Via Boing Boing comes a story about the State of Oregon asserting copyright over its official codification of state laws, the Oregon Revised Statutes. The state’s Office of Legislative Counsel has been sending out C&Ds to groups like Justia and public.resource.org, demanding that they take down their copies of the state laws. The groups are responding with letters of their own arguing that the statutes are in the public domain as a matter of federal copyright law and that Oregon state law allows them to be freely reproduced. My analysis after the break.
Although Section 105 of the Copyright Act places the works of federal government employees (so, federal statutes, federal judicial opinions, and the like) in the public domain, Section 105 doesn’t apply to state laws. Does that mean state laws are copyrightable? Although the statute is silent, the courts have always said: no, they aren’t. In Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886), the court rested this conclusion on the unfairness of limiting public’s access to the rules that governed its conduct:
Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. … It can hardly be contended that it would be within the constitutional power of the legislature to enact that the statutes and opinions should not be made known to the public. It is its duty to provide for promulgating them; while it has the power to pass reasonable and wholesome laws regulating the mode of promulgating them, so as to give accuracy and authority to them.
This principle was relied on in many early copyright cases to preclude private compilers of state laws from asserting copyright in the statutes. See Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (the “general proposition cannot be doubted” that “no one can obtain the exclusive right to publish the laws of a state”; there can be “no ground of complaint” against a party who merely reproduces “the general laws of Michigan as therein printed” in the official code books); Davidson v. Wheelock, 27 F. 61, 62 (C.C.D. Minn. 1866) (state statutes “are open to the world. They are public records, subject to inspection by every one …. They may be digested or compiled by any one, and it is true such compilation may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the combination and analysis; but such compiler could obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him.”).
The Supreme Court took this principle and ran with it, ruling in a number of early cases that judicial opinions (by analogy to statutes) were uncopyrightable subject matter. See Wheaton v. Peters, 33 U.S. 591, 668 (1834); Banks v. Manchester, 128 U.S. 244, 253 (1888) (“The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law or an interpretation of a constitution or a statute.”). The Fifth Circuit succinctly summarized this history by remarking that “‘the law,’ whether it has its source in judicial opinions or statutes, ordinances or regulations, is not subject to federal copyright law.” Veeck v. Southern Building Code Congress Int’l, Inc., 293 F.3d 791, 800 (5th Cir. 2002) (en banc).
The State of Oregon apparently recognizes the uncopyrightability of its statutes as such, so its C&D letters instead make a “selection and arrangement” claim. The State’s letter, linked above, states in part:
Although the Committee does not claim a copyright in the text of the law itself, the Committee does claim a copyright in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents as are the work product of the Committee in the compilation and publication of Oregon law.
This is the sort of claim that became much harder to support after Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991). The fact that “section 102″ follows “section 101,” although indisputably an aspect of the code’s “arrangement,” shows absolutely none of the creative originality that the Supreme Court held was, at a constitutional minimum, indispensable to any claim for copyright protection. It’s the same reason why West Publishing’s claims to a “selection and arrangement” copyright in its official reports of judicial opinions have fared so poorly since Feist. See Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998); see also BellSouth Advertising & Publishing Corp. v. Donnelley Info. Publishing, 999 F.2d 1436, 1442–43 (11th Cir. 1993) (“entirely typical” headings and organizational structure of a Yellow Pages telephone directory insufficiently original to qualify for copyright protection).
As a policy matter, allowing a state (or anybody else) to monopolize publication and distribution of statutes is a terrible idea. It does nothing to incentivize the creation of new expressive works and prevents improvements in the accessibility of public domain materials. Professors Patterson and Joyce said it best, in an essay that the Office of Legislative Counsel would do well to review:
Education, livelihood, entertainment, and even participation in the political process, all are governed in some measure by copyright. For the most part, the effect of copyright is affirmative, for it plays a large role in making ideas available. But the effect becomes negative when it is used to give precedence to private proprietary rights over the civil rights of citizens.
… [P]rotecting page (and, by analogy, section) numbers in legal materials … in no way ‘Promote[s] the Progress of Science’—in this instance, legal science. Where a single publisher is the sole compiler of a jurisdiction’s case reports and statutes, permitting that publisher to control others’ use of such numbers produces one of two results: either it impedes more efficient access to the law by restricting the use of competitors’ developing technologies, …; or it in effect imposes a tax for the use of the law, preventing effective price competition by sanctioning the imposition of license fees on the publisher’s rivals.
… To the extent that a law publisher’s claims for copyright protection rest on page numbers in case reports and chapter and section numbers in statutory compilations, the claims must fail, for the publisher’s contributions to the works are ministerial rather than discretionary, and the element of original expression is lacking. As to such features, the publisher is a publisher rather than an author, and not entitled to the protection of a copyright monopoly.
L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719, 809–10 (1989).
UPDATE #1: The Washington Times picks up the story.
UPDATE #2: More commentary from Bill Patry and Berkman‘s Citizen Media Law Project. The inside scoop is available from Justia’s own Law, Technology, and Legal Marketing Blog. Also, it looks like credit for breaking the original story belongs to Ars Technica. A more sympathetic view of the Office of Legislative Counsel’s assertions is available at the Oregon Legal Research blog.
UPDATE #3: Victory, of a sort. The State has decided “not to enforce copyright claims” to the text of its statutes. In other news, the editors of Info/Law have decided not to overrule decisions of the Supreme Court of the United States.