Begging states to try to enforce ridiculous assertion that the law is copyrighted

The Electronic Frontier Foundation's Fred von Lohmann sez, "The Santa Rosa Press-Democrat has a nice article about Carl Malamud's latest project: scanning and posting state and local laws, regulations and ordinances (including building codes, regulations, all the minutiae you're supposed to know) for all to copy and use. This will test those states and counties that claim copyright over the law and want to charge you for copies."

Malamud is spoiling for a major legal fight.

He has begun publishing copies of federal, state and county codes online -- in direct violation of claimed copyright.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.

He's giving you access, one document at a time (Thanks, Fred!)

• [CarlMalamud]

  #3 … the codes live at http://bulk.resource.org/codes.gov/ and our site is public.resource.org.

  and, fya, here’s our readme file:

  http://www.flickr.com/photos/publicresourceorg/sets/72157606911738805/

• [donopolis]

  This is beautiful…It is so obvious that the laws are owned by the people that are governed by them.

  I guess it made some sense in the days before the internet…that to get copies of codes, regulations, and ordinances, there would have to be a nominal fee to offset the cost of copying and posting them to the recipient. I would imagine the library would have had a copy for viewing in the reference section.

  But in today’s world of internet users, there is simply no reason all laws and ordinances shouldn’t be available to look up at a moments notice…

  Imagine the lawyers wouldn’t like it much…or the nastier brand of police officer.

  The ability to look up, on your own, the fat that there is no law against taking a photo, and show it to the officer would probably not be welcomed.

  Don

• [bibulb]

  One interesting element would be where state code is directly based on copyrighted documents. The California Building Code (also known as the California Code of Regulations, title 24 part 2) is directly based on the International Building Code. The IBC is published by the International Code Council, which is an independent standardization organization. (For that matter, the CBC and other volumes in title 24 are also published by the ICC.)
  The question I’d have is whether free distribution of a governmental work that is substantially based on a private work would be in violation of the first party’s copyright or not.

  Mind you, speaking as someone who sells codes and standards, I’d love to see the ICC itself get “nationalized” and that codes themselves are treated like the CFR is so that the price of a given code isn’t a barrier to entry to the field.
  (And so that I wouldn’t have to hear “The building code costs HOW much?” ever again.)

  One method that I’ve seen governmental bodies use to get around such issues as the above is where something like the CFR will state that “such-and-so will be done as per the standard ANSI ID.10T, most recent edition.”)

• [Chris G]

  Federal law is clear cut. State law, less so.

  Unless there are specific exceptions spelled out in the law, all documents generated or received by the U.S. government are public domain.

  U.S. government works are covered by 17 USC § 105.59, which says, in part, “Copyright protection … is not available for any work of the United States Government.”

  U.S. government employees who refuse to release public documents can be held liable under the federal Freedom Of Information Act. (State employees too, depending on their state’s sunshine act, if it has one. Too few do.)

  The federal Office of Special Counsel investigates “arbitrary or capricious withholding of information under the Freedom of Information Act,” though I can’t get immediately find any instances where that’s happened lately. Check out 5 U.S.C. § 1216.

  As for state employees who withhold public documents out of caprice or even orneriness or ignorance … Well, I’m not sure of the difference between malfeasance, misfeasance, and nonfeasance, but you can bet an aggressive prosecutor does. And it wouldn’t take much to swear out an affidavit and seek a charging document.

  Now, here’s the deal with state and local governments and copyright: It’s up to their legislatures. But they almost certainly would not survive any court challenge of the sort Malamud might pose.

  Local governments often set restrictive policies or claim copyright, but they may be ignored without peril if they contradict state law.

  As to COSMICDOG, you might be right in a sort of ethical or commonsense way, but legally you are a different entity from the State of California, sorry. Though it’s hard to disagree with the essence of yr take on it — it’s a product of the state, yr a citizen of the state, therefore, you should be able to have access to it.

• [frankiez]

  I think US states that claim copyright over the law got a point:

  If software houses can affirm that security can be accomplished by keeping secret and copyrighted the sourccode, what better to defend american citizens than keeping secret the LAWS so everyone can be punished whenever anyone from the “untouchbles” (politicians, policeman, high rankign military, prison owners, etc.) feel the need to do so?

• [kwing]

  I’m all for fighting for the public’s right to access, store and print their own laws and regs. That said, I think California should get some credit for making its laws and regs as accessible online as it does. I regularly have to query pretty obscure state rules and without the luxury of a WestLaw or Lexis/Nexis account, CA is one of the few states with easily searchable laws and regs. Try that with Oregon.

  Then again, CA could stand to update its official guide to the Internet. Time to take down the number for MCI, no?

• [Ugly Canuck]

  This man is a public hero and worthy of emulation by all civic-minded citizens of virtue.
  Why are our govs not already doing this as a routine procedure?

• [santellana]

  recently a security guard told me that i could not take a picture of him. that i was breaking the law. i told him to call a real cop, cite the law i was breaking and lets go before a judge. he said he didnt know which law but he was sure it was against the law. i said but you don’t know the ordinance? or the wording of the statute ( i am not sure what those words mean, but happily, he did not seem to either. ) i said, my phone not only has a camera with your picture in it but also an internet connection, how bout we try to FIND this mysterious law you claim i’m breaking? i said paprazzi take photos of people all the time and get PAID, security guard, do you think you are better than brad pitt? he sheepishly rode away on his little ‘security’ bike. as he scampered off i yelled at him that he was a bully and that he was doing it wrong, that he was not making people feel secure, that he was an INsecurity guard. i would not have been so brave if it had been a pair or more of the goons.

  i’m pleased this Carl Malamud is doing what he’s doing, it should make it easier for people with internets on their phones to point out the incompetence of law-inventing pseudo-security guards. at least when they are traveling in murders of two or less. its a ‘murder’ of cronies, isnt it?

• [pauldrye]

  what better to defend american citizens than keeping secret the LAWS so everyone can be punished whenever anyone from the “untouchbles” … feel the need to do so?

  Because failure to make the law known to the public is a positive defense in court. The old maxim “ignorance is no defense” is really “ignorance is no defense, if it’s reasonable that they person could have known.”

  This is one of the foundations of common law in the west and, events throughout the world lately notwithstanding, it’s so basic that no First World government has attempted to subvert it openly.

  (You just get weasely attempts like TSA “regulations” being unpublished because they’re not technically laws)

• [asuffield]

  I thought documents created by the government were already in the public domain (except for classified documents).

  The US government realised a long time ago that this law can be bypassed by paying a private company to create the document on their behalf and then sell them the copyright, and routinely uses this method to gain copyrights on things that shouldn’t have them.

  Unfortunately the people who wrote the law were not sufficiently astute to ban the government from owning copyrights, only from directly creating them.

• [Apreche]

  I recall reading a news story way back, (too long ago to find a link easily) that closed the books on this issue. A company in Texas claimed that part of the building code was part of their trade secret. They probably lobbied for that, thinking they could somehow create a situation where they would have a hand in, or profit from, every building within the jurisdiction. The judge decided, obviously, that the law can’t be secret, or else how can people follow it?

  If I’m not remembering the case incorrectly, and I’m not just making something up, then I think that can just be used as a precedent for any of the other cases pertaining to this issue.

  IANAL.

• [Kaiguy]

  This is an excellent project, even beyond the copyright issue.

  In my home town, there’s never enough parking for college students at the apartment complexes. Turns out apartments are being rented to six students, and having two assigned parking spots. Even if only half the students have cars, this is far from sufficient.

  In about twenty minutes on the internet, I had a pdf of the city regulations on parking, and found that virtually every complex in the city was in violation of the law and renting to too many people.

  Of course doing something about this is beyond the power of even the mighty internets, but putting the law out there for every citizen is awesome, nonetheless.

• [Baldhead]

  Laws should be freely distributed. The idea of copyright is to prevent people from profiting on your idea. who can profit from laws not being readily available? Only lawmakers who wish to circumvent those laws.

• [DragonVPM]

  @#12

  Agreed.

  Regardless of what sort of hazy gray area those laws maybe currently exist in, the correct situation should be that all laws (and regulations) that we are expected to abide by are publicly available and can be retrieved by anyone with minimal hassle (e.g. available online and accessible from any public library).

  Anyone who tries to make laws more difficult to access is either trying to make an easy buck off of the system at our expense (and possibly putting us in harms way), or worse yet trying to subvert the very rule of law (e.g. “No you can’t do this / I can do foo because of this secret law that I’m not going to show you”) for their own ends.

  I’m glad they’re working on this, I really hope they manage to get everything online eventually.

• [jonrock]

  @11 You’re probably thinking of Peter Veeck vs. Southern Building Code Congress International Inc. (Aside: “Southern” *and* “International”? Are they trying to write codes for southern portions of more than one country?), but searching for “building code copyright” brings up at least one similar case in Chicago.

  An interesting analysis of the Veeck case is at http://www.constructionweblinks.com/Resources/Industry_Reports__Newsletters/May_17_2004/supreme.html

• [Man On Pink Corner]

  Um.

  If your state’s laws are that tall when printed out, whether or not they can be copyrighted is pretty far down your list of problems.

  That is all.

• [Takuan]

  The Game of Mao.

• [PrettyBoyTim]

  Wow. I can only think of two other students I knew during my undergraduate years who had cars at the time.

• [Pam Rosengren]

  My state (Queensland, Australia) has almost finished overhauling its Freedom of Information policy. Instead of every government department having different policies about access to information, there will be one statewide policy. The presumption is that information is to be accessible, not withheld (with limited specific exemptions). And the good news is, all government information will be Creative Commons (attribution) licensed.

  I’m told this should all be underway later this year.

• [sirspocksalot]

  #15 – I logged in to say the same thing. I find the sheer volume of laws to be VERY disturbing.

  Of course, we NEED all those laws because we’re far too stupid to be able to live our lives without government micro-management.

• [codesuidae]

  I think that stack there is just the index.

• [Nur]

  “If your state’s laws are that tall when printed out, whether or not they can be copyrighted is pretty far down your list of problems.”

  There’s a couple of opinions there, firstly, the fact it’s a huge stack of paper seems to mean that your legislators haven’t actually spent every single day of their working lives out at a long lunch. If it was a single page of A4 that was basically copied from somewhere else you’d feel cheated from the perspective of being a tax payer.

  Also, sometimes you need to use a few words where one would do just to make sure that your point is correctly expressed. You don’t want there to be any doubt in how you suggest you deal with criminals.

  That said, whoa, that’s guy’s got more paper than a rapper.

• [Bloo]

  In Florida, before the statutes were truly online, a company offered electronic media containing them. They claimed copyright not on the statutes themselves, but on the formatting and page breaks!

• [CosmicDog]

  That would be interesting…If the copyright is filed by the People of the State of California (for instance), then I should be able to view, copy, distribute, etc. any published laws, since I am the holder of the copyright as a resident of the State of California. The same should be true for the People of The United States of America down to the residents of the County or Municipality. And if these documents are not copyrighted by the People, then who, I wonder, owns our laws?

• [Variable Rush]

  I thought documents created by the government were already in the public domain (except for classified documents).

• [gandalf23]

  So, anyone got the link to Malamud’s site? Didn’t see it in the article.

• [remmelt]

  #24, actually… You’re right.

  I love how in the readme Flickr set, the government guy has his pants on ass-backwards.

• [pauldrye]

  I thought documents created by the government were already in the public domain

  The US Federal government only; they’ve specifically legislated that they don’t have copyright. States are still in a hazy area.