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<nettime> Techdirt > Georgia Sues Carl Malamud for Publishing State
nettime's_court_reporter on Sat, 25 Jul 2015 17:00:32 +0200 (CEST)


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<nettime> Techdirt > Georgia Sues Carl Malamud for Publishing State


<https://www.techdirt.com/articles/20150723/17125231743/state-georgia-sues-carl-malamud-copyright-infringement-publishing-states-own-laws.shtml>

State of Georgia Sues Carl Malamud for Copyright Infringement for
Publishing the State's Own Laws

from the that-seems...-unwise dept

by Mike Masnick Fri, Jul 24th 2015 6:10am

Two years ago, we wrote about the state of Georgia ridiculously
threatening to sue Carl Malamud and his site Public.Resource.org for
copyright infringement... for publishing an official annotated copy of
the state's laws. This followed on a similar threat from the state of
Oregon, which wisely backed down. Malamud has spent the last few years
of his life doing wonderful and important work trying to make sure that
the laws that we live by are actually available to the public. The
specific issue here is that while the basic Georgia legal code is
available to the public, the state charges a lot of money for the
---Official Code of Georgia Annotated." The distinction here is fairly
important -- but it's worth noting that the state points directly to the
annotated version as the official laws of the state. Furthermore, the
annotations are very important in understanding and applying the
relevant interpretations and case law (case law is a part of the law,
after all). And then, the question is whether or not the law itself
should be subject to copyright restrictions. Malamud has long argued no,
while the state has obviously argued yes, probably blinded by the
revenue from selling its official copy of the annotated code. Update: In
the original post, I overstated the claim that the courts would directly
rely on the annotations. While the annotations are often used to better
understand the relevant case law, it does not appear that the courts
directly refer to the annotations themselves.

It took two years, but the state has now done the absolutely ridiculous
thing of suing Malamud. It is about as ridiculous as you would expect
again focusing on the highly questionable claim that the Official Code
of Georgia Annotated is covered by federal copyright law -- and that not
only was Malamud (*gasp*) distributing it, but also... creating
derivative works! Oh no! And, he's such an evil person that he was
encouraging others to do so as well!

     This action for injunctive relief arises from Defendant's
     systematic, widespread and unauthorized copying and distribution of
     the copyrighted annotations in the Official Code of Georgia
     Annotated ("O.C.G.A.") through the distribution of thumb drives
     containing copies of the O.C.G.A. and the posting of the O.C.G.A. on
     various websites. Defendant has facilitated, enabled, encouraged and
     induced others to view, download, print, copy, and distribute the
     O.C.G.A copyrighted annotations without limitation, authorization,
     or appropriate compensation. On information and belief, Defendant
     has also created unauthorized derivative works containing the
     O.C.G.A. annotations by re-keying the O.C.G.A. in order to make it
     possible for members of the public to copy and manipulate the
     O.C.G.A., thereby also encouraging the creation of further
     unauthorized derivative works.

Believe it or not, the State of Georgia is actually claiming that it
needs the copyright protections here to incentivize it to create these
annotated copies of the law. Apparently, without copyright, Georgia's
law would remain sadly unannotated.

     Each of these annotations is an original and creative work of
     authorship that is protected by copyrights owned by the State of
     Georgia. Without providing the publisher with the ability to recoup
     its costs for the development of these copyrighted annotations, the
     State of Georgia will be required to either stop publishing the
     annotations altogether or pay for development of the annotations
     using state tax dollars. Unless Defendant's infringing activities
     are enjoined, Plaintiff and citizens of the State of Georgia, will
     face losing valuable analysis and guidance regarding their state
     laws.

This is ridiculous. In what world does making the law require copyright
protection?

The State is particularly upset that Malamud ran some crowdfunding and
donation campaigns seeking to raise money to keep his operations
running, saying that he raised this money "to assist the Defendant in
infringing the State of Georgia's copyrights." The State also complains
that he uploaded the code to the Internet Archive under a CC 0 public
domain dedication, saying (incorrectly) that this implies that he
claimed that he was the owner of the annotations. That's not true at
all. He's claiming that everyone owns them, because they're the law.

Later, the lawsuit makes Malamud out to be some sort of horrible person
on a "crusade" to make the laws free, and to "control the accessibility
of U.S. government documents."

     On information and belief, Carl Malamud has engaged in an 18
     yearlong crusade to control the accessibility of U.S. government
     documents by becoming the United States' Public Printer -- an
     individual nominated by the U.S. President and who is in control of
     the U.S. Government Printing Office. Carl Malamud has not been so
     nominated.

It takes a special kind of ridiculousness to argue that someone seeking
to make the laws of the land more accessible to the public is somehow
looking to "control the accessibility" of those laws. But, welcome to
the State of Georgia, apparently home to just that kind of special
ridiculousness.

The complaint further submits as an exhibit this Columbia Journalism
Review article about Malamud from 2009 in order to support Georgia's
ridiculous claim that Malamud sees what he's doing as a form of
---terrorism." The lawsuit says the following:

     Carl Malamud, has indicated that this type of strategy has been a
     successful form of "terrorism" that he has employed in the past to
     force government entities to publish documents on Malamud's terms

Of course, all that's likely to really do is further educate the court
about what Malamud is really looking to do: make the laws of the land
more publicly accessible.

Either way, this seems like a ridiculous move for Georgia. Going after
Carl Malamud for copyright infringement for helping to make the public
more aware of the law in the state of Georgia just seems ridiculous. And
for all of the state's repeated claims in the lawsuit that it's doing
this to protect taxpayers, one has to ask why it's spending taxpayer
revenue on filing such a ridiculous lawsuit?

Back when the state of Georgia first threatened Malamud two years ago,
he responded as such:

     It is a long-held tenet of American law that there is no copyright
     in the law. This is because the law belongs to the people and in our
     system of democracy we have the right to read, know, and speak the
     laws by which we choose to govern ourselves. Requiring a license
     before allowing citizens to read or speak the law would be a
     violation of deeply-held principles in our system that the laws
     apply equally to all.

     This principle was strongly set out by the U.S. Supreme Court under
     Chief Justice John Marshall when they stated "the Court is
     unanimously of opinion that no reporter has or can have any
     copyright in the written opinions delivered by this Court, and that
     the judges thereof cannot confer on any reporter any such right."
     Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834). The Supreme Court
     specifically extended that principle to state law, such as the Ofcial
     Code of Georgia Annotated, in Banks v. Manchester (128 U.S. 244,
     1888), where it stated that "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."

This still applies, and it seems that the State of Georgia might want to
re-evaluate its choice of targets here.


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