Carl Malamud's testimony on copyrighting the law

Rogue archivist Carl Malamud sez, "On Tuesday, January 14, 2014 at 10AM, the House Judiciary Committee will be holding hearings on the Scope of Copyright Protection. I will be testifying on the subject of Edicts of Government, including copyright assertions over state laws and federally-mandated public safety codes. My prepared statement is available and I would like to express my appreciation to the Committee for giving me the opportunity to testify."

Edicts of government are the rules of general applicability by which we choose to govern ourselves as a society. When John Adams said we are “an empire of laws, and not of men,”[1] he meant that our democracy is based on public laws that we all know, not on the arbitrary actions taken in star chambers or smoke-filled back rooms.

That ignorance of the law is no excuse is a principle firmly rooted in the law, a principle that can only be true if our laws are public.[2] All modern democracies are based on the doctrine of the rule of law, a doctrine firmly embedded in our common law, enshrined in international treaties, and one of the underpinnings of the constitutions of the United States and other nations.[3]

Legal scholars rarely agree on a single point, but on the idea that the law must be promulgated to be effective, they are unanimous. Professor Tamahana, for example, in his standard text on the subject stated, “Citizens are subject only to the law, not to the arbitrary will or judgment of another who wields coercive government power. This entails that the laws be declared publicly in clear terms in advance.”[4] That is why, going back to ancient times, societies that replaced the rule of tyrants with the rule of law prominently displayed the laws in public places for all to see, a point made so well by Senator Robert C. Byrd in his classic lectures on Roman history delivered on the floor of the U.S. Senate.[5]

An Edicts of Government Amendment