the law. I don't think he'll win on that theory, but I'd be interested to see how the case goes.
There are certainly arguments to be made in Malamud's favor, and good policy reasons supporting open access to the law for all. But it is simply incorrect to state, as you do in your headline, that he's being sued for publishing the law.
So anything that's published in the same volume with the law is automatically in the public domain? On what legal authority do you base this curious assertion?
Being a smartass only works when you're right. You aren't right. A government employee (i.e., somebody who's paid directly by the government) is not the same as an employee of a private corporation who has a contract with the government, even if that person spends all his time working on the government project (or even at a government facility). This distinction applies to employment law, tort law, copyright, and a host of other areas of the law.
But even if you were right that there's no difference, since this is a state government and not the federal government, that still wouldn't render the annotations public domain works.
Unless LexisNexis has recently been bought by the State of Georgia, this is incorrect. The editors are employed, in this case, by LexisNexis, who has a contract with Georgia to prepare the OCGA. One of the terms of the contract is apparently that the copyright on the OCGA belongs to the state of Georgia.
It's unclear how significant this distinction is at the state level. At the federal level, the original works of government employees, prepared in the scope of their duties, are not copyrightable, period. However, works prepared under contract for the federal government can be copyrighted, and the government can own those copyrights. Thus, at the federal level, this distinction would be critical.
At the state level, though, the rules aren't quite as clear. There isn't a bright-line rule that works created by state government employees aren't copyrightable, as there is at the federal level. So even if you were right that the editors were state employees, that would not mean that the annotations couldn't be copyrighted.
There may be (though I doubt it) a state which hires editors, as state employees, to annotate its codes, but Georgia is not that state.
The issue here is not the code itself, it's the annotations. An annotated code presents a code section (the law), followed by annotations, then the next section, then its annotations, and so forth.
As an example, a section of the Georgia code makes it illegal to drive while under the influence of alcohol or drugs. In the annotated version, that section will be followed by notes from cases discussing things like how it applies to driving in a parking lot, challenges to the use of the breathalyzer, admissibility of field sobriety tests, etc. These notes will each be a couple of sentences at most, and are (at least usually) prepared by privately-employed editors.
Annotations are not the law. They are not part of the law. They are, in short, brief summaries of how the law has been applied or interpreted by courts, agencies, law reviews, and other sources. In my years of practice, I've never seen a court cite an annotation as authority for any proposition, and there's no reason that a court would--after all, each annotation cites its authority.
In the olden days (i.e., before the days of electronic legal research databases), preparing annotations was extremely labor-intensive, and the labor in question was generally provided by attorneys and librarians. Not only was there the actual preparation of the notes, but the extensive cross-referencing was all done by hand. Now the cross-referencing is mostly automated, but you still have attorneys reading the cases and writing the notes.
If GA were suing over Malamud putting the code online, the case would be well into frivolous territory. But they aren't--they're suing over the annotations, which are a commercial product, and aren't the law. They may or may not win, but contrary to the headline, this isn't about Malamud putting the law online.
That's the breakdown of how subscription fees are distributed. The vast majority goes to the labels
The article states that a majority of the subscription fees goes to the labels. A majority is more than 50%. Thus, the article is incorrect. The point remains, however, that much more goes to the labels than anywhere else.
The article's point is correct. The wording used to express that point is incorrect.
Re: Suppose you're in an accident during Uber trip. Do you know whether you're insured?
As Uber's web site explains, yes, all Uber passengers are covered by Uber's commercial liability insurance. 15 seconds with Google (or other search engine of your choice) would have answered this question for you, but then you wouldn't have gotten to post your FUD twice.
Re: Uber is a Taxi company; not a software plTfoem
because the drivers are classified as "independent contractors" - an innovative way to screw the drivers out of minimum wage, overtime, social security and unemployment.
Which taxi drivers are not independent contractors? Whenever I've taken a taxi (which admittedly isn't that often), it's been pretty clearly posted that the cab is leased to the driver, making the driver an independent contractor. There may well be legitimate criticisms of Uber, and this may be one of them, but this doesn't distinguish them from legacy cabs as far as I can see.
How do you get to the conclusion that the author's use of the image was fair use? He used nearly the entire copyrighted work (except for the background), and he used it for purely commercial purposes (to help his book sell). The image wasn't in any way newsworthy, he wasn't commenting on it, and he wasn't making a parody of it. Fair use is an area of copyright law that's always kind of fuzzy, but I really don't see this fitting into it.
Of course, the fair use analysis is relevant only if the plaintiffs were suing over copyright, which they aren't. The suit is based on rights of publicity and invasion of privacy, both of which seem like at least reasonable claims, at least against the author.
Re: SO HOW AFFECTS KICKSTARTER WHICH RAKES TEN PERCENT OFF THE TOP?
What criminal law have Kickstarter's officers broken, which you think justifies tossing them in jail? You're exactly right--they provide a website and money transfers. What legal, much less criminal, obligation is there for them to provide more?
The service is really very similar to eBay. When eBay was younger, they didn't provide any checking or insurance either. In fact, they still don't provide any checking, but they do now offer limited insurance. They decided to do so voluntarily because they thought it was good for business (and I agree), not because they were legally required to.
Kickstarter provides a legal service, and gets paid for it. It seems you don't like the service they provide. That's the beauty of a (semi-) free market--you don't have to do business with them if you don't want to. And if you think you can do it better, you're free to try. But where do you get the idea that you (or the government) can force them to provide a service they aren't interested in providing)
Re: Re: Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
No, it isn't a circular argument. One of the (many) factors the IRS uses when determining whether an individual is an employee or a contractor is whether that individual's work-related expenses are reimbursed. Contractors' expenses generally are not, while employees' expenses generally are. No single factor is determinative, but all are considered. A number of these comments describe some of the factors.
Re: Re: Re: Re: Re: Techdirt, you screwed the pooch on this one
There is no requirement that an individual provide all required tools in order to be considered an independent contractor, nor conversely is there a rule that if the "employer" provides any or all of the required tools, the individual is an employee.
Really, that's the problem here. As with many areas of the law, there simply isn't a clear, objective rule. The IRS page cited upthread is a reasonable summary of the common law, and as it indicates, there are a bunch of factors to consider, weigh, and balance. The factors are not binary, and there is no set number that is determinative one way or the other.
So, if the employer tells you when and where to do the work, that's a factor suggesting that you are an employee (yes, setting your own schedule is very directly relevant--that link is to an IRS page). If you have to provide some, most, or all of the tools required to do the job, that's a factor suggesting (more strongly, the greater the proportion of tools you provide) that you're a contractor. If you do your own advertising and find your own customers, that suggests that you're a contractor. If you're paid by the hour for the time you're at work, that suggests you're an employee. If the putative employer is providing health care, vacation and sick time, and a 401(k), that suggests pretty strongly that you're an employee. If you have a risk of losing money on the deal, that suggests pretty strongly that you're a contractor.
And so on, and so on, and so on. There are lots of factors, and it's very fact-specific. You can't just focus on one, or a handful, and think that the issue's settled.
Re: Re: Even if he IS an employee, how's he eligible?
In the US, employment is usually "at will"--either the employee or the employer can end the relationship at any time, with any amount of (or no) notice, for any (or no) reason (except for the few legally prohibited reasons, like the race of the employee). If an employment contract specifies otherwise, that contract will usually control.
If you're terminated without cause (i.e., not for anything you did or failed to do), you don't have recourse against the employer (they have the right to do that), but you're eligible for unemployment. If you're terminated for cause that doesn't amount to misconduct (e.g., you just didn't perform very well), you're still eligible for unemployment. If you're terminated for misconduct, though (e.g., you threatened a customer, or you were stealing from the cash register), you aren't eligible for unemployment.
Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
TL;DR: If you read the links on the page you gave, you'll see that the law (as the IRS sees it) is nowhere near as clearly against Uber as you think it is.
First, the link you gave isn't to IRS regulations; it's an information page. Second, just as there are many definitions of personhood depending on the context (a corporation is a person for some purposes and not for others, for example), whether a person is an employee depends on large part on why you're asking--the IRS tends to be pretty expansive in defining employees, while many other contexts are less broad. Third, none of the three categories you give is nearly as clear as you're suggesting. On that page, each of the three categories you list is a link to another page with more detail, and in most cases that detail runs counter to the conclusions you've stated.
For behavioral control, the IRS page breaks it down into types of instructions given, degree of instruction, evaluation systems, and ongoing training. The following examples are given of types of instructions:
When and where to do the work. What tools or equipment to use. What workers to hire or to assist with the work. Where to purchase supplies and services. What work must be performed by a specified individual. What order or sequence to follow when performing the work.
Of these examples, only the last even arguably applies to Uber. The degree of instruction and ongoing instruction are both pretty minimal, and would likely favor a conclusion that the driver is a contractor. I don't know enough about the evaluation systems to say one way or the other.
Similarly, most of the aspects under financial point to a conclusion that the drivers are contractors. The IRS page breaks this subject down into significant investment, unreimbursed expenses, opportunity for profit or loss, services available to the market, and method of payment. Significant investment: the more you invest in your own tools and equipment, the more likely you are to be a contractor (Uber drivers use their own cars, a significant investment). Unreimbursed expenses: The greater the proportion of your unreimbursed business expenses, the more likely you are to be a contractor (Uber doesn't reimburse for any expenses, as I understand it). Opportunity for profit or loss: the possibility of incurring a loss is a strong indication that you're an independent contractor (clearly possible with Uber, just look at the story we're discussing). Services available to the market: Independent contractors typically advertise and seek out business on their own (Uber drivers don't generally do this). Method of payment: Employees are typically paid by the hour or by fixed salary, contractors are generally paid by the job (Uber's payment is closer to "by the job").
Finally, on "type of relationship", things get murkier. The first point the IRS uses is written contracts, and they appear to mention them only to say they don't pay attention to them. The existence of a written contract by itself doesn't make a person either an employee or an independent contractor, and what that contract says as to the individual's classification isn't binding on the IRS either. As to employee benefits, Uber provides only liability insurance, and coverage for the driver's vehicle while he's driving. No vacation, sick time, disability, retirement, etc. On permanency of the relationship, it clearly isn't. Drivers do, however, provide the key activity of the business.
There is an argument under all three areas for classifying Uber drivers as employees, but it's pretty weak. In each of those three areas, most of the details point toward independent contractor status, but there are some that would be consistent with being an employee.
On the post: Eight Years After Bogus Expulsion Over Supposed 'Threat,' Former Student Obtains $900k Settlement From University
Re: Re: Re:
On the post: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws
Re: Re: Annotations
Because your headline incorrectly states that Malamud is being sued for publishing the law, when it's the annotations that are at issue. And because the post clearly, and incorrectly, stated (before you edited it) that annotations are used and cited as legal authority.
Many people disagree with you. Considering that these are the official annotations, released by the state itself as part of its official code of Georgia, then, yes, they are a part of the law.
Find me one attorney who says so. You already have at least two (myself and Martin Marshall) telling you that you're wrong. Annotations are a research tool, not legal authority.
Malamud's position seems to be similar to yours (though he does recognize that the annotations are not the law)--that since the state has adopted this particular annotated version of the code as the "official" version, other material that would ordinarily be copyrightable, isn't. This is a curious and novel interpretation of the law. I don't think he'll win on that theory, but I'd be interested to see how the case goes.
There are certainly arguments to be made in Malamud's favor, and good policy reasons supporting open access to the law for all. But it is simply incorrect to state, as you do in your headline, that he's being sued for publishing the law.
On the post: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws
Re: To Antidirt
On the post: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws
Re: Re: Re: Re: Annotations
But even if you were right that there's no difference, since this is a state government and not the federal government, that still wouldn't render the annotations public domain works.
On the post: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws
Re: Re: Annotations
It's unclear how significant this distinction is at the state level. At the federal level, the original works of government employees, prepared in the scope of their duties, are not copyrightable, period. However, works prepared under contract for the federal government can be copyrighted, and the government can own those copyrights. Thus, at the federal level, this distinction would be critical.
At the state level, though, the rules aren't quite as clear. There isn't a bright-line rule that works created by state government employees aren't copyrightable, as there is at the federal level. So even if you were right that the editors were state employees, that would not mean that the annotations couldn't be copyrighted.
There may be (though I doubt it) a state which hires editors, as state employees, to annotate its codes, but Georgia is not that state.
On the post: State Of Georgia Sues Carl Malamud For Copyright Infringement For Publishing The State's Own Laws
Annotations
As an example, a section of the Georgia code makes it illegal to drive while under the influence of alcohol or drugs. In the annotated version, that section will be followed by notes from cases discussing things like how it applies to driving in a parking lot, challenges to the use of the breathalyzer, admissibility of field sobriety tests, etc. These notes will each be a couple of sentences at most, and are (at least usually) prepared by privately-employed editors.
Annotations are not the law. They are not part of the law. They are, in short, brief summaries of how the law has been applied or interpreted by courts, agencies, law reviews, and other sources. In my years of practice, I've never seen a court cite an annotation as authority for any proposition, and there's no reason that a court would--after all, each annotation cites its authority.
In the olden days (i.e., before the days of electronic legal research databases), preparing annotations was extremely labor-intensive, and the labor in question was generally provided by attorneys and librarians. Not only was there the actual preparation of the notes, but the extensive cross-referencing was all done by hand. Now the cross-referencing is mostly automated, but you still have attorneys reading the cases and writing the notes.
If GA were suing over Malamud putting the code online, the case would be well into frivolous territory. But they aren't--they're suing over the annotations, which are a commercial product, and aren't the law. They may or may not win, but contrary to the headline, this isn't about Malamud putting the law online.
On the post: Sony To Court: Of Course We're Allowed To Contractually Screw Over Our Artists
Re: Re: Majority
The article states that a majority of the subscription fees goes to the labels. A majority is more than 50%. Thus, the article is incorrect. The point remains, however, that much more goes to the labels than anywhere else.
The article's point is correct. The wording used to express that point is incorrect.
On the post: As Uber Crackdown In France Continues, Uber Downloads In France Reach Record Highs
Re: Suppose you're in an accident during Uber trip. Do you know whether you're insured?
On the post: As Uber Crackdown In France Continues, Uber Downloads In France Reach Record Highs
Re: Suppose you're in an accident during Uber trip. Do you know whether you're insured?
On the post: France Takes Its War On Uber Up A Notch: Arrests Top Execs
Re: Uber is a Taxi company; not a software plTfoem
Which taxi drivers are not independent contractors? Whenever I've taken a taxi (which admittedly isn't that often), it's been pretty clearly posted that the cab is leased to the driver, making the driver an independent contractor. There may well be legitimate criticisms of Uber, and this may be one of them, but this doesn't distinguish them from legacy cabs as far as I can see.
On the post: A Gronking To Remember Lawsuit Gets Strange While Amazon Argues Liability Would Chill Speech And Art
Re: Re:
Of course, the fair use analysis is relevant only if the plaintiffs were suing over copyright, which they aren't. The suit is based on rights of publicity and invasion of privacy, both of which seem like at least reasonable claims, at least against the author.
On the post: Huge Loss For Free Speech In Europe: Human Rights Court Says Sites Liable For User Comments
Re: "exercised a substantial degree of control over the comments published on its portal"
On the post: Creator Behind Crowd-Funded Boardgame That Failed To Materialize Draws Settlement Agreement From FTC
Re: SO HOW AFFECTS KICKSTARTER WHICH RAKES TEN PERCENT OFF THE TOP?
On the post: Creator Behind Crowd-Funded Boardgame That Failed To Materialize Draws Settlement Agreement From FTC
Re: SO HOW AFFECTS KICKSTARTER WHICH RAKES TEN PERCENT OFF THE TOP?
The service is really very similar to eBay. When eBay was younger, they didn't provide any checking or insurance either. In fact, they still don't provide any checking, but they do now offer limited insurance. They decided to do so voluntarily because they thought it was good for business (and I agree), not because they were legally required to.
Kickstarter provides a legal service, and gets paid for it. It seems you don't like the service they provide. That's the beauty of a (semi-) free market--you don't have to do business with them if you don't want to. And if you think you can do it better, you're free to try. But where do you get the idea that you (or the government) can force them to provide a service they aren't interested in providing)
On the post: US CIO Orders All .Gov Websites To Require Encrypted Connections, Amazon Enters The Secure Cert Space
Re:
On the post: Florida Agency Says Uber Drivers Are Employees, Not Contractors
Re: Re: Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
On the post: Roca Labs' Lawyer Accused Of Intimidation After Threatening Expert Witness With *Criminal* Charges Over Billing Rates
Re:
On the post: Florida Agency Says Uber Drivers Are Employees, Not Contractors
Re: Re: Re: Re: Re: Techdirt, you screwed the pooch on this one
Really, that's the problem here. As with many areas of the law, there simply isn't a clear, objective rule. The IRS page cited upthread is a reasonable summary of the common law, and as it indicates, there are a bunch of factors to consider, weigh, and balance. The factors are not binary, and there is no set number that is determinative one way or the other.
So, if the employer tells you when and where to do the work, that's a factor suggesting that you are an employee (yes, setting your own schedule is very directly relevant--that link is to an IRS page). If you have to provide some, most, or all of the tools required to do the job, that's a factor suggesting (more strongly, the greater the proportion of tools you provide) that you're a contractor. If you do your own advertising and find your own customers, that suggests that you're a contractor. If you're paid by the hour for the time you're at work, that suggests you're an employee. If the putative employer is providing health care, vacation and sick time, and a 401(k), that suggests pretty strongly that you're an employee. If you have a risk of losing money on the deal, that suggests pretty strongly that you're a contractor.
And so on, and so on, and so on. There are lots of factors, and it's very fact-specific. You can't just focus on one, or a handful, and think that the issue's settled.
On the post: Florida Agency Says Uber Drivers Are Employees, Not Contractors
Re: Re: Even if he IS an employee, how's he eligible?
If you're terminated without cause (i.e., not for anything you did or failed to do), you don't have recourse against the employer (they have the right to do that), but you're eligible for unemployment. If you're terminated for cause that doesn't amount to misconduct (e.g., you just didn't perform very well), you're still eligible for unemployment. If you're terminated for misconduct, though (e.g., you threatened a customer, or you were stealing from the cash register), you aren't eligible for unemployment.
On the post: Florida Agency Says Uber Drivers Are Employees, Not Contractors
Re: Sorry Techdirt, your bro love of Uber is blinding you to the law
First, the link you gave isn't to IRS regulations; it's an information page. Second, just as there are many definitions of personhood depending on the context (a corporation is a person for some purposes and not for others, for example), whether a person is an employee depends on large part on why you're asking--the IRS tends to be pretty expansive in defining employees, while many other contexts are less broad. Third, none of the three categories you give is nearly as clear as you're suggesting. On that page, each of the three categories you list is a link to another page with more detail, and in most cases that detail runs counter to the conclusions you've stated.
For behavioral control, the IRS page breaks it down into types of instructions given, degree of instruction, evaluation systems, and ongoing training. The following examples are given of types of instructions:
Of these examples, only the last even arguably applies to Uber. The degree of instruction and ongoing instruction are both pretty minimal, and would likely favor a conclusion that the driver is a contractor. I don't know enough about the evaluation systems to say one way or the other.
Similarly, most of the aspects under financial point to a conclusion that the drivers are contractors. The IRS page breaks this subject down into significant investment, unreimbursed expenses, opportunity for profit or loss, services available to the market, and method of payment. Significant investment: the more you invest in your own tools and equipment, the more likely you are to be a contractor (Uber drivers use their own cars, a significant investment). Unreimbursed expenses: The greater the proportion of your unreimbursed business expenses, the more likely you are to be a contractor (Uber doesn't reimburse for any expenses, as I understand it). Opportunity for profit or loss: the possibility of incurring a loss is a strong indication that you're an independent contractor (clearly possible with Uber, just look at the story we're discussing). Services available to the market: Independent contractors typically advertise and seek out business on their own (Uber drivers don't generally do this). Method of payment: Employees are typically paid by the hour or by fixed salary, contractors are generally paid by the job (Uber's payment is closer to "by the job").
Finally, on "type of relationship", things get murkier. The first point the IRS uses is written contracts, and they appear to mention them only to say they don't pay attention to them. The existence of a written contract by itself doesn't make a person either an employee or an independent contractor, and what that contract says as to the individual's classification isn't binding on the IRS either. As to employee benefits, Uber provides only liability insurance, and coverage for the driver's vehicle while he's driving. No vacation, sick time, disability, retirement, etc. On permanency of the relationship, it clearly isn't. Drivers do, however, provide the key activity of the business.
There is an argument under all three areas for classifying Uber drivers as employees, but it's pretty weak. In each of those three areas, most of the details point toward independent contractor status, but there are some that would be consistent with being an employee.
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