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Don't Share That Law! It's Copyrighted 481

Posted by timothy
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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Don't Share That Law! It's Copyrighted

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  • by AKAImBatman (238306) * <.akaimbatman. .at. .gmail.com.> on Wednesday September 03, 2008 @01:32PM (#24862771) Homepage Journal

    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.

  • by FredFredrickson (1177871) * on Wednesday September 03, 2008 @01:38PM (#24862847) Homepage Journal
    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.
  • by Rob Kaper (5960) on Wednesday September 03, 2008 @01:42PM (#24862899) Homepage

    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.

  • by Jailbrekr (73837) <jailbrekr@digitaladdiction.net> on Wednesday September 03, 2008 @01:44PM (#24862941) Homepage

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

  • by 2nd Post! (213333) <gundbear@pacbe l l . n et> on Wednesday September 03, 2008 @01:44PM (#24862955) Homepage

    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?

  • by philspear (1142299) on Wednesday September 03, 2008 @01:44PM (#24862959)

    Having little understanding of my state's governance, I would hazard a guess that this isn't something that's been thought out by anyone of a very high rank. This seems more like a mid-level management decision, or rather the equivalent of that in government. In other words, this seems like bureaucracy doing it's thing, not using common sense as that generally gets you in trouble. It's not suprising to me anyway that a "mid-level" bureaucrat would copyright the laws without having a reason to do so. Why not, it's taxpayer money.

    That could be naive: I'm suggesting it's not california government out to trip you up because you have to follow laws you can't know about so much as california government not being able to put their shoes on before they tie them. I admit I'm prone to believe in government incompetence before government conspiracy.

  • by WgT2 (591074) on Wednesday September 03, 2008 @01:52PM (#24863115) Journal

    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.

  • by ConceptJunkie (24823) on Wednesday September 03, 2008 @01:52PM (#24863117) Homepage Journal

    I would hazard a guess that this isn't something that's been thought out by anyone of a very high rank...

    Two thoughts occur to me. First, most laws are of that caliber. It's well known that at the Federal level, legislators haven't, and in many cases, would not be capable (due to the sheer volume of many bills), read the laws they are voting on.

    The second thought is that even if it were thought out by someone of high rank, it would probably wouldn't help.

  • by WgT2 (591074) on Wednesday September 03, 2008 @01:53PM (#24863141) Journal

    Oh, man. Don't get our hopes up!

  • by Indagator (1266958) on Wednesday September 03, 2008 @01:54PM (#24863169)

    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:Not illegal (Score:4, Insightful)

    by neoform (551705) <djneoform@gmail.com> on Wednesday September 03, 2008 @01:57PM (#24863207) Homepage

    If a law is unenforceable, how can it be a law?

    It's illegal to commit suicide, but, what's the punishment and how can you carry it out? Therefore, you can infer that it is not actually illegal. (the attempt might be on the other hand)

  • by gstoddart (321705) on Wednesday September 03, 2008 @01:57PM (#24863231) Homepage

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

    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

  • by morgan_greywolf (835522) on Wednesday September 03, 2008 @02:00PM (#24863263) Homepage Journal

    That's right, amazingly enough nobody is expected to know their municipal [laws] by heart...

    Oh? Really? So you can claim ignorance of municipal and civil laws?

    Try explaining that to the next cop who's about to write you a ticket for a civil infraction.

    "Oh, but officer, I didn't know that you had to obey the speed limit! I thought that was just a guideline!

    Or how about to the impound yard after you've parked your rotting hulk of a car on the street for more than 10 days without moving it. Yep, that's a municipal law.

     

  • by MindlessAutomata (1282944) on Wednesday September 03, 2008 @02:01PM (#24863311)

    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!

  • by Thelasko (1196535) on Wednesday September 03, 2008 @02:08PM (#24863409) Journal

    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.

  • by genner (694963) on Wednesday September 03, 2008 @02:09PM (#24863419)
    His goal is to get Californaias laws placed online which will never happen as long as it's illegal to be viewable to everyone for free. Such a project would cost quite a bit, and no one is going to risk putting in the effort if there's risk of it being shutdown.
  • by Qzukk (229616) on Wednesday September 03, 2008 @02:14PM (#24863515) Journal

    Coaxing the state government in to suing him will just cost the tax payers extra money

    Then maybe, just maybe, California should drop its claim of copyright, instead of suing him to hang on to their useless claim. What an amazing idea! He's not the "douchebag" here.

    because it is affecting no one.

    And you know this because everyone who it could possibly be affecting would be rich enough and willing to take the time to fight it in court?

    Court battles aside, on the face of it, you're wrong. Everyone who has ever had to pay an architect (who in turn has to pay for the current building codes and therefore passes that charge on) has been affected, and that's just the start. Everyone who has hired a lawyer in California has paid to cover that lawyer's access to the law, and everyone who has ever paid for the law is directly affected.

  • by db32 (862117) on Wednesday September 03, 2008 @02:33PM (#24863825) Journal
    What the hell are you talking about? Copyright, is the right to print copy of said copyrighted material. This isn't trade secret law (nor would it matter, because a company may have to reveal a trade secret to a judge to show that someone else stole their trade secret, this would not invalidate their trade secret). I don't need copyright to read a book, I need copyright to PRINT a book. He is breaking the law by reproducing their copyrighted material and hoping they will sue him for it so he can have the copyright on laws thrown out. They do not lose any rights by "revealing the copyright". That would mean an author would lose his copyright on a work the moment he printed it. Methinks you need another look at what copyright actually means before you go making jokes about others getting hit in the head.
  • by TubeSteak (669689) on Wednesday September 03, 2008 @02:35PM (#24863853) Journal

    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.

  • Re:Baffling (Score:4, Insightful)

    by lgw (121541) on Wednesday September 03, 2008 @02:37PM (#24863885) Journal

    To be fair to the states, it's simply impossible to write English that is both simple and unambiguous. I spent some time an a standards committee, and learnd that the most clear and simple phrases can be misunderstood in ways that are quite surprising, but make sense in hindsight. For laws, serious money will be spent looking for ways to deliberately twist the meaning of the wording of the law, so it's an even harder task to make the wording unambiguous.

    Word sand expressions in English are simply too flexible to write a law in simple, clear terms. You'd find 50 diferent interpretaitons of the law that were each consistant with the wording.

  • Re:Not illegal (Score:5, Insightful)

    by databank (165049) on Wednesday September 03, 2008 @02:37PM (#24863889)

    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?

  • by Dragonslicer (991472) on Wednesday September 03, 2008 @02:42PM (#24863971)

    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.

    How sad of a commentary on the American legal system that people see a need for a constitutional amendment to ensure that citizens can read laws.

  • by Gonarat (177568) * on Wednesday September 03, 2008 @02:47PM (#24864041)

    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.

  • by PinkPanther (42194) on Wednesday September 03, 2008 @02:53PM (#24864121)

    Yes, parts of government continuously look like a joke and not serious business

    There, fixed it for you.

  • by Cobralisk (666114) on Wednesday September 03, 2008 @03:08PM (#24864321)
    Weird, crashes before you hit enter. So much for each tab on a different process too.
  • by nmos (25822) on Wednesday September 03, 2008 @03:12PM (#24864387)

    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.

  • by mr_mischief (456295) on Wednesday September 03, 2008 @03:14PM (#24864405) Journal

    The issue with Hanlon's Razor is that whether it's malice or stupidity for a motive, the actions can harm you just as much.

    The issue with your corollary is that whether it's stupidity or greedy self-interest, the actions can harm you just as much.

    The motives can help you understand an action and may even help you reason with the person committing them. However, even if someone's intent is generous and helpful, they can still harm you. People mustn't let the fact that a motive is not malicious deter them from discouraging harmful acts.

  • Re:Not illegal (Score:5, Insightful)

    by JesseMcDonald (536341) on Wednesday September 03, 2008 @03:17PM (#24864441) Homepage

    This law is a work of the California state government, not the U.S. Government, so that section doesn't automatically apply.

  • by sm62704 (957197) on Wednesday September 03, 2008 @03:23PM (#24864559) Journal

    I agree, but the difference is if a person's actions are from incompetence or ignorance you can educate them and avoid future harm, but if the action is from greed you're going to have a hard time stopping it.

    Some may be acting out of malice or greed, but claim ignorance when confronted.

  • by Jim Robinson Jr. (853390) on Wednesday September 03, 2008 @03:41PM (#24864825)
    Hmmm... that is an interesting concept. For an attorney to practice law in any state, he/she must pay a "mandatory tax" in the form of a yearly state licensing fee. Only then can the law be shared. Nah... it'll never work!
  • by AKAImBatman (238306) * <.akaimbatman. .at. .gmail.com.> on Wednesday September 03, 2008 @03:53PM (#24864973) Homepage Journal

    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.

  • by nevergleam (900375) on Wednesday September 03, 2008 @03:59PM (#24865047)
    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).
  • Bad Journalism (Score:3, Insightful)

    by Hjalmar (7270) on Wednesday September 03, 2008 @04:06PM (#24865137)

    That article is so full of inaccuracies it's astounding.

    First: with the exception of the Building Code, California's laws (regulations, specifically) are not copyrighted. They're also free on the Internet, and can be downloaded for free, and saved on your local computer for free. A Google Search for "california regulations" will give you a variety of free sources, including the state's own Office of Administrative Law.

    Except for the Building Code. Here the article's alarmist tone (and Malamud's apocalyptic stance) are entirely justified. The California Building Code was written by the International Conference of Building Officials, and the ICBO owns the copyright. It's stupid, and probably illegal, but that's the way things stand.

    The 5th Circuit case someone mentioned is a similar circumstance. But unfortunately (for those of us in California) California is in the 9th Circuit, so the 5th Circuit's decision doesn't apply.

  • by lgw (121541) on Wednesday September 03, 2008 @04:24PM (#24865381) Journal

    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.

  • by AKAImBatman (238306) * <.akaimbatman. .at. .gmail.com.> on Wednesday September 03, 2008 @04:25PM (#24865389) Homepage Journal

    So what you're saying is that I should have no right to review the laws of California before making a decision to move there? In fact, I must pay for the laws before I can make the decision to be constrained by them.

    Furthermore, you're telling me that an out of state court case tried upon California legal code would require the participants in the case to pay for copies of the laws being tried? Also commonly, you're telling me that I cannot cite precedent using California law without paying for it? Or argue the merits in council or senate sessions of my local laws compared to California laws without having a "public performance" license?

    Here's an interesting thought for you: Let's say that California does publish laws under state copyright laws. I publish one of their laws freely in another state. Does California's copyright law extend to my state? Can they sue me over copyright infringement? If they do, am I required to pay for the laws I am being sued under so that I can defend myself? If they cannot, what is the point of their state copyright law if it does not apply to citizens of California?

  • by drsmithy (35869) <drsmithy@nOSPam.gmail.com> on Wednesday September 03, 2008 @04:43PM (#24865613)

    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:Baffling (Score:3, Insightful)

    by Anonymous Coward on Wednesday September 03, 2008 @05:09PM (#24865947)

    "I can't tell you."

    So, it comes as no surprise that government wants to hide laws from the people.

    You're drawing the wrong conclusion from that exchange.

    The judge in your contested ticket can't provide you with legal assistance in preparing or executing your defense or otherwise pursuing litigation on that matter.

    What you should have done was contacted an attorney, law school, or legal aid clinic in the area for help.

    He wasn't hiding anything from you. In fact, what he said was helping you, although you apparently missed it. He was telling you that you were not conducting yourself in compliance with the established procedures--something which could have prevented you from prevailing in the ticket appeal if for some reason the ticket turned out not to be defective. It's also possible he was telling you that it's rarely appropriate to call the judge presiding over your case. You address your communications formally, in writing, to the court.

  • by Anonymous Coward on Wednesday September 03, 2008 @07:40PM (#24867649)

    the one that some schmuck was sued for informing either his client, or for informing his lawyer or something for (it was reported here, and I'm too tired to dig)?

    This is inevitable.

    Secret Laws are the means of the secret police state.

    Ask the citizens of the former "soviet union" about secret laws.

    America couldn't possibly pass up that kind of tradition of authority..

  • by TheVelvetFlamebait (986083) on Thursday September 04, 2008 @04:58AM (#24871269) Journal

    How do you know? Have you worked in or with local governments "just about everywhere"? Or are you just presenting some random libellous navel-gazing as fact?

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