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.

The 5th Circuit in Veeck

[davidwr]

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:California Strikes Again

[Anonymous Coward]

The trick they try to do is contract state work out to private companies and then allow those companies to have the copyrights.

This is informative: Veeck vs. Southern Bldg Code [uscourts.gov] (case no. 99-40632-cv2):

The issue in this en banc case is the extent to which a
private organization may assert copyright protection for its model
codes, after the models have been adopted by a legislative body and
become âoethe lawâ. Specifically, may a code-writing organization
prevent a website operator from posting the text of a model code
where the code is identified simply as the building code of a city
that enacted the model code as law?

Re:Baffling

[autocracy]

The biggest issue comes down to things like building codes in small towns. They buy a model code from some company. See Veeck v. Southern Building Code Congress International, Inc. [cornell.edu]

Can't be done

[WingedEarth]

Copyrights do not protect statutory law, because the text and every word are purely functional. Laws are not written as original expression, they're written purely functionally, to serve a practical purpose. That's under federal copyright law. California could pass its own copyright law that doesn't have such limitations, but then the law would be violating 1st Amendment rights. Basically, all of copyright law is an exception to the 1st Amendment, which is only allowed according to the Constitutional authority that Congress has to pass copyright laws. Maybe the California State government isn't bound to the 1st Amendment (people think it is, because of the 14th Amendment), but that doesn't matter, because California's own constitution declares that, "A law may not restrain or abridge liberty of speech or press."

Re:Baffling

[geekmansworld]

"Gonna" is not an actual word.

Re:The 5th Circuit in Veeck

[Speare]

The 5th Circuit does not include California. California is part of the 9th Circuit. If the two courts disagree on a particular substantially similar issue, then it can be sent to the Supreme Court of the United States to be decided finally. This is the whole point of the Circuit Courts.

What bothers ME is this line from the summary above:

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 the submitter did indeed think that the copyright holder might lose their exclusive rights due to inaction, I have to ask, WHY IS THIS SO HARD TO UNDERSTAND? Copyright, Patent, Trademark, Secret. They all have very different legal semantics.

Re:I say let them copyright it

[AKAImBatman]

Out of curiosity, can anyone point me to a good history of when this became the standard?

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.

Re:Legal Publishers.

[Anonymous Coward]

Legal publishers aren't completely useless. In the UK new laws will often amend existing laws, for example by deleting and inserting sentences and paragraphs. When you have a whole chain of these laws it's almost impossible to make any sense of them, even if the text is online (which it is in the UK). The legal publishers do all the dull work of integrating all the amendments into a single text so you end up with something useful.

However, there is a project afoot to publish the edited texts online, and then the legal publishers will be pointless.

What the law actually says

[sampson7]

There are some serious misunderstandings of what is going on here. As discussed below, the law is clear that there is no legal right to copyright the text of a law. However, an entity can copyright the presentation and organization of those laws. As I understand what is actually happening here (notwithstanding the boneheaded and ignorant quote from the State of California spokesperson):

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:

The statute excludes from copyright protection ideas, procedures, processes, systems methods of operation, or information in the public domain. . . . If an idea is susceptible to only one form of expression, the merger doctrine applies and Sec. 102(b) excludes the expression from the Copyright Act. As the Supreme Court has explained it, this "idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression."

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:

Excluding "the law" from the purview of the copyright statutes dates back to this nation's earliest period. In 1834, the Supreme Court interpreted the first federal copyright laws and unanimously held that "no reporter has or can have any copyright in the written opinions delivered by this Court. . ." Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834). The case arose when one of the Court's official reporters was asserting copyright protection for his annotated compilations of Supreme Court opinions. The Court distinguished between the reporter's individual work and the Justices' opinions. The Court's rejection of copyright for judicial opinions paralleled the principle -- recognized by attorneys for both parties -- that "[s]tatutes were never copyrighted."(3) Based on the acknowledged and incontestable analogy with legislative acts, Wheaton held unanimously that "the law" in the form of judicial opinions may not be copyrighted.

The same broad understanding of what c

Re:California Strikes Again

[eosp]

You might find Gravel v. United States [wikipedia.org] amusing.

Re:HA HA Too Bad California

[Skagit]

Building codes, in most places, aren't written by the state. They're mostly adaptations of the International Building Code written by the International Code Council. The 2007 version of the California Building Code is the 2006 IBC with updates. The ICC says they own the copyright to the IBC (and they hold a trademark on it, too) in the hardcopy of the book. It may be that states charge exorbitant fees for a print copy because ICC charges the state.

By posting the CBC, you are certainly posting large portions of work copyrighted by the IBC. Some states publish an addendum to the IBC containing modifications of the IBC, essentially just a booklet saying, "replace section 1609.1.1 with the following...." Those are clearly written by the state and are public information.

Some states post their entire code online at the ICC website, such as Florida, New Jersey and Connecticut. You can read and print, but not save. New York City has their 2008 code (it is based on IBC with heavy modifications) up on the Department of Buildings website available for download. Washington, DC posts their modifications online at their own site. There doesn't seem to be a consensus as to the best way, just what each state wants. Each state has a differing degree of customization, from exact cut-and-paste of the IBC to very specific tailoring in in the structural section.

Re:California Strikes Again

[Anonymous Coward]

*Since the U.S. government said so*, 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)

Fixed that for ya. Governments decide their own rules, they don't all uniformly follow some civilized ideal. Canada has Crown Copyright (meaning Queen Elizabeth is one of the most prolific authors on the planet). Generally, the only Canadian government office that is permitted to charge money for the information it produces is Statistics Canada.

From http://publications.gc.ca/helpAndInfo/cc-dac/reproduction-e.html [publications.gc.ca]
Reproduction of Federal Law Order
As the result of the Order In Council that was passed in January of 1997, there is no requirement to seek permission to reproduce primary legal information of the Government of Canada and there are no applicable fees. The Reproduction of Federal Law Order [http://laws.justice.gc.ca/en/otherreg/SI-97-5/index.html] applies only to Government of Canada legislation, statutes, regulations, court decisions and tribunal decisions and authorizes anyone, unless otherwise specified, to copy federal legislation, statutes, regulations, court decisions and tribunal decisions without the usual restrictions that govern Crown copyright materials, provided that one is careful to ensure the accuracy of the materials reproduced and that the reproduction is not represented as an official version.

Re:California Strikes Again

[nsayer]

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...

The previous case -- Oregon

[coats]

IANAL, but... There is quite a bit of precedent here, and the general principle seems to be that such copyright claims are against public policy. Some commentary on a previous case (Oregon, also involving Justia and Carl Malamud) is as follows:

This was covered last April by William Patry (author of the text, Patry on Copyright), perhaps the most distinguished copyright attorney on the planet, see: http://williampatry.blogspot.com/2008/04/oregon-goes-wacka-wacka-huna-kuna.html [blogspot.com]

IMNHO, this kind of action, whether by California or Oregon, is an abomination, anathema to the idea of rule of law.

From Banks & Bros. v. West Pub. Co., 27 F. 50 (C.C.D. Minn. 1886):

[I]t is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws, or the official interpretation of those laws, should be co-extensive with the sweep of the maxim. Knowledge is the only just condition of obedience. The laws of Rome were written on tablets and posted, that all might read, and all were bound to obedience. The act of that emperor who caused his enactments to be written in small letters, on small tablets, and then posted the latter at such height that none could read the letters, and at the same time insisted upon the rule of obedience, outraging as it did the relations of governor and governed under his own system of government, has never been deemed consistent with or possible under ours... Each citizen is a ruler,--a lawmaker,--and as such has the right of access to the laws he joins in making and to any official interpretation thereof.

Re:California Strikes Again HOORAY!

[davidsyes]

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.

Where have I heard this before...?

[Guppy06]

Oh yeah, here! [slashdot.org]

7 years ago? God I'm old.

Re:California Strikes Again

[unfasten]

For it to count, a copy must be "embodied in a fixed medium." RAM and video RAM don't count.

Please see http://yro.slashdot.org/article.pl?sid=08/07/14/2313247 [slashdot.org]

"World of Warcraft owners Blizzard have won their case against the programmer who wrote Glider, Michael Donnelly. (We discussed the case here when it was filed.) Blizzard won on two arguments: first, that if a game is loaded into RAM, that can be considered an unauthorized copy of the game and as such a breach of copyright

Feds can't copyright, States can

[cenonce]

Unfortunately, many Slashdotters are misreading Section 105. That section of the Copyright Act applies only to the Federal government, NOT the several states, nor to local (county, municipal or borough) governments. I absolutely disagree with a state government claiming copyright on its own laws, but it is technically possible.

I have seen in other posts this Veeck case cited. I haven't read the whole thing, but just the summary tells me that the issue came down to a private company claiming copyright on laws that were codified by a legislature. That is not the same as a state claiming copyright in a document (any, document, including the text of a law) it has created. A Westlaw v. Lexis case (see "Legal Disputes" section here) [wikipedia.org] upheld copyright years ago on the entire work simply because Westlaw put casebook style page numbering in their version of the legal text. All Westlaw was doing was taking the government work and matching up the page numbers in their electronic version!

Like I said, I think this type of conduct is reprehensible from a state, but not technically illegal. Malamud is really (IMHO) banking on the PR nightmare of Cali actually filing a copyright infringement suit against him.

Delegation of Powers

[bill_mcgonigle]

I mean, why the fuck a county should regulate coffee machines instead of the state???

Because the State delegated the authority to the counties. Counties are creations of the State. Fortunately, in the Laboratory of Democracy you've got your choice of 50 States, all different (though none currently acting very sovereign when the Feds come knocking).

If your question had instead been, "why the fuck should coffee machines be regulated?" then I would have pointed you here [freestateproject.org].