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Don't Share That Law! It's Copyrighted
Posted by
timothy
on Wed Sep 03, 2008 01:32 PM
from the there-would-be-these-rules-that-everyone-knows dept.
from the there-would-be-these-rules-that-everyone-knows dept.
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.
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Submission: Dont share that law!!! It's copyrighted. by Anonymous Coward
[+]
Professor Posts "Illegal Copy" of Guide To Oregon Public Record Laws 318 comments
An anonymous reader writes "Copyright law has previously been used by some states to try to prevent people from passing around copies of their own government's laws. But in a new level of meta-absurdity, the attorney general of Oregon is claiming copyright over a state-produced guide to using public-records laws. That isn't sitting well with one frequent user of the laws, who has posted a copy of the guide to his website and is daring the AG to respond. The AG, who previously pledged to improve responses to public-records requests, has not responded yet." The challenger here is University of Oregon Professor Bill Harbaugh.
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California Strikes Again (Score:5, Insightful)
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 [cornell.edu])
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 (Score:5, Insightful)
"I'm sorry, your honor, I didn't have enough money to know what laws I broke.
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Re:California Strikes Again (Score:5, Funny)
You could violate any copyrights you want, and when they try to cite the copyright laws, BAM!
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Re:California Strikes Again (Score:5, Interesting)
Stop giving them ideas!
I'm only half joking too. It wouldn't surprise me if a state sooner or later started demanding a special and mandatory tax for giving its citizens access to its laws, or demanded a fee from lawyers who shared information about laws with their clients.
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Re:California Strikes Again HOORAY! (Score:5, Informative)
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.
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Re:California Strikes Again HOORAY! (Score:5, Insightful)
You do know the inspectors and such just weren't being bribed properly, don't you?
They're not holding out to mask some "-ism", they're holding out for cash. They aren't getting the few hundred or whatever it may be) they expect, so they're punishing your friends with thousands in construction do-overs. Yes, local politics is quite corrupt, just about everywhere.
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Re:California Strikes Again HOORAY! (Score:5, Interesting)
Someone I used to know back in the day built a porch add-on to their house. As everyone knows, there's plenty of codes to follow. He went down to city hall, got the necessary paperwork and guidelines, and built his porch. A month later, the city came and demanded that he knock it down, as it was too close to the road.
He told them where he got the records, from city hall itself. He showed them the copies he made showing the rule he supposedly broke (too close to the road). The city told him that the book was old, and the law had since been revised. He got the whole "It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'"
In the end the city made him remove the porch and he never built it back. Eventually, he sold his house and moved.
The worst part about it is that the city couldn't be bothered to keep its laws publicly-available, but they can sure as hell enforce them.
How many of you know the laws of your own city? What about important laws, such as traffic laws? Do you know, down to the letter, what your major and minor traffic laws are? What about self-defense? Do you have to run from an attacker or can you reasonably defend yourself if attacked? This is what I hate about laws in general. Rarely are they concise and simple to understand, but its difficult to get the exact text of the law in a lot of places.
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Re:California Strikes Again HOORAY! (Score:5, Interesting)
...that counties will de-certify or simply not approve equipment ....
An entrepreneur could ask for PERFORMANCE specifications, rather than a specific manufacturer or model.
Some years ago, we had an enterprising man build some tree-houses and then rent them to tourists. The county wanted to make him tear them down, because they were not built according to the normal building codes that ordinary houses are built. The county took him to court hoping to get their way. His contention was that they were just as safe if not safer than a normal house. To make a long story short, the judge said that because there were no codes for tree-houses, does not automatically allow the county to forbid them. He further ordered the county to work with a man and his engineers to develop proper codes especially for tree houses.
Since trees are natural and varied, with all sorts of shapes and sizes, it was not possible to easily come up with fixed rules of materials and how they are used. Trees also tend to sway in the wind, and the rules have to allow for that fact. Therefore, the codes they came up with do not specify materials or construction techniques, but performance specifications such as load, flexibility and other pertinent factors.
The same sort of principles should be applied in most areas. Instead of specifying a specific manufacturer for fire suppression equipment, specification serve water flow and coverage and other factors germane to extinguishing possible fires should be done. Someone with sufficient money and tenacity can force in court, the authorities to formulate rules in that way. This allows for new, innovative ways of meeting the goals of the safe and functional construction and business.
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Re:California Strikes Again (Score:5, Funny)
"It is illegal to be poor. Off to the spice mines with you!"
*shudder*
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Re:California Strikes Again (Score:5, Informative)
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...
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Re:California Strikes Again (Score:5, Insightful)
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.
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Re:California Strikes Again (Score:5, Funny)
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Re:California Strikes Again (Score:5, Insightful)
Oh, man. Don't get our hopes up!
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Re:California Strikes Again (Score:5, Insightful)
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.
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Re:California Strikes Again (Score:5, Interesting)
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Re:California Strikes Again (Score:5, Interesting)
And I would say that putting it into a law explicitly removes the copyright.
Yes, I am asserting that legislators can place ANY document of any sort into the public domain by incorporating it into a law or the legislative record. Legislators do this all the time to dodge copyright claims against whistleblowers.
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Re:California Strikes Again (Score:5, Insightful)
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).
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Re:California Strikes Again (Score:5, Insightful)
The memo to get milk is MORE copyrightable than the laws.
The only way a law could be copyrighted is if they were works of art (poems or some such) and assigned to an individual or corporation (IE, not a government). And in that case if it belongs to an individual, how could it be a state law?
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Re:California Strikes Again (Score:5, Funny)
Your post made me think two things.
1) Don't corporations own most of our laws?
2) How awesome would it be if all laws were required to be in the form of a limerick?
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Re:California Strikes Again (Score:5, Funny)
It could be cool:
The act of ending a life
When aggrevated by previous strife
Or in the course of a crime
Shall result in a time
Spent as a large convict's wife.
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Re:California Strikes Again (Score:5, Insightful)
Exactly. How do the creators of this portion of the law think their laws are not public domain? You know, 'government for the people by the people'; therefore any law created by the government is for and by the people and thus public domain.
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Re:California Strikes Again (Score:5, Funny)
The people must have access to laws in order to obey them.
Communist! Laws should be kept secret so that terrorists can't abuse them. Whenever someone is arrested they should have to prove that what they did is not illegal; if they can't afford to buy official Law Books they are obviously parasites expecting to get something for free.
Ignorance is Freedom!
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We understand (Score:5, Funny)
Webster copyrighted "ridiculous" and you didn't have the money to pay for a license, so you created your own word.
The purpose of copyright is to encourage creativity. See, it works!
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Re:California Strikes Again (Score:5, Funny)
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Re:California Strikes Again (Score:5, Interesting)
For a good time, type :% into the Chrome address bar. Down she goes! I guess some Google beta products are more beta than others.
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Re:California Strikes Again (Score:5, Funny)
That's because Chrome is built on top of vi.
In vi :% makes you select the entire range of text, so this obviously means that you are trying to select TEH ENTIRE INTARWEB!!!111
So Chrome runs out of memory and crashes.
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Re:California Strikes Again (Score:5, Insightful)
This is not so much as a step towards a Police State as it is the results of using standards created by a private entity or corporation as law. There is no problem as such using these standards (the regulations and standards have been developed by Engineers and experts that know what they are doing) -- the problem is adapting them as law, then requiring payment to be able to follow the law.
This is wrong -- any and all laws need to be freely available online to those who are bound by them, so any privately developed codes need to be freely available once they are passed as law. Any right to copyright should be dropped at this point. I can understand charging a reasonable fee ($2315 for the printed version of California code is NOT reasonable) for a printed version or a CD/DVD, but online access should be free.
If the standards bodies didn't want to lose their copyright, then they should not have allowed their work to become law. The states would then have to come up with their own experts and create a freely available code. This is a problem that needs to be addressed, but it is not intentional evil by the State or Feds.
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Re:California Strikes Again (Score:5, Insightful)
No offense, but I am not beholden to the crown. The crown may do as she pleases since she is not a duly elected representative. In fact, she is the heir to a consolidated power base that is very much self-serving. She can become as rich or as poor as she pleases, as long as she remains in power.
The United States fought a rather difficult war to free itself from the crown. Thus the only thing the US Government is beholden to is the principles upon which it was founded and the people who elect its officials. The US Government could try to remove its self-imposed law, but the Supreme Court would smack it down rather quickly. That's why the particular law I quoted is more of a guideline to prevent confusion rather than a true act of government.
Now state governments are technically mini-nations in the U.S. However, they are all signatories to the U.S. Constitution and thus will be held accountable to that Constitution as long as they are members of the United States.
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Playing With Fire (Score:5, Funny)
I wouldn't keep prodding Arnold like that.
Not illegal (Score:4, Interesting)
> It is illegal to copyright the law since people are required to know it.
Copyrights on laws may be unenforceable but they are not illegal.
Re:Not illegal (Score:5, Interesting)
I'd ask this question: who owns the copyrights? I'd say it's the taxpayers .
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Re:Not illegal (Score:5, Funny)
Copyrights on laws may be unenforceable but they are not illegal.
I sure am glad you popped up to split that hair. Without comments like this, where would we be?
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Re:Not illegal (Score:5, Insightful)
I'm confused, why are you saying its not illegal?
According to the link posted at the top, it is very clear that copyright protection is NOT available for laws specifically.
US.Code-Title 17.Chapter 1.Section 105:
"Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
This clearly states that the government is permitted to receive and hold copyrights for any work that is not created by the United States government (such as from a musical group or author) but works written within the government (such as tax forms and US codes) are NOT protected.
Is there a code that can be sited that contradicts this?
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Re:Not illegal (Score:5, Insightful)
This law is a work of the California state government, not the U.S. Government, so that section doesn't automatically apply.
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Baffling (Score:5, Interesting)
This view by certain US states that laws are copyrighted material is plexing to me. The laws are written by people, on materials, that are funded by the taxpayer. Therefore, laws are PUBLIC property.
And what point does copyrighting ones' laws serve? Is it about publication rights? If ignorance of the law is no excuse, then why is access not free to all.
Baffling.
Re:Baffling (Score:5, Informative)
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Re:Baffling (Score:5, Interesting)
This happens all the time. The judiciary doesn't want to deal with people - they want to deal with lawyers.... who get paid by the people.
I once had to fight a ticket in a small town traffic court. I requested a deposition via registered mail, and in my state, if the deposition isn't sent within 30 days the ticket becomes defective. It had been almost 2 months, and I still didn't have it.
As my court date approached, I took the issue up with the town clerk (who only worked a few hours, four days a week). She had never heard that they needed to send out the depositions before the court date (kind of hard to defend oneself without knowing the officer's account), but said she would take it up with the judge. In the meantime, I sent the court, again by registered mail, a notarized motion to dismiss on the grounds that the ticket was defective.
After another week of trying, the secretary finally caved and gave me the judge's work number (he owned the gas station in the town). He was unclear on the particulars of depositions, so he pushed my court date back and then he added:
"You know, you're not really following the proper procedures."
"OK. What are the proper procedures?"
"I can't tell you."
So, it comes as no surprise that government wants to hide laws from the people.
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The 5th Circuit in Veeck (Score:5, Informative)
In Veeck v. Southern Building Code Congress International [google.com], the 5th Circuit held that laws are not copyrightable.
I didn't read the opinion but I'm pretty sure they had precedent.
Re:The 5th Circuit in Veeck (Score:5, Insightful)
Malamud wants California to sue him, which is almost a given if the state wants to continue claiming copyright.
This sounds like the usual misunderstanding. Copyright, unlike Trademark, remains in force even if not actively defended. The holder of the copyright could lay low forever, and only sue those who they want to sue.
If they don't sue him, he'll publish all their laws online and the issue becomes moot.
I imagine if California thinks there is a real copyright claim, they'll sue before that happens.
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I say let them copyright it (Score:5, Insightful)
That would mean that "ignorance of the law" IS a valid excuse.
Re:I say let them copyright it (Score:5, Insightful)
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.
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Re:I say let them copyright it (Score:5, Insightful)
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
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Re:I say let them copyright it (Score:5, Insightful)
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. [wikipedia.org]
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.
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Re:I say let them copyright it (Score:5, Informative)
Go back to Hammurabi [wikipedia.org]. 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.
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Lock him up! (Score:5, Funny)
Carl Malamud is aiding the terrists! If the laws are freely available to be known by the public, the terrists will find out and obey them to avoid being caught!
Legal Publishers. (Score:5, Interesting)
Until quite recently many states (Pennsylvania being the last) did not post their laws online at all or make them available to the public for free. In many cases the only way to get access to the actual laws was to purchase a copy from the state's legal publisher or look them up in a legal library, (which exists on ever street corner). This is as true for statutes of the type that Malamud is focusing on as caselaw which is an essential facet of law in the U.S. and other Common Law countries.
Efforts to change this have routinely been fought by legal publishers who hold lucrative monopolies on the publication of laws and their dissemination. There also exists a generational gap in many cases with a generation accustomed to having the law on paper not really understanding why one would look online.
So ironically what Malamud is doing is not "fighting for the norm" of freely accessible laws but fighting for something new. While many people are fond of the cant "ignorance of the law is no excuse", for most of recent U.S. history laws have been hidden.
Good luck to him.
So Officer What Did I Do? (Score:5, Interesting)
What the law actually says (Score:5, Informative)
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:
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:
Re:What the law actually says (Score:5, Insightful)
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. :
So you CANNOT claim copyright on a simple alphabetical listing of names and phone numbers because it is not original or creative enough.
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Re:Wasting his time? (Score:5, Insightful)
A douchebag for "civil disobedience" and standing up against a ridiculous law? I guess Rosa Parks (and all the others that did similar, before and after) was a douchebag who should have not coaxed the state into throwing her into prison wasting taxpayer money...?
He's doing a very important thing because by challenging the law he's effectively testing it and him winning means other people won't be intimidated by this bullshit--you say he should avoid breaking this obviously bogus, incredibly idiotic law, but then, you're just saying that people should bend over backwards to accommodate the state's stupidity. Thus the only time the law would be tested would be, ironically, in a case of ignorance of the law, in a case where the law is copyrighted. Heh!
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