Don't Share That Law! It's Copyrighted

Nathan Halverson writes "California claims copyright to its laws, and warns people not to share them. And that's not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him, which is almost a given if the state wants to continue claiming copyright. He thinks a federal court will rule in his favor: It is illegal to copyright the law since people are required to know it. Malamud helped force the SEC to put corporate filings online in 1994, and did the same with the patent office. He got the Smithsonian to loosen its claim of copyright, CSPAN to stop forbidding people from sharing its videos, and most recently Oregon to quit claiming copyright on state laws." Malamud's talk at Google ("All the Government's Information") is also well worth watching.

Comments

The 5th Circuit in Veeck

[davidwr]

In Veeck v. Southern Building Code Congress International, the 5th Circuit held that laws are not copyrightable.

I didn't read the opinion but I'm pretty sure they had precedent.

Re:Baffling

[autocracy]

The biggest issue comes down to things like building codes in small towns. They buy a model code from some company. See Veeck v. Southern Building Code Congress International, Inc.

Re:I say let them copyright it

[AKAImBatman]

Out of curiosity, can anyone point me to a good history of when this became the standard?

Go back to Hammurabi. As a king of Babylon, he felt that ignorance of the law was not an excuse for not following it. Thus he constructed massive stone tablets in the center of his cities that displayed the law for all to see, so that no one could argue that they were ignorant of the law. This was the basis for the doctrine of "ignorance of the law is not a defense."

It didn't take long for the complexity of laws to outstrip the ability of governments to easily publish them in public. Thus Hammurabi's idea of a public display was replaced by the doctrine of public access to laws. Citizens in most countries are expected to keep informed of the latest laws by requesting copies from their government. Traditionally, the governments provided these laws at no charge, or merely for the cost of publication.

What the law actually says

[sampson7]

There are some serious misunderstandings of what is going on here. As discussed below, the law is clear that there is no legal right to copyright the text of a law. However, an entity can copyright the presentation and organization of those laws. As I understand what is actually happening here (notwithstanding the boneheaded and ignorant quote from the State of California spokesperson):

1. The State of California provides selected vendors with up-to-date and easy-to-reproduce electronic versions of State laws in exchange for a payment.

2. The vendor then formats and compiles these laws, and includes them in its proprietary database. Lexis-Nexis, the vendor in this case, also provides the public with free access to a limited version of its database, while providing enhanced access through a pay service.

3. In exchange for the payment, the State of California agrees not to provide the same service it provides to Lexis, Westlaw, etc. for free.

What the legal gadfly here is really protesting is the sale by the State of California of copies of its laws that are in a usable form. Anyone is free to comb the public records maintained by the State Legislature and compile its own California Code. These documents are all publicly available and posted as soon as they are passed by the Legislature. What the Legislature provides, however, is not easy to read and not organized in a particularly sensible manner. The State essentially provides the service of compiling these laws and sells that compilation to Lexis. It is this compilation that the State is claiming a copyright on -- not the text of the laws themselves.

In the most famous Supreme Court case on this topic, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), the Justices held that no one can hold a copyright in a particular phone number. However, a company can collect tens of thousands of phone numbers, organize them alphabetically, and then claim a copyright in the finished product (i.e., the phone book). As the court in Veeck v. Southern Building Code Congress International, Inc. describes the holding of the Feist case and subspequent precedent:

The statute excludes from copyright protection ideas, procedures, processes, systems methods of operation, or information in the public domain. . . . If an idea is susceptible to only one form of expression, the merger doctrine applies and Sec. 102(b) excludes the expression from the Copyright Act. As the Supreme Court has explained it, this "idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."

What the author of the TFA did get right is that there is no right to copyright the text of particular laws. The court in Veeck did an excellent job describing the history of attempts to copyright laws, so I simply quote it below:

Excluding "the law" from the purview of the copyright statutes dates back to this nation's earliest period. In 1834, the Supreme Court interpreted the first federal copyright laws and unanimously held that "no reporter has or can have any copyright in the written opinions delivered by this Court. . ." Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834). The case arose when one of the Court's official reporters was asserting copyright protection for his annotated compilations of Supreme Court opinions. The Court distinguished between the reporter's individual work and the Justices' opinions. The Court's rejection of copyright for judicial opinions paralleled the principle -- recognized by attorneys for both parties -- that "[s]tatutes were never copyrighted."(3) Based on the acknowledged and incontestable analogy with legislative acts, Wheaton held unanimously that "the law" in the form of judicial opinions may not be copyrighted.

The same broad understanding of what c

Re:California Strikes Again

[eosp]

You might find Gravel v. United States amusing.

Re:California Strikes Again

[nsayer]

Nope. The copyright act of 1977 said that that sort of thing doesn't count as "copying." For it to count, a copy must be "embodied in a fixed medium." RAM and video RAM don't count. Loading a program from the hard disk doesn't count as "copying" for the purpose of copyright law, nor would receiving and displaying it over a network, so long as you don't affix the received copy.

This does bring up the sticky issue of the browser cache, of course... If it's on the hard disk, then it is affixed...

Re:California Strikes Again HOORAY!

[davidsyes]

Now, I hope he goes after county health regulations for FORCE the counties across the country to once and for all MAKE AVAILABLE not only the regulations/ordinances that say what must be done in order to obtain the permits to operate restaurants and businesses, but also to records of WHAT equipment and fixtures are approved.

I knew a team of young, ambitious Asians (4-8 people) in the Central Valley who in 2000-2001 were trying to open an internet cafe. They hired a respected architect, followed all the know/anticipated rules, and STILL the county planner/permits office kept sending them back to correct things. They even added MORE space than required for ADA-protected patrons and were made to rip out work completed in order to please the county. It was rumored that the head had a friend also opening an internet cafe and he was helping out his friend have less competition. How? Well, if he kept sending them back to do rework, he could burn up their cash and force them to quit. But, these kids were resourceful, determined, and NEEDED to form a business to make money to pay for school and to live.

It is QUITE FUCKING SPECIOUS for counties to deny access to records of APPROVED coffee machines, ice makers, display fridge units, toilet heights flexibility ranges, hand rails range of heights for wheel chair users, reach-in fridge units, and so on. Every time a county planning/permits office functionary rejects plans or revisions to be redrawn, it costs the entrepreneur money in attorney's fees, architect's fees, county inspector fees, time and money lost on start-up delays, and the appearance of entrepreneur unprofessionalism in the eyes of would-be patrons chafing for a place to open its doors. Money is even lost when a toilet 1/2 inch too high is tossed out for another one.

It is as if these people pay gate-keeper of the beholden information as if to mask racism or any other -ism used to suppress or oppress anyone not liked, anyone who demands to be respected, anyone who challenges the county's decision on the plans or modifications not significantly differing from originally-approved plans. I realize, too, that many counties these days computerize the floor plans of EVERYTHING BUILT, ostensibly to facilitate firefighters and law enforcement. Yeh, like they really need to know WHERE the business/home vault is, or if there is a sanctuary from burglars/robbers/cops/et al.

If all that stuff is in a database, then virtually ANYONE following the then-current ordinances should be able to walk into the planning office with a set of complete working/construction drawings without having to fuck around weeks on end wondering why the hell they are losing tens of thousands of dollars before they even open to the public. If such obstructive officials DO exist, they should be sued, THEIR assets taken or frozen or transferred to the aggrieved, and possibly, the offending officials should be jailed post-haste and barred from EVER AGAIN serving in a public official/functionary position in the COUNTRY not just the county.

They got their shop opened up, but they paid dearly for it in money wasted. I gave them a copy of my own internet cafe business plan (spread sheet/stock rotation planning/customer flow modeling & employee head count to cope, and 2 of my new, paid-for computers just to help them out because i was fucking incensed that they were going through that shit. I wasn't going to be able to get started, but boy I was going to make sure I helped them out any way I could before and after startup.