On Tearing Down the Berlin Wall Known as Copyrighted State Statutes

Fastcase's Ed Walters recounts the great State of Oregon take-down notice matter which called for the removal of the State's copyright protected statutes from Justia in 2008. The issue was resolved with the help of Public.Resource.org’s Carl Malamud. Justia was allowed to provide Oregon's statutes online but the State of Oregon did not disclaim its copyright. Walters writes:

This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law.  But this incident isn’t isolated.  LexisNexis believes that it owns the Georgia Code.  And the statutes of Colorado, Wyoming, and Mississippi.  The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Let's note here that the Uniform Electronic Legal Material Act does not address the issue of copyright. See Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment.

Walters follows up with a personal opinion, one clearly stipulated as not being associated with Fastcase:

How did we get to this state of affairs?  How can any commercial publisher believe that it “owns” our public law?  Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable?  And what can we do about it?

I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.

(Emphasis added.)

Walters proceeds with addressing the issues, including:

• How Can a Publisher Copyright Statutes It Didn’t Write?
• Is a Private Copyright in State Statutes Constitutional / Enforceable?

Then Walters evaluates the copyright claims that publishers would likely make about state statutes and discusses how states can get their codes back.

I'm not going to provide snips because I think his entire post deserves a close reading by all who may have not yet read it. See Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes on VoxPopuLII.

But I will add a comment. Ed writes "[a]lthough nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much." Well, you don't think AALL has any real plans to test this proposition either, do you Ed? Please reconsider. I'll even donate $1,000 to your litigation fund (that's like 2, maybe 3, billable hours). Oops, being an AALL member, am I allowed to do this?

To hell with our association's powdered wig wearing royals, I'm willing to do more than just talk. See The World of Actionable Actions, Part IV: The Cold Comfort of Government Intervention for Consumer Advocacy.{JH]