Can States Copyright Their Statutes?

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 decidednot 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.

9 Responses to “Can States Copyright Their Statutes?”

  1. I wish Veeck had been decided earlier – I could have used a FOIA request to get a copy of the building codes in my city a few years ago while doing a “do-it-yourself” renovation. It’s tough to follow laws that you have no access to!

  2. [...] Blog ("Oregon goes wacka wacka huna kuna") — ars technica — The Washington Times — Info/Law Support (sort of): Oregon Legal Research (blog) posted by msalt (21 comments total) 2 users [...]

  3. [...] have commented on Oregon’s copyright claims. See Professor Tim Armstrong’s post “Can States Copyright Their Statutes?” on Info/Law and William Patry’s post “Oregon goes wacka wacka huna kuna” [...]

  4. [...] where it gets interesting: Oregon isn’t claiming copyright in the laws themselves. Indeed, according to what appears to be well-established law, they can’t. Instead, they’re claiming copyright in “the arrangement and subject matter of Oregon [...]

  5. In addition to the posted reference to one of the decisions in the the Matthew Bender & Co. v. West litigation at F.3d 693 (2d Cir. 1998), even more relevant to the issues here is the decision in the HyperLaw text part of this litigation, Matthew Bender v. West, 158. F. 3d 674 (2nd Cir. 1998), aff’g, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997, cert. denied sub. nom. West v. Hyperlaw, 526 U.S. 1154 (1999). West attempt to protect its versions of cases by sprinkling the text with their non-original non-creative editorial “enhancements” was soundly rejected.

    Professor Paterson, whose article is cited above, filed an amicus brief in support of HyperLaw.

    Patterson was prescient as to the Oregon claims – in the brief he states in his concluding paragraph:

    “Moreover, although state judicial opinions are not the subject of this litigation, this Court may take judicial notice of West’s claim for copyright of the opinions of state judges. Oasis Pub. Co. v. West Pub. Co., 924 F. Supp. 918 (D. Minn. 1996). A ruling for West in this case will serve as precedent for West’s claim of copyright for state law. But in our federal system, states are sovereign entities, Seminole Tribe of Florida v. Florida, 517 U.S. 609, 116 S. Ct. 1114, 1122 (1996) (“each State is a sovereign entity in our federal system”), and the sovereign that makes law has a duty to provide the public with access to that law. Thus, adopting West’s argument, federal copyright for law that vests control of access to the law in a private publisher means two things: 1) The federal government has abdicated a sovereign duty and, in doing so, 2) the federal government has invaded the sovereignty of state governments./Footnote25 Section 105 prevents the first, section 103 prevents the second.”

    His Footnote 25 states;

    The problem is exacerbated by the fact that copyright law is exclusively federal law. Thus, the copyright statute preempts state law and denies the states any right to adjudicate the claim of West that it has a copyright for state law. 17 U.S.C. § 301.

    The opinions and documents are to be found at my web site http://www.hyperlaw.com

    Alan

  6. [...] sping, I blogged here about the State of Oregon’s attempt to assert copyright over the language and organization of [...]

  7. Thanks for the article. We have reproductions of portions of state codes on our website for user reference purposes. I had been looking for a summary of the law on this topic. This is very useful.

  8. The state of alaska claims copyright protection for all photographs on its website. My impression was that anything published on a website of a public entity is in the public domain. In other words, I thought that a public entity did not have standing to invoke a copyright claim. Is this wrong? It sounds as if under some circumstances a public entity may have such standing. Could anyone direct me to the applicable provisions of federal copyright law? thank you.

  9. [...] can court pleadings,  state regulations, statutes and the rendered opinions of our courts, (see http://blogs.law.harvard.edu/infolaw/2008/04/16/can-states-copyright-their-statutes/  for an excellent overview.)  I contacted the BOG reps I know, Alan Gallas, Paul Henry, Allen [...]