Friday, July 24, 2015

The copyright of law and misuse of terrorism analogies

Everyone knows that ignorance of the law is no excuse. A natural corollary of this, one would think, would be a right to know what the law is. For instance, you'd think that we here at the Gillette-Torvik blog could publish the text of laws without fear of official reprisal.

But that might be wrong.

The State of Georgia has sued Public.Resource.Org for copyright infringement based on its dastardly acts of ... disseminating the laws of Georgia.

Now, to be fair, Georgia recognizes that the laws themselves are not protected by copyright. But they claim ownership of the "annotated" code -- basically, summaries of judicial decisions regarding various laws:
13. These judicial summaries, along with notes and other original and creative works added by LexisNexis to the Georgia statutory text, are prepared as works made for hire for the State of Georgia and are protected by copyright (“Copyrighted Annotations”). The Copyrighted Annotations are created by LexisNexis for the State of Georgia pursuant to the state’s Code Publishing Contract with LexisNexis. Accordingly, each of Plaintiff’s Copyrighted Annotations, as to which infringement is specifically alleged below, are original works of authorship protected by copyright, and exclusive rights under these copyrights are owned by Plaintiff. These copyrights have been registered with the United States Copyright Office, or have an application for registration pending with the United States Copyright Office. 
14. Plaintiff does not assert copyright in the O.C.G.A. statutory text itself since the laws of Georgia are and should be free to the public. The Code Publishing Contract between LexisNexis and the State of Georgia requires that LexisNexis publish on the internet, free of charge, the statutory text of the O.C.G.A. These free Code publications are available 24 hours each day, 7 days a week, and include all statutory text and numbering; numbers of titles, chapters, articles, parts, and subparts; captions and headings; and history lines. The free Code publications are fully searchable, and the catchlines, captions and headings are accessible by links from the table of contents. The free Code publication of the State of Georgia is accessible via a website link found on the State of Georgia website
Georgia goes on to explain that Carl Malamud, the force behind, is doing this as part of a "strategy of terrorism" to force Georgia to provide him the annotated codes in a format acceptable to him.

That's right folks: this is TERRORISM.

Perhaps Georgia has a viable claim under the Copyright Act. But it seems to me that the judicial decisions implementing the provisions of Georgia law are just as much part of the law as the code itself. If Georgia has paid a company to compile those judicial summaries, as a matter of policy it seems those judicial summaries should be publicly available.

On the flip side, I suppose the reality is that Lexis-Nexis charges less, or perhaps nothing, to compile the summaries knowing that it has a de facto monopoly on the use of them. Certainly, Lexis-Nexis could go ahead and prepare judicial summaries for the Georgia code without any kind of contract with the State of Georgia, and Lexis-Nexis would own the copyright for its efforts. But instead they've chosen this strange arrangement where they prepare the judicial summaries for hire, leaving the State of Georgia with the copyright. It strikes me as kind of ... shady.

What do you think Mr. Gillette -- should the public have an unfettered right to access annotated codes paid for by the public?

Here's the complaint:


  1. Your post raises two questions:
    1. What is the definition of terrorism as used in the Complaint and who came up with definition? The exhibit mentioned in the complaint isn't attached.
    2. Who is "the public" that paid for the summaries? I assume that means the citizens of the State of Georgia. It seems weird that the citizens of the state would have to pay to see something that their taxes already bought. I wonder if charging non-citizens of Georgia would run afoul of the privileges and immunities clause of the Constitution.

  2. 1) Terrorism is an infamously tricky concept to define with rigor. Safe to say this is not it, though. Basically, Malamud used the word himself to describe his own tactics -- and I think what he meant is that he is fighting a guerilla war: small band of lightly armed individuals poking at giant state powers. So the lawyers representing Georgia decided that this was some sort of "admission" that he's practicing "terrorism." In other words: terrible lawyering worthy of our derision.

    2) I agree it seems weird. I guess if the state of Georgia is suing to try to prevent their precious annotations from being perused by citizens of Alabama, maybe that makes some sense. (sarcasm)


Comments on posts older than 30 days are moderated because almost all of those comments are spam.