(image courtesy Flickr user CursedThing)
Let me start this by saying that I love the state of Oregon. They seem to get it on a lot of ways. I love the way they vote (from a procedural angle); I love Portland, and its fantastic used bookstore that occupies a city block; and one of my best friends is graduating this year from Reed, which is pretty neat school I had a chance to visit while on tour two Septembers ago.
It’s almost surpising that the “Chillest State in the Union” would find itself embroiled in a copyright scandal that has strong roots in the pockets of big publishing. And yet, here we are.
Ars Technica broke the story about a month ago. The State of Oregon has started going after websites that repost in full the laws of Oregon, most notably sending a Cease & Desist letter to Justia, a resource website for lawyers and law students for posting the Oregon Revised Statutes in full (which was later withdrawn, but still debated). A similar letter was sent to the open access site Public Resource.
Two key arguments immediately arise in the head of this budding legal mind. First of all, from a common sense angle, people in the US are presumed to know the law. It’s the only way enforcement could ever work (as it removes the, “oh, I didn’t know jaywalking/scalping/double homicide was illegal, so you can’t charge me,” excuse). Following that path, it would seem to be in Oregon’s best interest to have the law widely disseminated, so it could be understood fully. Second, there’s the fact that most government works cannot be copyrighted (judicial opinions and public ordinances) most notably. Now, a claim on the copyright of the law would be patently false, but the Oregon State Legislature is claiming copyright only on, to quote via the Citizen Media Law Project:
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 such other incidents as are the work product of the Committee in the compilation and publication of Oregon law.
While I am trying pretty hard to not skew so hyperbolic on this one, do you smell something? No surprises here, Oregon is trying very hard to keep the licensing interests of either another publisher (as Public Resource guru Carl Malamud observed, Thompson West is currently publishing these and getting off scott-free, without a license) or generate licenses and revenues around what should be free data.
As Sam Bayard of CMLP observes, it would be hard to assess the validity of this claim without carefully observing how the published version is different from the version that leaves the legislature, but two clear issues come out immediately:
- The doesn’t pass the sniff test of the “originality” requirement. As the Supreme Court so keenly observed in Feist v. Rural, you need some modicum of creativity, some infinitesimal spark behind the copyright (we are aiming, after all, to protect the expression of ideas). It’s hard to believe there’s enough originality in organizing the statutes under categories and numerically ordering them to constitute copyright. Perhaps a better database system around this data could be patented, and if we were protecting the interests of a website instead of a publisher an argument seems feasible. But we’re not, and it isn’t.
- Such rhetoric about controlling the organization of the statutes leverages a monopoly around public domain content. Such a control is not in the interests of the country, as pains were taken to include the freedom of content generated by the government on behalf of the people.
All in all, as Ars Techinca reported yesterday, we’re setting ourselves up here for a pretty big copyfight, which may wind its way up the courts right to the big one behind the Capitol.