Can the Law Be Copyrighted?

Katherine Mangu-Ward | September 3, 2008

In California, the law is copyrighted. Meaning copying and distribution are limited. Openness crusader Carl Malamud is displeased by this. So he's trying to get sued.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Listen to a pretty good, anecdote-packed Google talk by Malamud, who forced the SEC to put their corporate filings online in 1994, here.

Via Tim Kirk

Comments

|9.3.08 @ 3:46PM|#

That's theft! That's piracy! That's larceny, burglary, kidnapping!!! Kill him!! Kill him!!

|9.3.08 @ 3:52PM|#

This is disgusting... the citizens don't even have the right to view without payment the laws that they elect legislators to write?

NotThatDavid|9.3.08 @ 3:52PM|#

You have to pay two thousand fucking dollars to get a copy of the state code? Two. Thousand. Fucking. Dollars? Jesus christ, forget snark, that's just fucking disgusting.

|9.3.08 @ 3:56PM|#

I know that this is important and I should care about it and shit but holy jesus god in fucking heaven THIS IS THE MOST BORING ISSUE EVER IN THE HISTORY OF TIME, THE UNIVERSE, AND ROSEANNE ARNOLD'S CAVERNOUS VAGINA

|9.3.08 @ 3:56PM|#

How can they possibly expect the citizenry to follow the law if you don't have access to it?

Elemenope|9.3.08 @ 3:57PM|#

This Malamud fellow rocks. Slashdot did some good coverage on this thing earlier today.

It was pointed out in their blurb that you cannot legally restrict access to that which citizens are *required* to know and be familiar. Sounds sensible to me.

Ironchef|9.3.08 @ 3:58PM|#

Link to .torrent plz?

Dixiecrat|9.3.08 @ 3:59PM|#

Total B.S. Way to go the oh so forward-thinking California.

|9.3.08 @ 4:01PM|#

So he's trying to get sued.

Nothing gets me to like somebody faster than flagrant jackassery towards the forces of evil.

I know that this is important and I should care about it and shit but holy jesus god in fucking heaven THIS IS THE MOST BORING ISSUE EVER IN THE HISTORY OF TIME, THE UNIVERSE, AND ROSEANNE ARNOLD'S CAVERNOUS VAGINA

Oh, come one, it's not like she's talking about Net Neutrality here.

|9.3.08 @ 4:02PM|#

What part of the laws belong to the people does CA not understand. To me, it's just another example of how the for the people, of the people, by the people style of government is being abandoned and government is becoming an entity beyond the citizenry.

lunchstealer|9.3.08 @ 4:18PM|#

I'd have to say that this would negate the idea that ignorance of the law isn't a defense. Ignorance of the law is only a defense if the law is freely available to all. At least free-as-in-beer. From a practical standpoint I'd say that they can copyright it and then release it under a free-to-copy-but-not-modify license.

I don't even begin to understand who thought this was OK (except bureaucrats think anything is OK so long as it serves the purposes of the bureaucracy).

|9.3.08 @ 4:18PM|#

The market is law offices and libraries. It *should* be free online, but if people want to see the law, there's probably a library nearby that has access to it.

Robert Goodman|9.3.08 @ 4:27PM|#

It runs against the entire purpose of copyright law. What, is this to encourage Calif. to write laws so they can benefit from their sale?

Same with patents held by gov't entities. Trademarks, well, that's OK, even "I [Heart] NY".

|9.3.08 @ 4:29PM|#

Heck, California's laws are so nonsensical and voluminous at this point as to be secret. Why not just go completely underground and make them secret? Screw copyright, in other words.

Interestingly, the federal government can't do this. The copyrighting bit, I mean.

Kaganspawn|9.3.08 @ 4:30PM|#

Even those of us who believe that respect for copyright is consistent with overall support for property rights (grow up Mr. Riggs) know that the government cannot consistent with due process claim copyright in the laws and regulations the people are supposed to follow.

Hayekian Dreamer|9.3.08 @ 4:33PM|#

That's ridiculous. At least sometimes Californians can beat the law (I mentioned this in an earlier thread but no one picked up on it, which stunned me, usually Reason picks these stories up right away)

|9.3.08 @ 4:34PM|#

What part of "it's stealing" don't you understand? States like California won't have any incentive to inundate us with awesome laws if thieves like Malamud pirate the laws. What about the workaday legislator with kids? What's he going to do now? No matter how you look at it, it is stealing.

|9.3.08 @ 4:35PM|#

"the government cannot consistent with due process claim copyright in the laws and regulations the people are supposed to follow."

You can get access to the laws at the library. Due Process has nothing to do with the State of California's right to make money from the fruit of its labor.

|9.3.08 @ 4:38PM|#

So if I want to criticize a stupid California law and reprint a whole provision of the code, I might have to defend myself from an action by the state? Granted, I'd have a very clear fair use defense (as well as a First Amendment case), but the fact that you could be forced to defend yourself in court. . .nah, that couldn't be a bad thing.

Windypundit|9.3.08 @ 4:39PM|#

"How can they possibly expect the citizenry to follow the law if you don't have access to it?"

I'm sure the residents of California are welcome to visit the official archives and examine the law as much as they want.

This is all about charging law firms and other interested parties for copies of the code. Lots of jurisdictions pull this crap, especially with the building codes, because every contractor pretty much needs a copy.

Although it probably won't pass, it shouldn't be too hard to get some congressman to sponsor a bill to prevent states from doing this. It's not even a federalism issue: Copyright is entirely a federal power.

CAL|9.3.08 @ 4:41PM|#

How can they possibly expect the citizenry to follow the law if you don't have access to it?

Ignorance is no excuse.

Governor Stallone|9.3.08 @ 4:44PM|#

I am the law.

Mike Laursen|9.3.08 @ 4:45PM|#

How can they possibly expect the citizenry to follow the law if you don't have access to it?

You'd go look it up at a public library. And that was a perfectly acceptable answer in the primitive pre-Internet world.

|9.3.08 @ 4:55PM|#

2 grand for a set of code books is pretty reasonable.
http://www.leginfo.ca.gov/calaw.html

Where CA has posted the code online for free.

Basically, CA holds the right to publish its code and sell it, rather than Westlaw or maybe Lexis-Nexis. Net effect for the citizenry=zero. It's not like the legal publishing world is a buzzing hive of competition.

Tempest in a tea pot.

libertytexan|9.3.08 @ 5:03PM|#

First 2 lines of article:

"California's building codes, plumbing standards and criminal laws can be found online. But if you want to download and save those laws to your computer, forget it."

I still don't think its right but its not the same as having no access to the law. You CAN in fact read the law online (if the article is correct).

texas_libertarian|9.3.08 @ 5:04PM|#

This is just one more reason to hate California more. What a shithole.

|9.3.08 @ 5:57PM|#

I'm a law librarian - this issue (free access to laws and regs) is an important one, and it's been around for a while.

Most states make at least part of their laws available online - note: at least part. Many states offer only selected codes or statutes online; I haven't looked for state laws outside of Texas in a while but I seem to recall that NY does not have its entire body of laws online.

Further, and again IIRC, every state's website with statutes and codes will contain some kind of warning to the effect that "we don't guarantee that the information you find here is current or correct. The official law of XXXX is the XXXXXX version published by XXXX" - most states outsource their "official" statutes or codes to Lexis or Thomson/West and the information on the states' website is not considered official.

Texas makes its entire body of law available through the state leg's website, which is cool, but it takes months and months after a legislative session is concluded for the online statutes to be updated. In the meantime, if you want the current law, you have to go to Vernon's - which is published by Thomson - and that means going to a library or getting online to Westlaw or Lexis.

Law libraries, needless to say, must purchase the print sets.

So it's not just the states this guy has to fight - I suspect that the commercial publishers would fight him too.

Elemenope|9.3.08 @ 6:14PM|#

This is just one more reason to hate California more. What a shithole.

Sez the guy from Texas.

"[pzzst]Pot to kettle! Pot to kettle! Come in please!"

"Go ahead, pot. Over."

"You are black! Repeat, you are black!"

"Thanks, pot. Over, out."

|9.3.08 @ 6:41PM|#

"California's building codes, plumbing standards and criminal laws can be found online. But if you want to download and save those laws to your computer, forget it."

I still don't think its right but its not the same as having no access to the law. You CAN in fact read the law online (if the article is correct).

Who wants to guess whether the State of California website is "accessible to the blind" as required by state and federal law?

Target just got hammered for 6 megabucks over that. Surely access to the law is more important than access to Target's website.

Please, please, pretty please, check this out for me Reason.

|9.3.08 @ 6:52PM|#

J sub D,

That's friggin' brilliance. I seem to recall that the California law in question was kind of an ADA on steroids, so there's a decent chance that it doesn't exempt the government.

I'd love to see a Reason article calling out California on this, if, in fact, the law and the facts work out right. Reason's special Schadenfreude edition.

texas_libertarian|9.3.08 @ 7:02PM|#

This is just one more reason to hate California more. What a shithole.

Sez the guy from Texas.

"[pzzst]Pot to kettle! Pot to kettle! Come in please!"

"Go ahead, pot. Over."

"You are black! Repeat, you are black!"

"Thanks, pot. Over, out."

Hahaha! That's funny Eleme.

Mike Laursen|9.3.08 @ 7:16PM|#

Who wants to guess whether the State of California website is "accessible to the blind" as required by state and federal law?

And it's not just accessibility for blind people. They need to cover motion-impaired folks, too. Maybe the hearing-impaired, if they provide audio or video content.

|9.3.08 @ 7:43PM|#

From this link it looks like the guy has a good chance of winning.

http://stason.org/TULARC/business/copyright/3-6-Can-the-government-copyright-its-works.html

quick quote: "There is no statute, case,
or regulation that indicates that a state cannot copyright its laws.
However, it is the position of the U.S. Copyright Office that a state's laws may not be copyrighted."

|9.3.08 @ 7:50PM|#

You can get access to the laws at the library. Due Process has nothing to do with the State of California's right to make money from the fruit of its labor.

Come on -- put down Atlas Struggled.

Desmo|9.3.08 @ 8:05PM|#

Publishing them costs money. Posted on a web page they should be available to all.

|9.3.08 @ 8:11PM|#

I was just talking with my wife about this, and it occurred to us that if California was granted a copyright to it's laws, all other states would be in copyright violation, or be required to pay California for use of the laws.

Can you imagine CA taking Arizona to court claiming millions in lost revenue due to AZ not paying $10 to them for every jaywalking ticket it issued.
LOL there is no way a state could legally claim copyright to a law.

|9.3.08 @ 8:15PM|#

This isn't a boring issue. This is really terrible actually. To think you can't just go and have a database of the (probably millions) many laws we have that the public can look at is really crazy. These are laws that affect every citizen, everyday. They are there to be followed, yet you must pay in order to know the laws that govern daily life. This is retarded and I hate California(the government, not the state). Thanks again Cali, for showing us your true idiotic colors. I can't believe it.

|9.3.08 @ 8:26PM|#

I think that in all this "they can/cannot copyright" banter, you all have missed the most important part:

he posted the entire 38-volume California Code of Regulations

38 volumes of laws that are legally enforceable against the populace. This is just one state. Thirty-eight. Think about it.

|9.3.08 @ 8:39PM|#

This whole story is bullshit, for one very simple reason: the state doesn't charge you to peruse its laws. I can go to California's federal website and pull up any law I want, and it doesn't cost me a dime from the state.

Someone proove to me that Cali charges to own copies of its law books and I'll go fuck off somewhere.

|9.3.08 @ 8:52PM|#

I would like to personally thank this person for supplying me with a job of putting SEC Filings online. Thank you, thank you very much.

Trial Lawyer|9.3.08 @ 8:52PM|#

I'm not wasting my time reading this thread. Lost interest about 10 opinions down. RAW state and federal code is FREE ONLINE at www.findlaw.com among other places. Additionally, the copyrightable part of the code is the choice of annotated case law that follows each code section. That's the real value in understaning the law, or how the courts have interpreted it. The effort and choice into which cases to include is what the state is protecting. Most all states do this. Your hero is no different than an online file sharer.

|9.3.08 @ 9:06PM|#

We are in a land of law of precendent. This is prolly a power ruse to back up the removal of habeus corpus fron the Constitution. e.g. We can hold people without cause because they would haveto pay to see the charges

Pillock|9.3.08 @ 9:15PM|#

vomit: Go back to 4chan and take your over-privileged, suburbanite, ignorance with you. Retard.

notyours|9.3.08 @ 9:18PM|#

The product of any government research or documentation thereof is by federal statute a public work. A classic example is NASA photographs, which are in the public domain. http://en.wikipedia.org/wiki/Public_domain#United_States_law for confirmation. They are most likely charging money to offset the cost of the medium of transmission - exactly like a Linux distribution charging $5 per CD.

|9.3.08 @ 9:19PM|#

Trial Lawyer-

You are not telling the whole story.

1. The state is already being paid handsomely.

2. There is no specific grant of authority given to any state in its constitution empowering the state to copyright its annotationed version of its statutes and therby compel royalty payments from those who are compelled to obey the statutes.

3. If the real value in the law is the decisional law and the analysis of the same, of what value are the free on-line versions that only provide one with the statutes and nothing else?

Robert Goodman|9.3.08 @ 9:59PM|#

There are other outrageous copyrights out there. I notice the NCAA has a copyright notice on at least its football rules; so does the NFL. Of course the NFL's rules are a much amended (over many years) version of NCAA's, which they started out using. When the NCAA started putting on copyright notices, I don't know, nor whether Spalding, who used to compile & publish their football rules, copyrighted previous editions. Anyway, the exact wording of these & other football rule books were freely adopted & amended by various governing bodies, and there's no way at this late date any of them could claim a rightful copyright on any but possibly tiny portions of them. A good argument could be made that NCAA's (and other bodies') rules committee's proceedings are news, and that inasmuch as the exact wording of their rules matters to the sports news, they're news too and therefore not copyrightable. Plus, they're not exactly literary works but more like useful articles, which however behave in the public domain.

So people slap copyright notices on all sorts of stuff they'd never prevail in defending.

Senator Mix-A-Lot|9.3.08 @ 10:03PM|#

Does this mean I can't sample from other legislation? I wanted to give props to the authors of H.R. 1610, from which several key clauses of my recent bill were sampled.

|9.3.08 @ 10:15PM|#

What a great reason to keep constantly changing the laws, forcing you to pay for the new "edition". Just like college textbooks. Then, every year, you could make a different set of behaviors illegal, and either force you to pay for a new copy of the laws, or arrest you for copyright infringement if you follow the law but don't own a legal copy!

|9.4.08 @ 12:24AM|#

Uh...the CA Code is available...free...online. It's called Google...look into it.

|9.4.08 @ 1:24AM|#

Yeah, it's online. Screw all those people without internet access, or working 2 jobs while trying to start a business and not enough time to stop by the all important and *constantly* up to date library.

Oh yeah, and screw those idiot founding fathers who stated that all law should be written in such a way to ensure everyone understood it.

38 volumes? In other place this is called a pryamid scheme.

tactsol|9.4.08 @ 6:55AM|#

Well, if you read closely you'll see that it's free to go online and read the codes, which anyone can do from a public library.

You aren't allowed to download the codes to your hard drive.

I agree that it's stupid, but a lot of people seem to think that you aren't allowed to even read the codes without paying.

Jack|9.4.08 @ 9:01AM|#

Maybe, we the people, can fight back... what if we all copyrighted our names and addresses and made the government pay us obscene amounts of money to print our own Drivers Licenses... or just didnt tell them that we did that and sue them for it after the fact. I know this probably wouldnt work since I am sure there is some sort of paper that is signed.

T|9.4.08 @ 9:30AM|#

Maybe, we the people, can fight back... what if we all copyrighted our names and addresses and made the government pay us obscene amounts of money to print our own Drivers Licenses... or just didnt tell them that we did that and sue them for it after the fact.

Been done. Failed spectacularly, as in criminal charges were filed spectacularly. But, hey , try again. It might work out better this time.

|9.4.08 @ 10:15AM|#

oh, look! another example of Corporate America slicing and dicing this country up among themselves. you talk about "the State", but you never mention who Owns the State. i'll give you a hint: its NOT the People of California.

|9.4.08 @ 10:19AM|#

38 volumes of laws that are legally enforceable against the populace. This is just one state. Thirty-eight. Think about it.

Yeah, seriously. For a while now I've been wanting an amendment to my state's constitution requiring laws be read in full before a session of the general assembly in order to be considered promulgated. It would be at least some limit on their ridiculous output.

|9.4.08 @ 10:47AM|#

oh, look! another example of Corporate America slicing and dicing this country up among themselves. you talk about "the State", but you never mention who Owns the State. i'll give you a hint: its NOT the People of California.

Big bad corporations own the government? And which side, pray tell, has the firepower, and demonstrates every day that they aren't afraid to use it?

"The Pope? How many divisions does he have?"

Tom Callahan|9.4.08 @ 11:03AM|#

I can understand paying for the printed copy (assuming it's ALSO freely available in print form in libraries, etc.) because there are printing costs, but $1556 for a digital copy? 38 PDFs or Word docs or whatever? Bandwidth does have costs but maybe a few cents' worth, not $1556! And how much is a blank CD these days, 10 cents in bulk, add a few bucks for duplication and shipping?

It's great that it's available online (actually it would be inconceivable for it not to be at this point) but why in the world is a downloadable copy $1556 -- that means you can't read it offline, if you have a modem you have to be connected to see it, etc.

The only way something should have a charge for a downloadable version is if it's a COMMERCIAL product being sold for a PROFIT, and last I checked government was not (supposed to be) a for-profit entity.

|9.4.08 @ 1:34PM|#

"Uh...the CA Code is available...free...online. It's called Google...look into it."

I would argue against this, except I don't have access to a computer.

Dello|9.4.08 @ 2:24PM|#

Kwix,
"38 volumes of laws that are legally enforceable against the populace. This is just one state. Thirty-eight. Think about it."

In all fairness, the shortest one is actually only 634 pages...

|9.4.08 @ 5:57PM|#

The state generates about $880,000 annually by selling its laws

$880k? That would be chump change for the California state government. That can't be that concerned over the money, this is probably just some petty exercise of power.

ron|9.7.08 @ 10:34AM|#

Go to WWW.leginfo.ca.gov. It's free