Copyright1-600

Public access to the law would seem a non-controversial proposition.  The practice of allowing the people to read and familiarize themselves with their legal rights and obligations started in 449 BCE, when the Twelve Tables of Roman law were posted in the forum.  Today, laws and codes are posted online, and are available to anyone with computer access.

The laws may be freely available to read, but some states are making the claim that reading is as far as your access goes.  As open-government activist Carl Malamud has learned, state governments are claiming that they own the copyright to state laws.  Mr. Malamud has been threatened with a lawsuit by the Georgia Code Revision Commission for posting the Official Code of Georgia Annotated on his website.  The claimed copyright would mean that no one could repost or republish state laws without permission of the state.

Do states really have the exclusive right to decide how state laws are used?  The copyright statutes are silent on the subject.  The law provides that there is no copyright protection “for any work of the United States Government.”  17 U.S.C. § 105.  Anything produced by the federal government—statutes, court cases, regulations—are available to anyone to use, freely and without permission.  But this statute applies only to federal government materials.  Nothing is said about anything produced by a state government.

Even though the Copyright Act is silent on the protection given to state laws, courts have consistently refused to find that state laws are protected by copyright.  In the case of Banks v. Manchester, 128 U.S. 244 (1888), the Supreme Court held that the State of Ohio could not claim copyright in the reports of court decisions.  The Court stated that:

The question is one of public policy, and there has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, [33 U.S.] 8 Pet. 591 [1834], that no copyright could, under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. 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.

128 U.S. at 253.  State statutes have also long been denied copyright protection by court decision (see Howell v. Miller, 91 F. 129 (6th Cir. 1898)).  The general proposition that “no one can obtain the exclusive right to publish the laws of a state in a book prepared by him” is something that “cannot be doubted.”  91 F. at 137.

If the law is so clear, why do states think they have a copyright in their laws?  The reason is that the claims are for the features added to the publications.  For example, the cease and desist letter sent by the Georgia Code Revision to Mr. Malamud notes that the State of Georgia “asserts no copyright in the statutory text itself or in the numbering of the Code sections.”  The material claimed to be protected is not described in the letter, but the official Code of Georgia Annotated has material prepared by Lexis Nexis (as work-for-hire, on behalf of the State of Georgia) that does not appear in the unannotated version of the Code (which, as the Code Revision Commission’s letter points out, is available to use for free without restriction).  Copyright is claimed in the added materials.

Copyright2-300The Georgia issue is a matter of parsing what was added by whom.  Additions to public domain material may be protected by copyright, but Mr. Malamud claims that, in the case of Georgia, these additions have become part of the official law of the state.  This is not an easy question to resolve.  Ultimately, the question may hinge on the definition of “official law of the state.”

Privately prepared codes add a twist to the issue.  State and local governments that enact building codes usually rely on codes prepared by private organizations.  For example, forty-three states, the District of Columbia, and every territory except American Samoa have adopted codes that set energy efficiency standards for commercial buildings.  These codes were prepared by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE), a private building technology association.  The energy codes are usually adopted by reference, with any local variations noted.  The text of a code is seldom reprinted by the jurisdiction that adopts it.  ASHRAE claims that it owns the copyright to codes it prepares, and brought suit against Mr. Malamud’s organization, Public.Resource.Org, for posting copies of codes online.

ASHRAE may not have a strong argument in this case.  A similar claim was brought against Peter Veeck, the proprietor of a website that discussed issues related to north Texas (his site, http://www.regionalweb.texoma.net/cr, is no longer operational).  Some cities in the area had adopted building codes promulgated by the Southern Building Code Congress.  Mr. Veeck purchased electronic copies of the codes from the Council, and then posted them on his website.  He labeled them as the building codes of the cities, and not as model codes from the Council.

The Council sued Mr. Veeck for copyright infringement, and suceeded at the District Court level.  Mr. Veeck appealed, but the Council won in the first appellate hearing of the case.  The case was then heard en banc by the U.S. Fifth Circuit Court of Appeals, which found for Mr. Veeck.  See Veeck v. Southern Building Code Congress International, Inc., 293 F. 3d 791 (5th Cir.), cert. den’d 539 U.S. 969 (2002).  The court held that the Council’s “model codes” were protected by copyright, but once those codes were adopted as law, they lost their protection.  Mr. Veeck reprinted the codes as the law of the relevant cities, and did not identify them as being model codes from the Council.  In doing so, he was reprinting the law, and so was not reprinting copyrighted material.

The distinction (and, probably, the legal liability) depends on the presentation.  If model codes are reprinted as “model codes issued by . . . ,” that will be copyright infringement.  If they are presented as the “official building code of  . . .  ,” that will be allowed.  Details count.