Oregon: our laws are copyrighted and you can't publish them

Rogue archivist Carl Malamud sez,
The State of Oregon is sending out cease and desist letters to sites like Justia and Public.Resource.Org that have been posting copies of Oregon laws, known as the Oregon Revised Statutes.

We've sent Oregon back two letters. The first reviews the law and explains to the Legislative Counsel why their assertion of copyright over the state statutes is particularly weak, from both a common law perspective and from their own enabling legislation.

The position of the Legislative Counsel is that their public access obligations have been fulfilled by their web site. However, their web site has over 500,000 HTML errors, does not meet Section 508 accessibility requirements, has no metadata, as our second letter points out.

Particularly galling is the fact that Thomson West has also made a copy of these statutes and has done so without a commercial license, but the Legislative Counsel explicitly told Tim Stanley of Justia that they weren't going to send cease and desist letters to West. Evidently, it is much easier to pick on the little guys.

Oregon is not unique in asserting copyright over state law, but they are definitely one of the more aggressive in this kind of FUD campaign. Justia and Public.Resource.Org have decided this is an important issue to resolve and we're going to hold firm on this. Anybody else who is making a mirror of the Oregon law should drop me a line and let me know.

Link (Thanks, Carl!)


  1. What a bunch of douchebags.

    Cases like these, IMO, are perfect examples of the consumerism parasite sucking on the civic body.

    No, Oregon, you are not a corporation, and your citizens are not consumers of law statutes. And you do not have the right to make taxpayers fund legislation and then try to sell it back to them for a fee. And I know that’s what you’re shyster lawyers are pushing for – no offense to the honest lawyers out there.

  2. This is one of those things where you ask, “What’s the point?” I would love to hear an explanation of what they think they are getting out of this notice.

    Just because you have a legal right to do something that harms the public and benefits nobody — including yourself — does not mean that you should exercise that right. Of course, when the claim to a legal right is as weak as this one, it is even more senseless to try to enforce it simply to harm others.

    Now all that said, isn’t there an interesting criminal defense available? Imagine that a person tried to look up the law, was unable to find it because of the combination of lack of handicapped accessibility on the official site and intentional restriction of the availability of handicapped accessible copies from third party sites. Now imagine that the person violates the law not intentionally, but because the State of Oregon used copyright to essentially prevent him from succeeding in his good faith efforts to look up the law, thereby frustrating his good faith efforts to comply with the law.

    It is clear that you cannot prosecute somebody for violating a “secret” law that is passed in private, never published, and never made known to the public. There must be a continuum between an unenforceable secret law and a normal, published, and available law. At some point on that continuum, where a state takes affirmative steps to prevent citizens from learning what the law is, the state puts at risk its very ability to constitutionally enforce its laws.

  3. I think they flat out miss the point of copyright- to prevent others from profiting on your intellectual property. In a case where no profit is even possible- why care?

  4. Well, we Americans have already surrendered justice to the forces of the free market: the person with the most money to spend on lawyers generally wins.

    The next logical step is to actually sell access to the law itself.

    After all, the State of Oregon must turn a profit, (so the thinking goes), right? And in a capitalist society, you have to pay for everything, including a fair trial. Which is another way of saying that everything is for sale, including justice.

    Per the continuum of secrecy: I don’t think totalitarian regimes have ever bothered to keep their laws secret. The laws were written by them for them, and in any case, were interpreted in any way they saw fit. See the Stalinist show trials. Or Bush’s interpretations of the Constitution and the Geneva Convention.

    I’m just spitballin’ here.

  5. I’ve worked for Thomson West (albeit as a temp packing boxes) and somehow I doubt they’d publish Oregon’s Revised Statutes without being commissioned to do so.

    Or else they’ve just been doing it for so long that nobody cares.

    Or else Oregon thinks it would be better if they didn’t tell one of the nation’s largest publisher of law books not to make any more for them unless they order them.

  6. WTF. This seems so out of sync with how Oregon (well, let’s be honest, PORTLAND) would rule. So…weird. I’m definitely gonna contact someone about this.

  7. All State laws policys and tax rev and appropriation should be available online for the tax paying public to review at any time.

    Copyrights and all intellectual property are a thing of the past. If we as a nation have no means to enforce laws beyond our borders such as online the framework of “the law” will be only apply to americans. Will we persist in playing by rules that the competition does not comply with.

  8. If the law is copyrighted, then how is the general public to know what laws to abide to and what not?
    “I’m sorry, judge, I didn’t know it was against the law to run a red light. I don’t have free access to the law that forbade it.”

  9. #3 Contact your local gun shop. You’ve (we’ve) already lost it all. Only a true, physical defense will create the possibility to retain our rights.

  10. #2: “It is clear that you cannot prosecute somebody for violating a “secret” law that is passed in private, never published, and never made known to the public.”

    Sadly, that is actually no longer clear.

  11. That doesn’t even make sense. The government and the laws they enact are owned by the public. You can’t copyright what is already, by default, public property.

    I’m sure we could sit here and dissect the issue, statute by statute, until we’re all sick of yapping on the internet, but the fact remains that this absolutely absurd.

    Let them press charges, or do whatever. It’ll just be a waste of taxpayers’ money and contribute nothing but more reasons to vote the morons out of office.

  12. #1 posted by Nick D >> “no offense to the honest lawyers out there”
    Really? All three of them? :)

  13. And I know that’s what you’re shyster lawyers are pushing for – no offense to the honest lawyers out there.

    Yes, let’s blame the lawyers, shall we? Until we hire a few (or several take on the matter pro bono) to fight this overzealous interpretation of copyright law. I believe that even the sainted EFF employs…gasp!…lawyers! (cue eerie music)

  14. The government is the representatives of the people. They are our employees. This is like the regional manager asking his sales staff for a copy of the annual report, and being told they’ve copyrighted it and he has to pay to see it.

    We, the people, have the copyright, as legislators are not elected on a work-for-hire basis.

  15. Oregon claims copyright over the typesetting and numbering of the laws rather than the actual text of the laws themselves.

    This robust legal argument was first used between Alice and the White Knight [Carroll,1865] to distinguish between a) the song, b) the name of the song, and c) what the name of the song is called.

  16. But where do they get off applying the law only to Public.Resource.org and not their buddies down at Thomson West, who are presumably turning a profit on public property? It is the blatantly unequal application of the law I find particularly disturbing. Seemingly, the likelihood of criminal sanction in the United States is inversely proportionate to the social harm caused. I sort of wonder why that is.

  17. what is sure is that the goniff behind this particular cash grab will continue to collect his pay cheque without sanction long after the mess is cleaned up.

  18. Works made by any employees of the Federal Government, in the course of their duties, cannot be copyrighted and are automatically in the public domain. (link).

    Is there no similar law for work made by employees of a state?

  19. Just a guess but probably the biggest reason Oregon sent the letters is accuracy, not greed. Their concern- They do not want 2, let alone 20 mirror sites out there, all purporting to be ‘the Oregon statutes’ for the laymen Googling public to rely on. New laws are passed and integrated into the code weekly- how often will these mirrors be updated, and will Joe Blow using Google understand how to evaluate how current the mirror’s statutes are? Or what if there’s just a flat out contradiction between an official statute and the mirror?

  20. I am not a lawyer.

    I remember reading about a case, I think in Texas. The situation was thus. The building code had a particular requirement in it, but in order to fulfill that requirement, you had to know something that was a trade secret of this one company. The company obviously wanted to have a monopoly on construction of buildings, so they said they couldn’t tell people the trade secret.

    The judge ended up saying that the law has to be public. How can people be expected to follow the law, if they can’t find out what the law is? Being ignorant of the law is not an excuse because it is the responsibility of the citizens to know the law. However, if the laws are kept secret, it becomes impossible for the citizens to uphold their responsibility, and therefore they can not be held responsible.

    The laws being made public is as fundamentally important to a free, open, democratic society as is habeas corpus and other such things.

  21. #22 – accuracy would be a valid concern, though they could build a sha1 or md5 hash, just like we do with software distribution. alas, though, it is all about the money in this case and they are very upfront about that.

  22. Just put them up on The Pirate Bay, let the Legislative Counsel duke it out with the Swede’s for the right to publish our laws..

  23. I dunno…to me, the letter from Oregon to Justia doesn’t sound as bad as Justia’s making it sound. The letter says that while they don’t own copyright on the text itself, they do have copyright on the explanatory notes, annotations, etc.. Oregon also claims that though they have the copyright on that part of the material, Justia doesn’t include that in their posting (as far as I can see on the Justia site, they don’t). Finally, they claim that on the Justia website, there’s a copyright notice saying “Copyright (c) Justia”, which is also true, though I don’t know if a copyright at the bottom of a page means they’re copyrighting all the documents on a page (including the Oregon laws) or just the page itself. Finally, Oregon welcomes Justia linking directly to the Oregon statutes (wouldn’t that solve the accuracy issue?) or just getting a license. I don’t anything about copyright law, but Oregon’s letter doesn’t seem as evil and douchbaggy as the post made it sound…

  24. #26 – I just RTFA as the slashdotters say, and yeah, this isn’t half as bad as the BoingBoing lead made it out to be – in fact the headline is flat out wrong. Oregon is not claiming copyright in the statute, they’re claiming it in the ‘extras’ which are not part of the law itself – selling those extras are probably what finances the work of the Committee; and Justia is apparently slapping their own (C) on it. Sheesh.

  25. whatever. The principle of the thing is that government has an obligation, a duty, to make law plain and accessible. Anything whatsoever that goes even faintly in the other direction should be mercilessly crushed.

  26. I don’t think the government can legally claim an exlusive coipyright on anything produced that pertains to the law, since that information is always of potential importance to people subject to the laws of their state. There’s no potential loss or misleading characterization of information be replicating it and no private income at stake. What they don’t like is that people are making it accessable and using it in ways outside of the scope it was intended by the state. That is, however, a pretty weak case. If I want to post what the state says, either in the laws themselves or in commentary or explanations about those laws, I should have the right. And, I pretty much figure I and the rest of us do, which is why I’ve framed their laws in one of my website’s pages:


  27. I’ve been giving this more thought. The ability to create the copyright rules is a specific power of Congress granted in the U.S. Constitution. I cannot figure out how permitting copyright in a state’s statutes falls within the power granted to Congress by the Copyright Clause.

    “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    Even reducing to a claim that the copyright is in the numbering of the statutes, how is the act of a state in numbering or otherwise providing order to its own statutes promoting the “useful Arts”? I know that the RIAA and MPAA have scared the world into thinking that you can copyright anything and be put in prison for even thinking a copyrighted thought, but it simply isn’t so. I think this is a use of copyright not permitted by the U.S. Constitution.

  28. The way that I see it, is that they’re trying to keep people from making a profit off of public property. If a site has those laws on it and they’re attracting users that are seeing the ads they’re getting paid for, then they’re making a profit off of public works. That’s not really fair.

    Remember, the university of oregon is one of the very few uni’s that told the RIAA to GTFO. Oregon is really super-liberal. I can’t imagine them doing something like this just to be malicious. Not to mention, as another user said, they actually do own rights to the footnotes and whatnot, so that may be what they are protecting.

  29. The citizens of Oregon own the laws, the computers they were typeset on, and everything else the Legislature does or uses – unless the Legislature is funded by some other source which would make it unique among states (No – let’s not get into the “funded by lobbyists” thread). They paid for them to be published; I should think they also have the right to have digital copies.

  30. @35

    With that kind of reasoning, then it would make sense to say that no one other than people from oregon could look at them?

  31. Five hundred thousand HTML errors? I’m skeptical on that little tidbit. Maybe it’s just 50 errors repeated 10,000 times within a php or frames background? Maybe it’s a programmer who doesn’t close their {p}’s? What are we talking about here?

  32. British Columbia is guilty of this, too. Up to date consolidations of statute are only available through the Queen’s Printer’s web store called QPLegalEze:


    “Why is there a cost for legislation?

    British Columbia Queen’s Printer is a fully cost-recoverable operation and provides products/services on a user pay basis.”

  33. “Oregon claims copyright over the typesetting and numbering of the laws rather than the actual text of the laws themselves.”

    So the simple solution is to use a scanner and OCR software and change the typesetting?

    The numbering? How can I say “You’re in violation of ORS 3.11.2a Paragraph305” or whatever without using the numbering?

    Oregon is often just silly.


  35. Charles Guarino:

    Saying that I slagged off all lawyers just shows you didn’t read my comment very carefully.

    Anyway, lawyers are not just tools that do what their employers want. Their actions have an ethical dimension like everyone else’s.

    Lawyers advise their employers. They can advise them to pursue their interests ethically, or they can advise the opposite. Hence “shyster” vs “honest.”

    Or maybe you thought that every single underhanded, slimy abuse of copyright law was thought up by clients who then forced their groaning lawyers to comply?

  36. Carmen, medical marijuana and physician assisted suicide are good things. Are you saying that suing over copyrighted laws is good too? I have to disagree.

    PS: typing in all caps does not make people think you have a good point. It just makes them think you’re throwing a temper tantrum.

  37. According to my friend Bjorn (& I agree with him):

    “The State of Oregon” sits as a municipal corporation, privately held, and for profit. For the financial details see “State of Oregon Comprehensive Annual Financial Report(s)”. Here is 2007’s: http://www.oregon.gov/DAS/SCD/SARS/docs/2007_CAFR.pdf

    Thanks in large part to Walter Burien 7M+ “hits” obtain if you google “CAFR” – the biggest shell game – and fraud I might add – in town. Since there are over 134,400 municipal corporations across America several hundred thousand of those hits are for the cafr.gov pdf (pretty damn fooked) files. For some eye openers see “cafrman” who has analyzed many of them including Oregon’s: http://www.cafrman.com/Articles/Art-OR-S1.htm

    Go here for an audio of Walter being interviewed: http://mp3.wtprn.com/Karen/0804/20080414_Mon_Karen1.mp3

    As such, this corporation has every right to copyright its cheap pulp fiction and you are violating that “right”, assuming of course fictitious “entities” can have “rights”, by publishing their crap.

    I don’t think fictitious entities can or should have “rights” but that is another matter!


  38. To everyone who commented angrily without reading the cease and desist letter (amazing the things you can learn in five minutes or less) they are not claiming copyright on the law itself. What they are claiming copyright on is the tables, annotations, line number, etc. – essentially the entire formatting – which Justia is displaying and not providing credit for.

    Furthermore, they claim that Justia is displaying their own copyright on each of the pages in question.

    While I agree it is slightly silly, their argument is as sound as the copyright in my Complete Pelican Shakespeare – Shakespeare is public domain, and if I want a copyright free version, I can go to the First Folio, and edit one myself.

    Also worth pointing out that they have no problem with Justia linking to their pages, just failing to give credit.

  39. Now here’s a hilarious concept:

    What will Oregon do if the Supreme Court decides an issue based solely upon Federal law instead of State law grounds because LEGALLY the Supreme Court was unable to legally gain access to the laws of Oregon?

    It’s a kind of Rhenquisty way to turn state sovereignty on its head.


  40. This discussion is the perfect example of why I don’t get angry or outraged about copyright issues on Boingboing – it turns out it’s some minor issue, blown way out of proportion and sometimes actually distorted by whoever posts it, then nobody reads the actual pages, and comments on the two paragraph blurb.

  41. Kaiguy:

    If you had bothered to read the above comments carefully, you’d see that your comment merely replicated comments already made.

    But by all means, feel free to call us all uninformed hysterics who don’t bother to do our homework.

    Put down the editors of the blog while you’re at it, too.

  42. To those arguing that the copyright of tables, annotations, line number, etc. is valid, here is something to think about.

    The state contracts with the third party to publish their laws but gives them the authority to decide the line numbers, paragraph numbers, annotations, etc. The words are all available for anyone to copy but you can’t keep the words in the format of the third-party.

    But now you want to refer to a law, specifically some clause, paragraph, or subsection. Or you want to refer to a legal note a politician made about the law, perhaps some insight into the politician’s reasoning when coming up with a particular part. Courts won’t allow you to use the unformatted or differently formatted version of the published laws. They will require citations using the system of the official published version. So, the state has effectively out-sourced it’s official duties to a third party who is not doing it for free. They demand compensation for the services they provide, and one of those demands is a monopoly on supplying this official information. If the state didn’t give this monopoly maybe the third-party wouldn’t agree to provide the services. So now the information provider can charge a fee to anyone who wants to do official state business or just wants to do research. This is how Lexus Nexus and other companies can sell court cases to the public, by being the official citation source for those court cases.

    Personally, our state shouldn’t be outsourcing their official duties to a private, for-profit company. They’ve effectively made the law copyrighted and that is against the Constitution and is a moral outrage. They’ve effectively left themselves open to criticisms of publishing secret laws. One can’t do effective legal research if one can’t be able to follow references to published laws.

    Thanks to our government to come up with this Catch-22 madness.

  43. “Oregon claims copyright over the typesetting and numbering of the laws rather than the actual text of the laws themselves.”

    both of which were paid for by taxpayers, the argument does not hold water…

  44. Numerous jurisdictions copyright their laws and often their court opinions too. In a few cases (England comes to mind) this has traditionally as much been to make them a profit center as anything else. In most — and until now all U.S. — jurisdictions it has been to give the authorities the power to restrain doctored or incorrect copies.

    With the coming of the Internet and the impossibility of restraining online publication in various jurisdictions (think of thepiratebay.org in Sweden; or a number of Web sites in unreocgnized states like the Turkish Republic of Northern Cyprus; or the farcical injunction issued against wikileaks.org when mirror sites around the world held the same data) either kind of restraint is impossible.

    Oregon is blowing smoke. They haven’t the resourdes of the RIAA the Business Software
    Alliance, and all thsoe other industry-sponsored litigators; how can they hope to be more successful? P2P and foreign IP’s and the dictum of Lord Mansfield’s Rule assure that they are doomed to fail. Ignominously.

  45. Another point: as to the claim of copyright over numbering and typesetting, that was seemigly decided, at least in the Second Circuit, by Matthew Bender v. West Pub. Co., 158 F.3d 674 (2d Cir. 1998) (arrangement of cases not subject to copyright); 158 F.3d 693 (2d Cir. 1998), cert. denied, 119 S.Ct. 2039 (1999) (“star pagination”).

    llrx.com has a series of essays on the history of jurisline.com and its attempts to defeat Mead Data Central’s intellectual property rights. In the end the Jurisline case was decided on the basis of contract rights. Wikileaks is a better example: once the digitized data are online and free of access controls they cannot be recaptured. Likewise, The Memory Hole, Usenet news groups and all those other anarchic and chaotic repositories for data.

  46. #10 – you are 100% correct. This is yet another piece of evidence that we’ve headed too far, way too far down the path to authoritarianism for a peaceful resolution. Every day there is another tiny bit of proof, like this story, of how far we have fallen.

    Buy ammo. Bide your time. Remember that these leaders responsible for this type of thing made their own bed. Civil war, and the killing those who enact policies like these is not universally wrong. Sometimes it is the only choice you are left with.

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