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.