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Are laws public domain?
April 23, 2008 1:05 PM   Subscribe

In the spirit of those who have patented living organisms, the State of Oregon Legislative Counsel Committee is demanding $30,000 from Justia.com for the right to publish Oregon Revised Statutes -- the laws of Oregon -- on their website for two years.

To be exact, the committee does not claim copyright in the laws themselves, but "a copyright in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents as are the work product of the Committee in the compilation and publication of Oregon law." The correspondence.

That's the same theory that West Law Co. has used to maintain a monopoly over legal decisions for years, though their power is eroding.

Criticism: Citizen Media Law Project -- The Patry Copyright Blog ("Oregon goes wacka wacka huna kuna") --
ars technica -- The Washington Times -- Info/Law

Support (sort of): Oregon Legal Research (blog)
posted by msalt (36 comments total) 2 users marked this as a favorite

 
The idea conflicts directly with the fact that all persons are charged with knowledge of the law in both criminal and civil contexts.
posted by Ironmouth at 1:10 PM on April 23, 2008 [3 favorites]


Does this not also conflict with the notion that this info was paid for, and therefore is owned by, "the public?"
posted by ZenMasterThis at 1:15 PM on April 23, 2008 [3 favorites]


I thought everything the guvment authored would be per se public domain but wevs.
posted by norabarnacl3 at 1:18 PM on April 23, 2008


So the C&D says that Justia put their own copyright notice on each page? What's that about.
posted by cashman at 1:18 PM on April 23, 2008


I read about a case in CA where someone put the CA building codes on line, which had been written by a 3rd party, and that third party claimed copyright. But it seems as though Oregon is actually claiming copyright on the organization of the code, including numbering and tables, not the text of the code itself.

But if you ever read legal code, it's full of cross references where each law links to other parts of the law by number (i.e. "You may not carry a weapon as defined by section 123.abc"), which would make legal code without section numbering somewhat useless.
posted by delmoi at 1:24 PM on April 23, 2008


This is great, and it doesn't even need to be keyword searchable. Once you've got the public domain material online, uncoupled from the commercial databases' proprietary information, John Q. Public can just use West's or LEXIS's hard-copy indexes--which all public libraries can afford, not just the few-and-far-between law libraries--to find the cases or statutes that he needs. It's not like having to have full sets of codes and reporters in the stacks; you just need a couple of shelves.

I can see why the commercial database companies could be concerned, but I think the lawyers that are worried about this need not worry at all. Most John Q. Publics still know very little about what they're looking at even when they've gotten the legal source they need.
posted by resurrexit at 1:28 PM on April 23, 2008


(I'm not talking directly about Oregon, but about the larger Westlaw issue from the fourth link.)
posted by resurrexit at 1:29 PM on April 23, 2008


legal code without section numbering [is] somewhat useless

Exactly. As I understand it, the legislature sets the actual section numbers and official subjects of the laws. So the organization in this case simply means listing them in numerical order and indexing by the official subjects. Not a lot of value-added there.
posted by msalt at 1:29 PM on April 23, 2008


If only the people of Oregon could somehow pay for all this information themselves, why, then they'd own it and they could do whatever they want with it! They could make a system where everyone contributes some of their earnings to the state each year, and it would pay for copies of these laws so that the Oregonians would know what they are. If there's money left over, they could also fund the government.

How else would anyone find out that it's against the law to fish with canned corn in Oregon?

Seriously though, it should be illegal to enforce laws if it's not trivially easy for everyone to find each and every law on the books. Access to the lawbooks should be job zero in a system of rule by law.
posted by mullingitover at 1:45 PM on April 23, 2008 [3 favorites]


That settles it. It's every good MeFite's duty to post the complete set of Oregon laws on his/her website.
posted by ZenMasterThis at 1:54 PM on April 23, 2008 [1 favorite]


I thought everything the guvment authored would be per se public domain but wevs.

True of the federal government, but not necessarily of individual state governments.
posted by Blazecock Pileon at 2:09 PM on April 23, 2008


Access to the lawbooks should be job zero in a system of rule by law.

You'd think so, but no. Laws exist to make sure that oppression is doled out in correct proportion, by the correct cadres. It has nothing whatsoever to do with such outmoded ideals as "justice" except insofar as it helps ensure the relevant lobbyists are egalitarian in their largesse.
posted by aramaic at 2:19 PM on April 23, 2008 [3 favorites]


I in turn am going to sue Oregon; their capital's called Salem, which was my great-great-great grandfathers name. Now, bear in mind, I'm not saying I own the name 'Salem', but the shape of the letters as they are spelled out in English.

They need to change the name of that town, or pay me a 10 million dollar license fee.
posted by quin at 2:27 PM on April 23, 2008


it's against the law to fish with canned corn in Oregon

I actually support that law. You should see what the metal ridges do to their little throats...
posted by msalt at 2:36 PM on April 23, 2008 [1 favorite]


To be exact, the committee does not claim copyright in the laws themselves, but "a copyright in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents as are the work product of the Committee in the compilation and publication of Oregon law."

nothing to see here. the site allegedly took the compilation, prefatory and explanatory notes, tables, annotation, etc in whole and published them without permission. you can't do that without violating copyright. grab a bresser's, a phone book, or say, the hollins radio data "police call" directory of public service radio frequencies and throw it online and see how long before the lawyers descend. all of the information in these compilations is publicly available, but the work produced by gathering, arranging and annotating the information is certainly an original work.

this isn't a question of the law being under copyright. you want to publish a compilation on the web, you better do yourself some compiling. this post is misleading outragefilter.
posted by quonsar at 3:16 PM on April 23, 2008 [1 favorite]


Like most of the other ridiculous "rights" tacked on to copyright law by various publishing industries, copyrights on databases are not long for this world. We've seen the future of copyright, and its ticker symbol is "GOOG."
posted by sdodd at 3:26 PM on April 23, 2008


grab ... a phone book... and throw it online and see how long before the lawyers descend.

It'd be a very long time, since at least in the US, the Supreme Court has made it utterly clear that this is perfectly legal. Compilation in and of itself is not copyrightable in the US; there must be selection, editing, etc.- something creative.

But hey, don't let pesky facts get in your way, quonsar ;)
posted by louie at 3:30 PM on April 23, 2008


Actually Quonsar, no. I work for the Oregon State Bar, for God's sake, and we had to negotiate with this committee to put the Oregon Revised Statutes on a nonprofit legal research webpage we provide for the use of Oregon lawyers.

And no, we were not copying annotations etc. That paragraph you quote is taken from the cease and desist letter sent by the legislative committee. In my humble opiniion, it puts their argument in the best possible light.

If I were myself an attorney I would also argue that the work of the legislative counsel is a work for hire and therefore the property of their employer -- the public.
posted by msalt at 3:33 PM on April 23, 2008 [2 favorites]


I'm cynical about the gummint. It seems to me that lately (at least it is true here in King Co., Washington) our local rulers spend most of their energy thinking of ways to put money in the Gen. Fund, since it is now very impolitic to go for more or higher taxes.
posted by yazi at 3:34 PM on April 23, 2008


I would also argue that the work of the legislative counsel is a work for hire and therefore the property of their employer -- the public.

an excellent point, indeed.
posted by quonsar at 3:37 PM on April 23, 2008 [1 favorite]


The problem with some "compilations" of public works is that they can play havoc with the creativity requirement for Copyright protection. This is pretty complicated stuff, but it's well demonstrated by another recent case, City of New York v. Geodata Plus, LLC, No. 03-CV-3560 (DLI)(VVP), 2007 WL 2891427 (E.D.N.Y. Sept. 28, 2007). Geodata involved the City's publicly available tax maps which the City had digitized (actually vectorized via a point-and-line digitizer, not a scanner) and was selling. A company called Geodata hired a bunch of Kyrgyzstanian (yes) programmers to make its own vectorized versions of the City tax maps, and the City cried foul, asserting that the programmers had simply copied the City's data. The argument was not over whether there had been copying (the Court found that there had been) but over whether the vectorization process added sufficient creativity to the new format to create a newly copyrightable work.

The flip side of the "creativity" question is something called the "merger doctrine" which holds that if there is only one good way to express an idea, then that expression has "merged" with the idea and cannot be copyrighted. If the vectorized maps are the only useful digital representation of the tax lot data, they can't be copyrighted. If Oregon's digital compilation is the only useful way to create a searchable, hyperlinked version of the (public domain) laws, then a merger doctrine argument may be available. (Question: Is the merger doctrine a bar to copyrightability or a defense to infringement? Answer: Shut up, you IP wonk.)

The court in Geodata rejected both of these arguments and ruled that the digitized versions of the City's tax lot maps (paid for by taxpayers) were protected by copyright and that Geodata had infringed. So the thin end of the wedge is New York City, not Oregon. (Surprise!)

P.S. yes I wrote an article about this for the New York Law Journal. I'd post it but they own the copyright.
posted by The Bellman at 3:41 PM on April 23, 2008 [2 favorites]


"P.S. yes I wrote an article about this for the New York Law Journal. I'd post it but they own the copyright."

Well, then excerpt it for news and commentary value.
posted by klangklangston at 4:34 PM on April 23, 2008


There is some IP protection for databases outside of normal copyright law as well. here is some information I googled up, I don't know much about the topic.
posted by delmoi at 4:40 PM on April 23, 2008


Almost all states (maybe all of them) have copyrighted their statutes, although federal statutes, case law, and regulations are public domain. Oregon's not close to being the worst offender here-- Arizona wanted even more for copying their statutes, and Texas, for a long time, insisted that West actually owned the copyright to their codes. The royalty is chump change to West and Lexis (who, it's rumored, pay far less than the "market" rate, with some non-monetary compensation thrown in), and it's meant to keep competitors, such as Justia, out. Justia's management had to have known that the copyright was claimed and, I'm guessing, went ahead and published them to challenge the copyright claim.

Very few states actually publish their own laws (in paper form) except in the raw form that comes from their legislatures (Missouri is an exception, but they make a tidy profit selling sets of our statutes for $330 a set, which does NOT include the right to copy them). All states do publish their statutes online, so it's not as if they're unavailable to the public. Here's Oregon's. Note the copyright claim.
posted by missouri_lawyer at 6:58 PM on April 23, 2008


"we can't tell you what you've been arrested for, it'd be a violation of copyright"
posted by pyramid termite at 8:42 PM on April 23, 2008


Seriously, though, wouldn't government be *so* much more efficient if we just privatized all of it?
posted by uosuaq at 8:47 PM on April 23, 2008


C'mon people, think! If we let laws be freely copied and distributed then for what reason would anyone make them? For the public good? HAH!
posted by Citizen Premier at 8:53 PM on April 23, 2008 [1 favorite]


Note the copyright claim.

It reads "The Legislative Counsel Committee claims copyright protection in those parts of Oregon Revised Statutes that are legally subject to copyright protection." Which would be none of them, in my opinion.

Put it this way. The Oregon State Bar is a branch -- technically, an "instrumentality" - of the Oregon Supreme Court. And this committee is arguing that the Bar does not have the right to put the Oregon Revised Statutes, in any form, on a website without their permission (and royalty payments). By amazing coincidence, the website we provide (CaseMaker) is a non-profit consortium of several states that provides a much cheaper alternative to WestLaw and LexisNexis.
posted by msalt at 11:16 PM on April 23, 2008


The statutes of any state consist of tons of text -- there is a legitimate (I think) concern that if anyone publishes them, willy-nilly, that the text could get corrupted in some way; text could get dropped or significantly changed, and people could be relying on an inaccurate or out of date version. Maine's disclaimer on its statute website addresses this.
posted by JanetLand at 7:37 AM on April 24, 2008


It reads "The Legislative Counsel Committee claims copyright protection in those parts of Oregon Revised Statutes that are legally subject to copyright protection." Which would be none of them, in my opinion.

Look, I'm not arguing with you, just pointing out the reality of the overarching situation-- that anyone who thinks that "the law is free" is ignoring the realities of the legal publishing market, in which both Wexis and Casemaker are players. I have no idea what's subject to copyright protection in this situation and zero interest in ascertaining the answer. Anyway, thousands of putative copyright holders make similar demands all the time, regardless of the ultimate determination of the validity of their claim.

I also thought that their copyright claim on their website was, to put it mildly, interestingly phrased.
posted by missouri_lawyer at 8:10 AM on April 24, 2008


Oh, and as to the question posed by the thread header-- no, state law is not in the public domain. And based on 20 years' experience practicing law and involvement with several legal publishing companies, I can tell you that that state of affairs is for no good reason other than the benefit it confers on the established legal publishers. One can rail all they want about the copyright, and there have been some limited inroads on Wexis' death grip on the law (the VersusLaw decision from several years back from the 2d Circuit is the lead opinion), but it's definitely slow going to overcome the hegemony that West, in particular, has spent many years and a large but never-to-be-disclosed amount of money to build and preserve.
posted by missouri_lawyer at 8:15 AM on April 24, 2008


there is a legitimate (I think) concern that if anyone publishes them, willy-nilly, that the text could get corrupted in some way; text could get dropped or significantly changed, and people could be relying on an inaccurate or out of date version.

People are charged with constructive knowledge of the law as written, in every context. There's no danger of this being used as a defense, at the minimum.

it's definitely slow going to overcome the hegemony that West, in particular, has spent many years and a large but never-to-be-disclosed amount of money to build and preserve.

Frankly, this situation has some similarities to the record industry. These publishers have been going for a long time providing a great deal of added value to attorneys. Now, the computer and the internet are wiping that business model off the map rather quickly.

There will be battles, but the idea that the general public should not be able to easily read the laws that they are charged constructive knowledge of is just not tenable.

I'll admit that I have a vested interest in seeing all of this made cheaper.
posted by Ironmouth at 9:09 AM on April 24, 2008


Could the website in question not just link directly to the state's official (free) web listings and avoid this whole problem?

What exactly is Justia trying to accomplish by (re)publishing the info on their own site?

I know bandwidth is cheap, and storage is cheaper, but links are free.

Also, scribd.com looks neat... did we know about this already?
posted by Ynoxas at 12:29 PM on April 24, 2008


Could the website in question not just link directly to the state's official (free) web listings and avoid this whole problem?

Then you can't add any useful, innovative functionality to them- can't hyperlink them the way you'd like, for example. So... not very useful.
posted by louie at 1:32 PM on April 24, 2008


I have no idea what Justia.com is trying to do. What I hope someone would do is provide a website that allows average citizens to search on a legal subject for free (I'm assuming some advertising) and get results that include state and federal laws, court cases, and similar material (attorney general opinions, etc.) And that's what this is preventing.

The situation with the Oregon State Bar is along these lines, except that CaseMaker is a consortium of state bar associations that's attempting to provide much (though not all) of the value of WestLaw and Nexis-Lexis, at a vastly cheaper price. I think it's under $20 per lawyer per year, which wouldn't get you an hour on West or Lexis. This is possible because all attorneys in a state collectively join.

By the way, in case any thinks I'm gripefiltering, I didn't even realize my employer had any dealings with this committee until I told a coworker about this post, and said "Jeez, maybe they'll come after us for CaseMaker." His response was "Funny you say that..."
posted by msalt at 1:59 PM on April 24, 2008


there is a legitimate (I think) concern that if anyone publishes them, willy-nilly, that the text could get corrupted in some way

That makes sense for Justia and other private providers; not so much for the consortium of state bar associations they are also demanding a license (and payment) from.
posted by msalt at 2:04 PM on April 24, 2008


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