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

California Strikes Again

[AKAImBatman]

Is this a joke? Laws are not "Science" or "useful Arts" as defined in the Constitution. They are practical communications between the government and its people. Since the government is both serves its people and is funded by its people, it cannot hold a copyright. This has been recognized at the Federal level for... oh... ever. ( 105. Subject matter of copyright: United States Government works)

I'm all for state powers, but this is simply rediculous. Even if we assume a valid legal theory exists that allows states to hold copyrights over works created by public officers, laws themselves are still not considered works of art or science any more than a memo reminding my wife to get milk is considered copyrightable.

Of course, being a lawyer and/or lawmaker is a skilled trade. So the argument could be made that the text is the result of those skills. I still don't think it can be copyrighted, but let's say a judge disagrees with me. Well then, what of fair use? The people must have access to laws in order to obey them. Thus laws must be communicated in the open to all citizens under the fair use doctrine.

Under the 4 point balance test, the nature of the works (i.e. laws) is factual and thus not allowed copyright protection. (see: Time Inc. v. Bernard Geis Associates) The purpose of reproducing the laws is that it is information required by the public. The amount copied is irrelevant in this case, as the entirity of the law is required information for every citizen. Last but not least, the value of the law should only be in its improvement upon society, not a dollar value placed upon its reproduction. Coming back to the point the citizens PAID to have those laws created, it only follows that they should not be further charged to obtain copies of them.

Re:California Strikes Again

[FredFredrickson]

If he loses, it will be interesting to use "ignorance of the law" as a defense.

"I'm sorry, your honor, I didn't have enough money to know what laws I broke.

Re:California Strikes Again

[Rob Kaper]

Is this a joke?

Yes, parts of government increasingly look like a joke and not serious business, let alone representation of its citizens (and not: subjects).

But you basically already answered that by elaborating on the common sense you'd expect to be applied to matters like that, but didn't find.

Re:California Strikes Again

[nevergleam]

The article summary mentions building codes, which is an industry standard. I have knowledge of building codes being a structural engineer so I use them as an example to help frame my arguments.

The 2007 California Building Code is not copyrighted. However, it draws almost exclusively from the International Building Code (IBC), which is copyrighted and published by the International Code Council (ICC). ICC is a non-profit organization dedicated to the development of model building codes as well as the testing and approval of construction products. The ICC has no financial interest in what it does (in principle), and makes legitimate use of copyright to continue its work.

Should government should be allowed to adopt and enforce copyrighted works as law? If so, who should be responsible for the costs of distributing the law to the citizens? I do not believe that a work should lose the property of being copyrighted when entered into the law; however, it could easily be argued as legally allowable under the guise of eminent domain. The state, and thus its citizens, should realize the fact that adopting copyrighted material as law requires them paying for it. The ICC and all other organizations that develop industry standards should reevaluate whether it is ethical and/or reasonable to create and copyright material which is intended to be adopted into law.

In the end, it is what Weaselmancer brought up in a sibling post: a "broken business model." I believe the state should budget and pay the code councils to do the work and get it distributed rather than indirectly and unequally tax their constituency by making them pay for the published materials (I disclose that I am one of those being disproportionately taxed).

Re:California Strikes Again

[drsmithy]

The dutch have a great solution to ignorance of the law. Dutch citizen are legally obligated to be familiar with the law. Pleading ignorance of the law is admitting a crime!

What is the extent of "familiar" in this context ? The entire legal code of pretty much any country is too vast and nuanced for even an expert with years (if not decades) of experience to understand, let alone the layman.

The only people who seriously believe "ignorance of the law is not a defense" are those who wish to use it as a tool of oppression.

Re:I say let them copyright it

[Indagator]

That would mean that "ignorance of the law" IS a valid excuse.

Don't be ridiculous; it means you'll have to pay an additional licensing fee to read the citation against you.

Re:I say let them copyright it

[Thelasko]

No, it's just an indication of which way we're going.

You've broken a law we can't tell you about, but you're guilty anyway. You're not allowed to tell someone else we've arrested you for the law, since the law precludes that. We can't give your lawyer a description of the law or the charges against you because the law precludes that.

Sadly, I think that's the PATRIOT act. :(

Cheers

It's not the PATRIOT act because the PATRIOT act is published. But there is proof of such law in Gilmore v. Gonzales.

I'm generally against more laws, but if there ever was a constitutional amendment I could get behind, it's that all laws should be available to the public without charge.

Re:What the law actually says

[nmos]

Hold up a minute. You say:
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).

But that's NOT what the Supreme Court said, at not the way I read it. :

[55] Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement.

So you CANNOT claim copyright on a simple alphabetical listing of names and phone numbers because it is not original or creative enough.