Archivist Carl Malamud continues to struggle with Georgia over the right to publish Georgia’s laws for free on the Internet. In July, 2015, Georgia filed suit, accusing Malamud and his organization Public.Resource.Org of using a “strategy of terrorism” to try to force states to publish laws freely themselves. Though the circuit court found for Georgia, the 11th Circuit Court of Appeals reversed this judgement in October, 2018. Subsequently, Georgia petitioned the Supreme Court to hear the case—and Public.Resource.Org is also asking SCOTUS to take it up.
In the original complaint, Georgia accused Malamud of using a “strategy of terrorism” to try to blackmail states and other entities into making information available to the public by scanning and posting it himself—quoting Malamud’s own words from the prologue of a book he wrote in the early 1990s.
In that prologue, Malamud ironically applied the label to his actions in convincing the International Telecommunication Union to make public a 19,000-page standards document by threatening (somewhat emptily, given the state of OCR technology at the time) to scan and post it himself. While the context-free use of the term “terrorist” in Georgia’s lawsuit is something of a joke, it does at least show just how long Malamud has been on this crusade to make “free” information freely available.
He isn’t just interested in laws, either. Another organization he founded, Fedflix, uses user donations to pay for copies of government-produced video media, which it then posts to YouTube. That effort ran into its own share of controversy, as YouTube’s ContentID kept flagging these public-domain videos as copyright violations. (Fedflix’s videos are now found on Archive.org, or on a Public.Resource.Org YouTube channel.)
In the case of Georgia, Georgia’s state laws themselves are in the public domain, and Georgia didn’t have any problem with him posting just the laws. However, in an effort to save the taxpayers money, Georgia outsourced the production of annotations—collected legal opinions and other matters expanding on and explaining the laws—to LexisNexis, which would act as the publisher and collect royalties on the annotations (though the State of Georgia still owned the copyrights). This sort of arrangement is not uncommon; a number of other states engage in similar practices.
These annotations can be cruicial to understanding and interpreting the laws (or, in some cases, to knowing when they’ve been found unconstitutional even if they remain on the books). No lawyer would consider arguing a case based on such a law without consulting the annotations.
“When you go to a statute, you see the language of the statute, but that doesn’t necessarily tell you the meaning,” [law professor Leslie Street] said. “You go to the annotations, which leads you to the court decisions, where the judges actually tell you what the words mean.”
While they may not be laws per se themselves, the appeals court found these annotations to be “sufficiently lawlike” that they should not qualify for copyright protection. This worries not only Georgia, but a number of other states who follow the same practice; they filed an amicus curae brief with the Supreme Court expressing concern that the ruling could mean states might not be able to afford to continue producing annotations at all. LexisNexis’s publisher, Matthew Bender & Co, also filed a brief complaining the 11th Circuit’s decision “needlessly destroys a thriving market for the creation of State-owned annotations by private publishers,” and the Software & Information Industry Association filed one complaining that the decision increases uncertainty over what can be copyrighted and hence will discourage investment in new works.
Public.Resource.Org’s brief asks the Supreme Court to hear the case even though it won the appeal, because the question of access to important legal documents needs to be settled once and for all. On its side are a collection of political thinktanks, librarian groups, and other organizations including the ALA, Public Knowledge, and C-SPAN, whose brief asserts that there is too much uncertainty as to what state and local government documents may be under copyright, and they want clarification from the court just as much as Public.Resource.Org does. Another brief from accessibility advocates notes that people who use assistive technologies often have difficulty accessing the laws, and making sure that they’re in the public domain will be a great help to them. And a brief from a number of law students, practitioners, and educators notes that open access to these materials would also be very helpful to them.
For me, all this brings to mind the expression “ignorance of the law is no excuse.” When the sentiment was first expressed, the laws were simple enough that they could be posted in their entirety in any public square. The reason ignorance of the law was no excuse was that there was no excuse for ignorance of the law when it was right there for all to read (or have someone read to them, if they were illiterate).
Now we have states trying to make a buck by keeping people ignorant of the law. It doesn’t seem to me like that’s the way to go. If publications of the federal government can automatically be in the public domain, then why shouldn’t state and local publications have to be also? Sure, it might cost more taxpayer dollars for states to publish annotations themselves instead of having someone else do it—but that’s what taxpayer dollars are for. Saving a few bucks by letting someone else make a profit on the backs of the law, while making it harder for ordinary people to access it, just leaves a bad taste in my mouth. I’ll be quite interested to see what SCOTUS makes of this one.