Reselling Free Government Data — Yes, It Stinks… But, It's Not Theft

Almost all those books…
government created content that someone paid for!
I am a huge proponent of state governments helping their citizens understand the judicial system, and help with the access to justice, but I think that a recent action from the State of Montana is sliding down a slippery slope in its actions to enforce copyright on its forms listed through the State's Law Library website. The Readers' Digest version of the situation is that the Montana State Law Library created a legal forms data bank, claimed copyright to those forms and specifically stated that the forms could not be sold in commercial format. Like and any red-blooded American company, an operation out of Helena, Montana took those free forms, repackaged them and sold them for $389. And, as any red-blooded American would do in response, the State of Montana sued the company for copyright infringement. (See the whole story here.)

My feelings are similar to my fellow Texan, Don Cruse:
I agree the forms should be free & that people shouldn't be misled into paying for free forms. So the intent is noble enough. But it's still awkward to see a state agency wielding copyright over state-published legal materials.
I think that the State of Montana's heart is in the right place in trying to protect its citizens against paying for things that it can get for free, but at the same time, there has to be a point in which when citizens are better informed about how to access justice, whether for free or for a fee, trumps the paternalistic view of the State that  it alone should be the educator of its people.

Let me make this point clear — All Government Information Should Be Available To Its Citizens In An Easy-To-Use Format, and Free — however, there should be absolutely no limitation on the public to repackage this information and resell it to those same citizens. In a private email, my co-blogger, Toby Brown says it best:
Companies resell govt content all the time - usually with some value-add like Westlaw. They [the governments] are just upset since stupid people pay them.
Just as you can't protect your children from making bad decisions, State governments just can't expect to sue every company for reselling government created content. Yes, your citizens should be better informed that they can get the same information for free, but just as every parent experiences, sometimes you just got to be grateful that they got to the right place, even if they did it in a dumb and costly way.

Claiming copyright on information that was created in the environment of a government action… paid by government officials, either through tax payer money, or filing fee collections… that information belongs to everyone. That includes those that are smart and creative enough to repackage that information and sell it to those that are not smart enough to realize they can get that information for free.

Again, I'm a big believer that government information should be free, but I'm also a big believer that government information should be freely available for anyone to use for private or commercial purposes. As the old saying goes, you can lead a horse to water, but you can't make it drink. I applaud Montana's effort to make its information free and accessible to its citizens (or anyone with Internet access), but I think they are entirely mis-guided in thinking that anyone that repackages this same information for profit is a charlatan. I would argue quite the opposite… they are assisting governments in providing access to justices, and should not be punished for that effort.

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Judy Meadows said...

It would be best to check facts before making statements, such as the snarky comment, “They [the governments] are just upset since stupid people pay them” should check their facts before making fools of themselves. These forms are prepared and vetted by a variety of entities, primarily Montana Legal Services, and posted on the State Law Library of Montana's website for people who cannot afford attorneys. The forms have copyright protection specifically so that Legal Zoom and others cannot make a fast buck off the backs of the poor. And it wasn’t a Helena firm that did it. The most recent incident involves a local phone number that rings to a Florida firm, and it is that firm we have the judgment against.

Nathan said...

Interesting topic, but there is more going on here than simply adding value to a repackaged free resource (such as headnotes to a case) and charging for that convenience and repackaging. I disagree with the position that government should stand idle when one of their publicly funded access to justice initiatives is undermined by unethical players seeking to make a fast buck that risks reversing the desired positive impact of the initiative. Presumably the fancy new forms were designed to be easy for the poor to use and file. Is there an element of passing off here? Correct me if I'm wrong, but didn't the firm advertise in the phone book as "Legal Aid Assisted"?
Yeah, I don't buy the argument that "they are assisting governments in providing access to justice, and should not be punished for that effort." Access to justice implies affordable access. Would anyone tolerate someone who took used donations from the food bank and resold it from a food cart marked "Food Bank Assisted"?

Greg Lambert said...

I think everyone's heart is in the right place, but repackaging the information and selling it doesn't prevent anyone from gaining access to the free content. Therefore, the analogy to the food bank just doesn't hold water, as they are not taking the original (free) items out of circulation. What would be trying to sue a supermarket for selling cheese to a person instead of directing them to identical cheese for free from the state.

If the Montana Legal services (which I assume is a private entity) were the one to bring the lawsuit, then I think that holds water. If the State of Montana is bringing the lawsuit, claiming that the State holds copyright, then this is that slippery slope I mentioned.

I know I'm ticking off some friends right now by taking up this approach to States copyrighting information, or claiming copyright on behalf of private entities, but I think it is a good conversation to have, as once a State draws this line, even with the best intentions, it can create a situation where access to justice is actually reduced because States are usually not as good at disseminating that information to those who need it most.

Nathan said...

I take your point that "once a State draws this line" it is dangerous precedent... for who will trust the benevolence of the enforcing authority in another scenario where the equities are not so cut and dry (or even when they are)? That said, is this really precedent setting?
In any event, a traditional copyright scheme fails to address the subtleties of this problem. Court forms, legislation and reasons for judgement should almost be open source... but only almost. A better model would be a creative commons licence where commercial use was prohibited.
Anyway, I will abandon the food bank analogy to the extent that online forms are clearly not cans in finite supply. It's mostly the passing off, consumer protection element that bugs me here. People can be easily confused, and the vulnerable deserve protection from the State... especially to ensure there is minimal confusion about their options under the law, and to disabuse them of the insidious perception that even the legal forms cost an arm and a leg!

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