I follow several legal cases, most related to animal welfare, climate, the environment, or agriculture and food. Like others, I have a PACER account, which gives me access to most court documents at the federal level, but at a price. I’m not overfond of the cost, as I’ve noted in the past, but I am, at least, grateful for such simple access to the documents.
I also re-publish the documents for access by all, and that includes discovery material and and evidence exposed during a trial. If it’s posted by PACER, it’s public domain. When I pay for PACER I’m paying for access to the system, not the documents. So far, no cease and desist letters, knock on wood.
I also re-publish other interesting government produced documents I find. Most are from US agencies, but some are from states. So I was surprised when reading about the experiences of Carl Malamud, creator of Public.Resource.Org, when he was attempting to access statutes for several states. He recounts his experiences in the excellent article, Who owns the law? Technology reignites the war over just how public documents should be, in the June edition of the ABA Journal:
During the January hearing, Malamud spoke about how, during the past year, he has been targeted by opponents that have blurred the distinction between government entity and private organization. For example, state and local governments often contract private publishers like West or LexisNexis to produce and publish their official codes. In 2013, Georgia, Idaho and Mississippi asserted copyright protection after Malamud posted their laws on his website. “While it is clear that the law has no copyright, a few states have evidently not received the memo,” he says.
Idaho, for instance, claimed in its cease-and-desist letter that it owned a copyright in the “analyses, summaries and reference materials” contained in the annotated code. However, the state went one step further and claimed copyright protection for the native statutory content itself, stating that Malamud needed a license (which could be provided free of charge) if he wanted to use it on his website. Georgia also claimed copyright infringement, writing in its takedown letter that while “the state asserts no copyright in the statutory text itself,” Malamud allegedly copied annotated text, which the state claimed was copyrighted. Mississippi made a similar claim, noting that LexisNexis, which published the code, had provided a clean, unannotated copy of the code that was available for free.
To Malamud, that’s a false distinction. He says the codes are not independent endeavors by private companies but are, instead, clearly labeled as official state laws.
A copyright on state code? Impossible.
Sure enough, when I tried to pull up the Georgia state code, as linked from the official George state web site I get this—an assertion that I can access a free copy of the code, only if I acknowledge that the material is copyright the state of Georgia.
A copyright on state code? Oh, hell no.
If the state wants to allow a private entity to annotate the state code, then the private entity can provide a link to the annotated copy. It’s the state’s responsibility to provide direct access to the code without asserting any form of copyright that must be agreed to before the individual can access. The material is prepared with tax payer funds and therefore is public domain. More importantly, as Malamud notes, laws that impact on citizens must be freely available to the citizens.
Not just state laws, though. Malamud also posts standard organization regulations, and is currently involved in lawsuits related to the standards organizations’ claims of copyright. It brings up an interesting question: we can consider that a private entity has rights to material it produces, but what happens when the material it produces is referenced in laws?
The organizations claim that they shouldn’t lose their copyright just because the regulation is referenced in law, but Malamud notes that “Access to justice should not require a gold card.”
Or even a plain old bank debit card, which is what I use with PACER.
The ABA Journal article is a fascinating and informative read, especially for those interested in open document access.
For more on Malamud’s legal cases, the Electronic Frontier Foundation provides access to the court documents for the Sheet Metal and Air Conditional Contractors court case, and Archives.org provides access to the documents for the most recent American Educational Research Association case, uploaded via RECAP. I’m rummaging around for the court documents related to the American Society For Testing and Materials court case and counterclaim. Recent filings in both show them being reassigned from Judge Emmet Sullivan, a judge I’m very familiar with, to Judge Tanya S. Chutkan.