7/30/13

Malamud "Respectfully Declines" Georgia's Request To Remove Official State Code

Atlanta - Downtown: Georgia State Capitol - House Chamber
Image [cc] Wally Gobetz
Well, it didn't take very long for Carl Malamud to respond [PDF] to the cease and desist letter from Georgia Code Revision Commission Chairman, Joshua McKoon. I applaud Malamud's resolve and willingness to call the State of Georgia out on its request, and its claim to copyright on the official state laws.

Malamud immediately comes back on the State's copyright claim by stating "It is a long-held tenet of American law that there is no copyright in the law." He goes on to site court decisions backing his argument, and also points out that the "unannotated" version that the State provides online for free is a poor substitute for the official law and that to use the unannotated would place the user at a higher risk of peril. The money quote is:
No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law.
The State of Oregon held similar claim to their official state code, and after conducting a hearing where they "listened to citizens and to their own legislative counsel, kindly invited [Public.Resources.Org] to speak, and at the end of the day unanimously waived any assertion of copyright in the Oregon Revised Statutes."

Malamud states that this type of dissemination of the law should be something that states should encourage and support, not send out threats and prosecute.

I have to say that I agree wholeheartedly. Good luck Carl!

Here is a reprint of Malamud's letter. The PDF version is online at law.resources.org.


Hon. Joshua McKoon,
Chairman Georgia Code Revision Commission
319-A Coverdell Legislative Office Building
Atlanta, Georgia 30334

Hon. David Ralston
Speaker of the House
House of Representatives of Georgia
Atlanta, Georgia 30334

Hon. David Shafer
President Pro Tempore
Georgia State Senate
321 State Capitol
Atlanta, GA 30334

Dear Senator McKoon, Speaker Ralston, and President Pro Tempore Shafer:

Public.Resource.Org is in receipt of the communication of July 25, 2013 from Senator McKoon concerning your notice of purported copyright infringement. Your notice claims copyright infringement for the publication of the Official Code of Georgia Annotated. Your letter claims “all copyrightable aspects of the Official Code of Georgia Annotated are copyrighted under United States copyright law” and disclaims any copyright “in the statutory text itself or in the number of the Code sections.”

We respectfully decline to remove the Official Code of Georgia Annotated and respectfully reject the distinction between “the statutory text itself” and additional materials, as both are integral part and parcel of the only Official Code of Georgia Annotated, such material constituting the official law as published by the State.

It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.

This principle was strongly set out by the U.S. Supreme Court under Chief Justice John Marshall when they stated “the Court is unanimously of opinion that no reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court specifically extended that principle to state law, such as the Official Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244, 1888) , where it stated that “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”

This principle has become embedded clearly throughout our country. The Court of Appeals for the Sixth Circuit has stated that “any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual.” Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (Harlan, J.). These strong precedents are reflected in the official policy statement of the U.S. Copyright Office: “Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.” Compendium II: Copyright Office Practices § 206.01 (1984)

The principle that there is no copyright in the law, and that no license is therefore needed, has been fundamental to the evolution of our legal system. West Law could never have built that magnificent edifice of American jurisprudence, the Federal Reporter, if each court had imposed restrictions on promulgation. If citizens are required to obtain a permission before repeating the law, does that not strike at the very heart of our rights of free speech under the First Amendment? If ignorance of the law is no excuse, how can we restrict dissemination of those laws?

The distinction between “the statutory text itself” and additional materials perhaps would have some bearing if the publication in question were the independent commercial endeavor of a publication firm. If such a firm were to copy the state statutes and compile that information with additional analyses and summaries and were to do so as a strictly commercial endeavor, we understand and respect that this material would be their private property.

However, the publication in question is not by some independent endeavor, it is by the Official Georgia Code Revision Commission and the document is clearly labeled as the official Official Code of Georgia Annotated. Your hired sub-contractor states this clearly in their marketing materials:

“The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme.” [Emphasis in the Original]

The Official Code of Georgia Annotated is a publication of the State and it is the definitive statement by the State of the law. Any lawyer would ignore this publication and any of its components at his or her peril. Any citizen wishing to read the Official Official Code of Georgia Annotated would have trouble distinguishing between the “statutory text itself” and those materials outside the box. No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law.

Your letter also notes that “the unannotated Georgia Code…is available to the public at no charge at www.legis.ga.gov.” In addition to numerous technical and usability deficiencies, this site is subject to two different terms of use. The first, which must be accepted before entering the site, stresses that only “the latest print version” of the Code is official and authoritative. The second set of terms has 8 parts and 35 subparts and permits only “insubstantial” uses and even prohibits use of the Code in “newsletters” and “articles.” As you can see, when copyright prohibits citizens from speaking the law of the land, substantial concerns are raised under the U.S. and Georgia Constitutions.

A similar situation occurred in the great state of Oregon when we received a Cease and Desist notice on April 7, 2008 for publishing online the Oregon Revised Statutes. As with the present situation, lawyers for that state demanded licenses as a condition to publication and attempted to make a distinction between the law and the additional organization of that material by the Legislative Counsel of Oregon.

I am pleased to tell you that the State of Oregon decided that this was an issue that should be decided by the people of Oregon and their elected officials. The Speaker of the House and the Senate President called a hearing of the Legislative Counsel Committee, listened to citizens and to their own legislative counsel, kindly invited us to speak, and at the end of the day unanimously waived any assertion of copyright in the Oregon Revised Statutes.

Not only was copyright waived, something very special happened. With the restrictions on use of the Oregon Revised Statutes lifted, a law student at the Lewis & Clark Law School was able to take this material and develop a vastly better version of the Oregon Revised Statutes for the people of his state to use. Restricting use of the codes restricts innovation, making it harder for citizens and lawyers to know and understand the law. Restrictions on the Official Code of Georgia Annotated hurts democracy and the citizens of Georgia by making their laws less accessible.

In Oregon, the assertion of copyright dated back to the 1940s and the state had carried that policy forward. When the people of Oregon looked at the issue in the light of our modern era, the decision was very clear. Is it not time, in light of developments such as the Internet, to revisit those restrictions?

Our publication of the Official Code of Georgia Annotated should be encouraged, not threatened. Our publication of the Official Code of Georgia Annotated is unimpeachable act, not one that should be prosecuted. I would be more than happy to come to Georgia to discuss the matter with you, and would strongly encourage you to discuss the issue with the people of Georgia.

Sincerely yours,

Carl Malamud

Public.Resource.Org

 

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4 comments:

Mark Gediman said...

So...I wonder how the sub-contractors will react to this? They have long asserted that the annotations are a "value-add" that allows them to assert a copyright privilege over the code publications. I personally think that Malamud is fighting the good fight here.

Anonymous said...

Bravo, Mr. Malamud! When ignorance of the law is no excuse, suppression of the law is inexcusable.

Jeff Pfeifer, LexisNexis said...

Of interest on this topic is a deeper explanation of the State of Georgia's position by State Sen. McKoon, Chairman of the Georgia Code Revision Commission. In response to questions from a local blog, Peach Pundit, Sen. McKoon commented:

“The State of Georgia owns the copyright to the non-statutory materials, such as case annotations, notes, etc., that are included in the Official Code of Georgia Annotated. These aspects of the O.C.G.A. are not part of any statutory language. To put it another way, no one is asserting that the actual text of any Georgia statute is copyrighted.

However, the non-statutory content (produced for the state as a work-for-hire by the enormous efforts of a private third party) is protected by the state’s copyright. That copyright allows the state to enter into an arrangement with a private company to manage and publish the O.C.G.A. The official publisher’s only compensation from the state for its enormous work each year is the exclusive distribution right which the state, as owner of the copyright, grants to that publisher. This arrangement was set up to avoid the necessity of having to spend taxpayer funds to compensate the publisher. If the state were to fail to defend its copyright, the practical consequence would be the state would have to take on all of the effort to update maintain the O.C.G.A. as well as publication costs. This would undoubtedly increase the cost to individual taxpayers for the state to shoulder this burden. Furthermore, the state would likely lose the royalties it currently receives from the official publisher for sublicensing the O.C.G.A. to others. It would therefore be shirking our duty both under existing contracts as well as our fiduciary duty to taxpayers to get the most value for every tax dollar entrusted to us not to fully prosecute our copyright to the copyrightable aspects of the O.C.G.A. That is why we transmitted a cease and desist letter and will take further action as required to protect the copyright in this matter.”

See http://www.peachpundit.com/2013/07/31/who-owns-the-copyright-to-the-ocga/.

Jeff Pfeifer
VP, Primary Law
LexisNexis

Richard Gadsden said...

Some people should learn some history.

This is a return to the Twelve Tables; it took a secession of the plebs and nearly a civil war for Rome to get public law. Let us hope that the state of Georgia proves more wise than the patricians of ancient Rome.

 

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