Thursday, April 17, 2008

Oregon goes wacka wacka huna kuna

The State of Oregon appears to be taking a novel position: that it has copyright in its statutes. The story comes from Ars Technica, here. Nate Anderson writes:

The State of Oregon takes exception to Web sites that republish the state's Revised Statutes in full, claiming that the statutes contain copyrighted information in the republication causes the state to lose money it needs to continue putting out the official version of the statutes. Oregon's Legislative Counsel, Dexter Johnson, has therefore requested that legal information site Justia remove the information or (preferably) take out a paid license from the state.

The prohibition on copyright in government works in Section 105 of the United States Code only applies to works of the United States government. States are free to protect works that their employees create as a statutory matter, but that hardly ends the matter. There are public policy grounds for not protecting works too, and the status of laws as commands has long been recognized as one such ground. Here, for example is an excerpt from an 1886 opinion, 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. This claim seems to rest upon the idea that the state, as an entity independent of its citizens, or as a whole combined of all its individuals, has a property right in the laws and judicial opinions outside of and beyond that vested separately in each citizen. I conceive this to be an error. 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. If the right of property enters into the question, he is a part owner, and as such cannot be deprived of equal access by his co-owners. Could a majority of a legislative assembly debar the minority from participation in the deliberations or a knowledge of the action of the assembly? The majority may bind the minority to the action it determines, but cannot withhold knowledge thereof. So, the majority of the citizens of a state—in a larger sense, the law-makers—may determine the conduct of all; but can knowledge of what is determined be withheld? This, of course, is more emphatically true as to the statutes, but also true as to judicial opinions, which, though not laws, are official interpretations of law. The mere judgment for or against the plaintiff of course decides the case; but that often furnishes little insight into the questions considered and determined. The opinions, at least those of the highest tribunal, are always considered as official interpretations of law, both statute and common, and as such binding upon all citizens. The same argument which supports the state's claim of property in judicial opinions supports that of property in statutes. The state pays the judges, and therefore owns the product of their official toil. The same is true as to legislators.

A more recent case is the Fifth Circuit’s en banc panel in Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002). Veeck involved adoption by municipalities of privately developed building codes, but the result is even more compelling when, as in Oregon, state statutes created from scratch by state employees are at issue. Oregon should rein its its wayward Legislative Counsel.

15 comments:

carl said...

I would happily trade you a definition of "wacka wacka huna kuna" for a pointer to Banks & Bros. v. West Pub. Co.

William Patry said...

And if I wasn't a vegetarian I would gladly trade you a hamburger today for ..... But here is the cite: 27 F. 50 (C.C.D. Minn. 1886).

Anonymous said...

Wacka wacka huna kuna?

You lawyers think you're so smart, using all that Latin.

;)

Anonymous said...

I am puzzled. Have not state laws have been considered to be in the public domain at least since Howell v Miller (1898, Michigan statutes), if not Davidson v Wheelock (1866, Minnesota statutes)? Howell was cited with apparent approval in the 5th Cir. in Veeck. Is this position wrong? Or is Oregon's claim for added matter? The issue then would be whether the added matter should be considered part of the laws, or whether Oregon can claim a separate copyright in that. If the added matter were added by a private individual, presumably s/he could claim copyright in that, according to Howell. But a state employee? Back to public policy in that case, I guess.

Carl Malamud said...

Oregon claims they are only asserting copyright on the added matter. However, they have glued the added matter so tightly on the underlying statutes that the private wrapper around the public package are inseparable. You can't get one without the other.

The Bellman said...

If Oregon is wacka wacka huna kuna, isn't New York as well? Isn't this analytically the same case as City of New York v. GeoData, No. 03-CV-3560 (DLI)(VVP), 2007 WL 2891427 (E.D.N.Y. Sept. 28, 2007), in which the City was granted summary judgment on its infringement claims against a firm that had copied its digitized versions of public tax maps?

William Patry said...

Yeah, we will have to come up with a new name for New York. Any ideas?

Anonymous said...

Um, New Yawka Wakka?

wubby said...

So is the counter argument/outcome that if I can't read it, I don't have to obey it? The old adage of "ignorance of the law is no excuse" applies ONLY when the law CAN be known. If no one can gain access (afford, granted license, not published), then it can't be enforcible, right?

JC said...

Could it not also be argued that the Oregon government is composed of employees of the People, and copyright is vested in the employer as it would for a private company? It seems to me that this is like someone telling his boss that the quarterly sales report is copyrighted and the boss can't see it.

simonator said...

If people aren't comfortable arguing against this from a public policy viewpoint, how about the merger doctrine? I, for one would argue that laws are at their root, procedures. (even if negativly defined) Moreover, since legal language is so tightly constructed that even moving a comma can make an important difference in meaning the usually CANNOT be paraphrased in a way that will separate expressive elements from functional ones. If you cannot separate protected elements from unprotected ones, the merger doctrine says that you CAN copy the protected ones.

William Patry said...

Dear Simonator, the merger approach is the approach taken by the Fifth Circuit in the Veeck case.

Rick said...

The building code analogy isn't helpful, since there was essentially a private work product sold to public interests with the understanding and encouragement that it would be adopted (the first page of many codes have a sample enabling ordinance). Invoking copyright after encouraging adoption - i.e., not allowing local governments the ability to modify the code for their own needs - was just untenable.

This dispute, as far as I can tell, isn't about reading the laws, since anyone with an Internet connection could look them over:

Oregon Revised Statutes, 2007 edition

So what exactly is the problem?

prosfilaes said...

Rick, the site you pointed to does not meet Section 508 Accessibility guidelines; people with certain disabilities can't view it.

Which is just one factor, though a major one. If you want to write "Renter Law and You in the state of Oregon", this makes it impossible include the literal text of the law in your document. If you want to translate the law in Spanish or Chinese, you can't. Even if you have the money to, owning a copyright permits the state to discriminate against users.

ROOPA said...

Why Oregon? Because Oregonians are wild, adventurous and inquisitive. Oregon is a place where people often find themselves roaming endlessly with no other goal than the next great meal, powdery slope, lighthouse view or salmon run. We encourage you to approach Oregon the way Oregonians do, with a sense of humor and adventure. So giddy-up.
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Ricky

Oregon Drug Addiction