Copyright, Technology, and Access to the Law: An Opinionated Primer

“Copyright, Technology, and Access to the Law: An Opinionated Primer”


NYLS Legal Studies Research Paper No. 08/09-1

JAMES GRIMMELMANN, New York Law School

Recently, the state of Oregon has used copyright law to threaten people who were publishing its laws online. Can they really do that?

More to the point, why would they? This essay will put the Oregon fracas in historical context, and explain the public policies at stake. Ultimately, it’ll try to convince you that Oregon’s demands, while wrong, aren’t unprecedented. People have been claiming copyright in the law for a long time, and at times they’ve been able to make a halfway convincing case for it. While there are good answers to these arguments, they’re not always the first ones that come to hand. It’s really only the arrival of the Internet that genuinely puts the long-standing goal of free and unencumbered access to the law within our grasp.

This essay, written for nonlawyers and people interested in contemporary debates over access to the law, explains what’s at stake in the Oregon dispute, how people have tried such things before, the role of new technologies in improving legal publishing, what the law has to say about it, and where we ought to go from here.

 

Source:  LSN Legal Information & Technology Vol. 1 No. 8,  04/08/2009

Carl Malamud – Liberating Law

Earlier Erika wrote about Carl Malamud and his public.resource.org codes.gov site.  Today our friend and hero Carl is the subject of a story in the San Francisco Chronicle:

Man provides code manuals free online
Matthew B. Stannard, Chronicle Staff Writer

The San Francisco Chronicle, Saturday, September 27, 2008, p. B1

. . .

“Not everybody is going to read the building code, but everybody who wants to should be able to without putting 100 bucks in the slot,” Malamud said. “Primary legal materials are America’s operating system.”

. . .

“It’s very clear in American law that you can’t get intellectual property protection for law,” said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. “Law belongs to everybody.”

. . .

“This stuff has been locked up behind a cash register,” Malamud said. “(It’s) way too important to just leave it there.”

 

I especially enjoyed reading the comments — all favorable — and note that Carl is not just our hero:

Yep! This guy is my hero. When I had to repair parts of my house up “to code” I was like, “Okay, where’s the code book? Let me read up on it…” When I found out it wasn’t available for free from a government website (the most obvious place for it!) I was shocked. It just made NO sense…

. . .

Its about time!! I am a retired building contractor and I say its about time the public had ready access to laws like this that they are controlled by. if youre controlled by a law or regulation, you should have free and ready access to it Thanks, Mr Malamud

 

There are many more posted at SFGate.com.

 

Story update:

Carl is also the subject of a story in the September 29, 2008 New York Times:

“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.

. . .

As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said.

Copyright claims for state statutes – Round Two

Our friends Carl Malamud and Tim Stanley are again in the news:

ROWLAND: California seeks compensation for posting laws online
Kara Rowland
The Washington Times, Monday, September 15, 2008

In the latest instance of states claiming copyright over their laws, public information activist Carl Malamud posted the California Code of Regulations online at public.resource.org. According to the Press Democrat in Santa Rosa, Calif., the state government is asserting a copyright over its laws so that people will be forced to buy a digital copy for $1,556 or a print copy for $2,315. The state rakes in nearly $1 million a year from sales of its code.

“We exercise our copyright to benefit the people of California,” Linda Brown, deputy director of California’s Office of Administrative Law, told the paper earlier this month. “We are obtaining compensation for the people of California.”

. . .

Oregon relented in June following negotiations with Mr. Malamud and Mr. Stanley.

Mr. Malamud told the Press Democrat he is willing to go to court.

“If that happens, it opens the doors to innovation,” he said.

My Lunch with Carl

I taught resources in the law at San Jose State University for about a decade.  One thing I told all of my students is that, at some point in their careers, they HAD to hear Bob Berring speak in public.  I instructed them to keep an eye out for presentations he’d be making so that they could attend one of them.  I told my students that they simply couldn’t retire until they had done this.  I still feel that same way about Bob, but since he’s now moved to the Dark Side of teaching contracts law, these librarian-focused speaking engagements of his are much less common.

But last week Erika and I had the pleasure of having lunch with Carl Malamud, and starting this fall all of our students in advanced legal research are going to receive the same admonishment from us:  They have to hear Carl speak.

Those of you attending AALL in Portland  will have such an opportunity and really should attend the Hot Topic session on Sunday, July 13 at 4:15 p.m., Push Back and Push Forward — Open Access in Oregon and Beyond.   You have my personal money-back guarantee that you will find Carl’s presentation entertaining, motivating and inspiring.  And you might be outraged as well — perhaps, even, at Carl.

Carl will be sowing the seeds for the “Doctrine of Primary Coverage,” and you don’t want to miss this.

Tim Stanley is way cool too, and his guest appearance in our advanced legal research class last year was, without doubt, the highlight of the course.

Who:  Tim Stanley and Carl Malamud

What:  AALL Hot Topic, “Push Back and Push Forward — Open Access in Oregon and Beyond.”

Where:  OCC-Portland Ballroom 254

When:  Sunday, July 13, 2008, 4:15 p.m.

Why:  To liberate the law.

Oregon and The Power of Persuasion

According to a detailed, must-read report of the Oregon laws copyright dispute hearing carried by the Loaded Orygun, the hearing “was an astonishing display of open-mindedness and respect for informed opinion that resulted in a victory for the public interest.”   As Loaded Orygun’s post ” Shocking Democracy In LCC Hearing: Decision Actually Swayed by Testimony!” reports:

 Carl Malamud and Karl Olson testified first, making arguments strongly based in case law history. Tim Stanley of Justia.org followed, expressing the impact that the LCC’s decision would have on his business, and also expressing a desire to serve as a facilitator in effective public discourse about the law. They had been pursuing a case in Federal court, which was clearly a concern of the LCC members. The LCC also took verbal testimony from three Oregon residents, the authors of this blog post: Pete Forsyth, a collaboration consultant; Bart Massey, a PSU professor and open source advocate; and Amy Sample Ward, formerly of the Chalkboard Project and current project manager for Connectipedia.org. A number of others, including wiki inventor Ward Cunningham and Portland attorney Matthew Whitman, submitted written testimony. Every legislator was thoroughly engaged with the process, . . .

It brings to mind the words of Margaret Mead:  “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it’s the only thing that ever has.”

For those of you who will be in Portland in a couple of weeks, you’ll get to meet these free access thoughtful, committed citizens and learn what they are next setting their sights upon.

Who:  Tim Stanley and Carl Malamud

What:  AALL Hot Topic, “”Push Back and Push Forward — Open Access in Oregon and Beyond.” 

Where:  OCC-Portland Ballroom 254

When:  Sunday, July 13, 2008, 4:15 p.m.

Why:  To liberate the law.

More on Oregon

Carl Malamud’s Oregon page is now updated with the testimony from last week’s hearing:

http://public.resource.org/oregon.gov/

Big News – Oregon

From Tim Stanley’s Justia blog:

“Oregon’s Legislative Counsel Committee had a meeting this morning to discuss the copyright claim on the Oregon Revised Statutes. After taking legal counsel from Dexter Johnson, talking with Karl Olson, Carl Malamud, three Oregon citizens and myself, they unanimously voted to not to enforce any copyright claims on the Oregon Revised Statutes. This great!!!”

And, I just read this on BoingBoing:

“Rogue archivist Carl Malamud sez,

“Justia and Public.Resource.Org were invited, along with Karl Olson our counsel, to testify before the Oregon Legislative Counsel Committee. We were joined by a public panel of wikipedians and open source advocates.”

“The process was incredibly well organized. There was a comprehensive briefing packet prepared for the committee, the members asked lots of intelligent questions, and then Dexter Johnson the Legislative Counsel recommended to the committee that they waive assertion of copyright on their statutes. The Majority Leader placed the motion, the President of the Senate called the vote, and the vote was unanimous. This was democracy in action and was great to watch.”

The State of the State of Oregon

No, not Tuesday’s election.  Over on the Open Case Law Google Group, Carl Malamud has posted this discussion:

For those of you who are interested in the issue of copyright on state statutes, there is some updated information available here:

http://public.resource.org/oregon/

As always, we welcome any efforts to huna kuna the drafts!

Best regards,

Carl