If the state—the public—commissions the annotations, then we—the public—own them and therefore have the right to access them. This is what happens when you put an ideologically hidebound Republican Party hostile to anything “public” in control. They’ll sell your citizenship if you’ll let them.
2
While this article focuses on the case with Georgia, Mr. Malamud and his group have been encountering opposition in many arenas. For instance, your local builder who wants to be sure to comply with building codes probably has to pay to access them. Don't be complacent about your local and state government. Georgia is not the only place with a problem.
6
"Georgia is not the only place with a problem."
Thanks for pointing that out.
Another frightening trend is the use of uniform or pattern jury instructions, which may be copyrighted.
See, for example, "Modern Federal Jury Instructions" at a well-known online book retailer.
The online preview of the copyright page shows that the publisher makes no claim of copyright ownership "in the text of statutes, regulations, and excerpts from court opinions quoted within this work."
However, everything else is copyrighted by the publisher. And jury instructions may be used by a judge to instruct a jury on how to interpret the law.
See the Wikipedia article "Jury instructions".
VTN: "Another frightening trend is the use of uniform or pattern jury instructions, which may be copyrighted."
Clarification: Uniform or pattern jury instructions are a great idea -- they are much easier to read and understand than statutes, regulations, and court opinions.
What is "frightening" is that, if they are copyrighted, it may be very expensive to find out what they say. An electronic copy of "Modern Federal Jury Instructions, Volume 1 (Criminal)" is over $2400 at a well-known online book retailer.
And that puts people at a severe disadvantage, if they cannot afford to buy them or they don't have access to a law library that has them.
Obviously, people with money wouldn't necessarily need to buy them, because they can afford to hire a lawyer.
We have secret laws, secret courts, secret proceedings. All clearly against the letter of the constitution.
But the legal guild encourages word salad to ensure its monopoly and the rents it derives from them.
Notice no one speaks of Freedom, or Justice?
4
This is not about "the Law."
It is about paying for the work of annotating the statutes, and keeping the annotations current. Annotations are notes, that tell which legal decisions cite and interpret which sections, and briefly describe the ruling. It is genuine, ongoing work, and work product. It is intellectual property.
"It is intellectual property."
You are glossing over essentials facts of the case:
1. Georgia taxpayers paid for the annotations.
2. The State of Georgia owns the copyright.
So a government is trying to assert copyright ownership of intellectual property that is really owned by the public.
See the linked "Complaint for Injunctive Relief".
10
Maybe Lexis Nexis should put ads on the site to pay for their effort. They can have an ad-free version for those who are willing to pay. Many web services do this; it is a known business model.
I would forbid them from tracking users though. The ads would have to be non targeted, which would make them less valuable.
Otherwise the state should pay for the annotations and post them for free.
The word "terrorism" was used by Malamud himself to describe his own actions, see [1]. The State of Georgia is quoting him. The title and contents of this NYTimes article are misleading on this point.
[1] https://museum.media.org/eti/Prologue01.html
'The word "terrorism" was used by Malamud himself to describe his own actions, ...'
Thanks for posting the link. In context, Malamud is obviously joking.
The Times should have paid closer attention to Malamud's actual words instead of what the State of Georgia says in its court filing. If Georgia appears to be arguing in bad faith, that could hurt their case in court.
For the record, here is an extended quote:
'Tony [Rutkowski] was a senior lawyer for a powerful United Nations group that made lots of money selling these [ITU standards] documents. While Tony certainly sympathized with my goals, I wasn't quite sure how he was going to react to this form of standards terrorism. Putting a lawyer on notice that you plan to relabel his corporate assets with a $0 price tag is kind of like putting Honda stickers on the motorcycles parked out side a Harley bar.'
3
The Republicans on Roberts' court will rule in favor of the business and against the citizenry.
3
It isn't clear to me what the point of this case is. That is, why have the Federal Courts injected a legal treatise into the public domain? The laws themselves, as codified by a State, have always been injected into the public domain. But the legal treatises, in the form of annotations, are private opinions and copyrightable.
Here's an example from Matthew Bender & Co., Inc. v. West Publishing Co. [158 F.3d 693 (1998)]: “Works of the federal government are not subject to copyright protection, although they may be included in a compilation. 17 U.S.C.A. 105” (158 F.3d 693, [12])
This quote is an annotation written by Westlaw, and is made available here under the Fair Use doctrine in U.S. Copyright Act (17 U.S.C. 107).
The only explanation that I can see for this case is that legal treatises are all going to on-line paywall systems. Hard copies are becoming extinct, even at many law libraries. This gives these companies an enormous amount of power, as they can selectively choose what content to deliver to a particular law client. This means that they have influence over the outcome of court cases.
2
"It isn't clear to me what the point of this case is."
The point is that Georgia taxpayers paid for the annotations, and the State of Georgia owns the copyright.
There would be no case if the publisher of the annotations owned the copyright.
4
I read the lawyers brief. They quote Carl Malamud to the effect that he claimed his strategy of
Okay....how, exactly are LAWS copyrighted, or is posting EXISTING LAW a “strategy of terrorism.”???
Georgia, you're in a race to the bottom of the barrel....
5
'... how, exactly are LAWS copyrighted ...'
The *annotations* are copyrighted, not the "laws" (technically, "statutes"). From the article:
"The state, through a legal publisher, makes the statutes themselves available online, and it has said it does not object to Mr. Malamud doing the same thing."
@FCW
Nice try.....your argument is flat and unpersuasive. Georgia is trying to criminalize the reading of the law.
2
PP: "Georgia is trying to criminalize the reading of the law."
This is a civil case involving copyright infringement, so you don't know what you are talking about.
"...Georgia’s lawyers said, was part of a “strategy of terrorism.”
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The name(s) of these lawyers should be posted for everyone to see and know. These men are responsible for taking democracy away from the people...
Remember the old addage "ignorance of the law is no excuse"? Well these "lawyers" are bound and determined to make you ignorant of the law by hiding it.
This way, they can make it up as they go along. Gestapo tactics.
Way to go Georgia. Your fall into fascism is in full swing.
3
"The name(s) of these lawyers should be posted for everyone to see and know."
The Times links to the court filing, so that is where you should look.
"These men are responsible for taking democracy away from the people... "
Wrong. The State of Georgia is bringing the lawsuit. The "lawyers" are with a private Georgia law firm, and they are doing their job by representing the State of Georgia.
'Remember the old addage "ignorance of the law is no excuse"?'
Obviously you didn't read the linked court filing, so you really shouldn't be trying to sound superior.
2
S state of Georgia. Shame on you.
2
Franz Kafka must be having a good time laughing somewhere.
2
Leave it to the South to find yet another way to pervert and undermine democracy.
4
the governor should have to personally pay the legal fees for this idiotic lawsuit
2
Enough with the lawyer bashing. This stuff is not free for us either. We either have to buy the books (which no one does anymore) or subscribe to Lexis or Westlaw to get it. And as for the comments stating, essentially, "The law should be written so plainly as to always be unambiguous," that's not possible. Language, even the "plainest" language, is often ambiguous. What lawyers and judges do is fill in the ambiguities. We do serve a purpose, whether our DIY culture likes it or not.
All that said, yes, statutes and annotations should be available, free, to the public. The legal fiction "ignorance of the law is no defense" cannot stand otherwise.
22
@Rupert I don’t see any lawyer bashing in this article.
4
The public documents are the property of the public, in every sense. Restricting access to them may serve guild like preferences of many jurists but in fact they affect people’s access to the basics required for due process.
6
"We either have to buy the books (which no one does anymore) or subscribe to Lexis or Westlaw to get it."
Thanks for pointing that out. Law libraries may be another way to get access to Lexis or Westlaw.
The problem is that people, such as prisoners, who are trying to represent themselves are at a severe disadvantage, because they may not have easy access to a law library.
"All that said, yes, statutes and annotations should be available, free, to the public."
In this case, Georgia taxpayers paid for the annotations, and the State of Georgia owns the copyright, so, yes.
However, if someone wants to write their own annotations, they would certainly own the copyright.
That's no different than someone writing a book review and publishing it online. The book reviewer owns the copyright to their review, even if the book itself is in the public domain.
If you look at the copyright page of some books, you will see a separate copyright statement for the introduction, commentary, footnotes, etc. See the Norton annotated editions of classic books for examples.
Sometimes publishers get greedy and try to claim ownership of the copyright to the book itself, even though it is in the public domain.
See "Copyfraud and other abuses of intellectual property law" by Jason Mazzone.
2
I don’t know if Georgia might have had a case about the related materials. But by labeling it “terrorism” they have given up their right to defend that case.
1
A closer examination of the business practices of LexisNexis is in order
Georgia prosecutors should be hard pressed to claim that ignorance of the law is no excuse.
3
Uh, so how does copyright infringement become a “strategy of terrorism?” Is simply tossing around that phrase supposed to (somehow) strengthen one's case?
1
Times: 'Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a “strategy of terrorism.”'
That is a serious mistake by the Times, because it gives the false impression that Georgia is accusing Malamud of terrorism.
According to the linked court filing, the term "terrorism" is used by Malamud. And Georgia is simply QUOTING Malamud.
See, specifically:
'Defendant’s founder and president, 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. See Exhibit 2.'
(Complaint for Injunctive Relief, page 11)
I'm so proud to live in Georgia, where blatantly unconstitutional laws (i.e. heartbeat abortion) are being passed, and where publishing the annotated laws is considered an act of terrorism. What can our elected officials be thinking? Perhaps they are not.
1
Unbelievable. The Republican government of Georgia has claimed that Mr. Malamud's publication of official state law annotations is terrorism. But Mr. Trump and his administration are doing nothing to stop right wing terrorism here or around the globe.
Well, less than nothing: This week alone, Trump has refused to sign the Adern-Macron agreement, and complained that Facebook and Google are unfairly targeting right wing extremists. His justification for not signing the agreement? Free speech. Our own neo-Nazis and white supremacists are increasingly hiding under that same canard. According to the FBI, American neo-Nazis and white supremacists have perpetrated most of the terrorist acts within our borders since 9/11. Our own law enforcement agencies are still not permitted to designate these groups and individuals as terrorists. Congress, please fix that. Congress, please enact the equivalent of the Adern-Macron agreement.
The lawsuit by the state of Georgia truly is a case of them pushing all the justice money can buy, done at the expense of the general Welfare and of the blessings of liberty for ourselves and our Posterity.
Whatever happened to "With liberty and justice for all", Georgia?
Annotations usually are simply someone's opinion as to what a judicial opinion said. I've taught legal research and writing for nearly two decades, and I always impress on my students that they cannot cite the annotations, which are not law, only someone else's opinion about what the law is. Thus, a publisher's annotations would ordinarily be copyrightable, just like a law school case book or legal treatise.
The distinguishing point here is the quotation from the Eleventh Circuit's opinion: “Georgia’s courts have cited to the annotations as authoritative sources on statutory meaning and legislative intent.” Apparently, the Georgia annotations are not simply some publisher's musings about the law; they *are* law themselves and are cited as authority by the courts.
This fact is horrifying, much more so than the copyright issue. It means that a private corporation is being licensed by the State to create Georgia law. The potential for corruption is enormous: The writers could shade or interpret judicial opinions to their own financial, political or personal advantage, and have those interpretations blindly adopted by the courts and the legislature. At a minimum, the Georgia Supreme Court should declare that these annotations are not law and cannot be cited to support a party's arguments.
42
@Robert E. Malchman - agreed. In the same way that the Lexus or Westlaw-prepared headnotes includes in their published versions of opinions are NOT law, neither is the text of the annotations. Both are merely there to help lawyers find the actual law (cases, statutes, regulations and legislative history), which is often cited in the headnotes or annotation.
Sometimes the annotations have verbatim copies of the statements made by the legislators when adopting the particular statute. Of course, legislative history is very persuasive authority when interpreting a statute (although not mandatory authority).
Maybe whoever spoke with the Georgia official didn’t appreciate that nuance.
@Robert E. Malchman -- "This fact is horrifying, much more so than the copyright issue."
I agree. It is so horrifying that I doubt the literal truth of it. One might discuss an annotation, in the context of how one found it or understood it, but that is not the same as relying on it as the authority.
1
@Robert E. Malchman Cases interpret law. To do this, they often cite to all sorts of evidence to draw their conclusions about how the legislature might have wanted the law to be interpreted. Legislative history, legislative purpose, commentaries, restatements, scholarly articles: none of this is binding. I'm not sure how Georgia is different here.
1
I've gone looking for the Official Code of Kansas at times when I've had questions, and found that while deletions, insertions and maybe additions are findable, the actual current state code I expected to be online after 20 years of internet era was apparently not available. Maybe Google didn't help me enough, but that body of law is public property, created with taxpayer money and of direct relevance to any interested taxpayer, and ought to be freely available either online or in hardcopy at local libraries. It belongs to all of us, and the idea of putting a copyright on it is nonsense. It's not like the legislators are writing fine literature that they are trying to sell to us. It's just the legal rules imposed by the state, public information we should all have free access to.
How can we ask China to enforce our copyright laws when we obviously use them with corrupt intent, even and especially by the states?
It’ll be interesting to see how the literalists on the court view annotations. Not all annotations are based on binding precedent - those that don’t, don’t really constitute “the law” so maybe sifting through the annotations and separating them into “binding interpretations” and “merely interesting, learned observations” may become a new make-work project.
This law is in violation of the 14th amendment.
Because judges' legal opinions cannot be copyrighted, it stands to reason that the publishers' rights to annotations based on those decisions cannot be exclusive. If the authors of the annotations are public employees or serving in government when they are written, then Georgia should lose, and pay the court costs. Moreover, if the information is being reproduced online, is the man being sued somehow making a profit from it? Is there ad revenue? One is allowed to reproduce copyrighted material in an academic setting without requesting permission. If he is simply providing a public service, without drawing ad revenue, then this is a pretty frivolous lawsuit.
Lawyers....
1
This article does a bad job explaining the issue. What is being copyrighted is not laws, or cases that interpret the laws, which are free and available as public information, and can be republished. What is copyrighted are the commentaries that summarize cases which explain the laws, summaries that an employee was paid to write. Taxpayers apparently DID NOT pay for those commentaries. Instead, LexisNexis, which does this work as a business, paid for them. Annotation has always been a private enterprise that governments cannot afford to pay for, and most state law libraries still pay for the Westlaw company's series of books that annotate the laws with case summaries. If readers and commenters here believe commentaries on laws are public property, then nobody would ever be able to make money publishing a book on their own annotations to the laws. The ridiculous terrorism comment aside, Georgia is protecting a business model that helps everyone in Georgia, and the rest of the US, understand the complicated web of statutes and cases. Given the long history of these arrangements, it seems unlikely that the annotations will ever be found to be public property, but what do I know? To give a legal opinion, I would have to spend days, perhaps weeks, reading and summarizing the cases interpreting the laws for myself. Or I could go to the state's law library and read the annotations, probably for free, in LexisNexis.
Just a part of the continuing trend of privatizing public property for gain. It certainly seems like the whole planet has decided to reconsider the whole basis for government these days, from rule-of-the-jungle grabbing of formerly public assets and destruction of commonly held public assets for profit to outright denial of the need for functioning government. Unfortunate that we will likely get to suffer a concentrated lesson of learning all the lessons of the past in an accelerated form — at a time when we have the technology to provide all the lessons of the past conveniently at your fingertips.
The Counsel for the Plaintiff State of Georgia should get a demand from the judge for a written definition for the word "terrorism." If that definition does not match how the word was used in their Complaint for Injunctive Relief, the judge should determine an appropriate censure.
According to the Copyright Act, facts cannot be copyrighted. To the extent that these are compilations of the uncopyrightable original work of judges interpreting a particular, also uncopyrightable, segment of the code, there is no original content in them to be copyrighted, regardless of who’s paying for it, because there is nothing original about joining these statements to the code they interpret.
One would expect that states would have an interest in people understanding and being able to apply the law. But what Georgia and those other states seem to want to do is to restrict access to information by putting it behind a paywall. In other words, if you've got the money, you can have access. If you're poor, well, tough luck.
24
It makes sense to copyright the annotations as the legal work for hire can serve as an authoritative source of the meaning of the law. Removing the copyright to allow rival editions might create conflicts of interpretation, as would keeping the copyright and forcing Malamud to pay for his own annotations distinct under copyright expression.
But copyright does not prohibit free online publication in all cases. The contract between the state and Lexis or another outfit might assert copyright and allow for such publication under a Creative Commons license giving computer-readable reuse permission. A similar situation is in medical and scholarly research, where the government pays up front for research, allows authors to copyright, and now sometimes requires in contracts rights of authors to license free Creative Commons online publication even if big publishers want to put it behind a paywall. It boils down to money not law.
The Framers of copyright law followed the Statute of Anne, which removed perpetual monopoly of big publishers (granted a royal patent in return for censorship) but copyright has long perverted the intent to increase access. It's asking too much from the Supreme Court to improve it, especially with Justice Ginsberg there. The Court should tell the lower court to void the contract and make the parties come up with a constitutional one.
1
If the annotations had been commissioned by a private party, I would understand an argument in favor of copyright protection. However, since it was the state that commissioned the annotations, there is an implicit authority to them (and the clarity they impart) that means they should be accessible to all citizens free of charge as part of the state’s duty to allow citizens unhindered access to the legal record. The fact that taxpayer dollars paid for the annotations is another compelling argument as to why these annotations should be public property and undeserving of copyright protection.
11
So, posting the tax-payer paid-for commentary for laws passed by legislators (also paid for by our taxes) is terrorism? Apparently, in the State of Georgia, it is. I believe that the lackeys of the British King used the same language to describe those people in their North American colonies who also thought that they should be able to partake in the benefits that their taxes produced.
23
@Pete in Downtown
Maybe the terror is what the legislators feel knowing the public understands what the laws they passed mean.
All the corporations which are based on government contracts and have turned that RnD for the government into for profit making corporations and their associated entanglements - pay up! Oracle, Google, LexusNexus and a myriad others have locked us out, sold us on, and charged us for technologies based on our payments to them. These items should be free to us, University research and their knock-on tech, based on any kind of public funding, should be free to us The time of the free ride is over! (don't you wish?)
5
@JGS the same goes for most pharma!! Much research is govt grant funded. Much of the underlying technology for modern weapons is DoD grant funded. But without unfettered access to laws we are a tyranny -
Silliness. One cannot copyright what is in the public domain.
5
@LawyerTom
They are not copywriting the law; they are charging you for accessing it without paying for the paper (or electronic equivalent).
Like winning a free trip to Aspen in winter. You just pay a "processing fee" to the travel agency.
Terrorism? That’s how dictatorships refer to people who exercise the rights of free people with democratic government.
Basically, these state governments are privatizing information that belongs to the citizens, all of the citizens. These governments govern by the consent of the governed, who are responsible for all of their acts. Depriving people of access to the law deprived them of due process. These contracts are bizarrely against liberal democratic governance.
16
Privatizing merely makes what should be a public resource into a commodity that the the public who has already paid for it with their taxes, pay for it over and over again.
13
Citizens did not just pay taxes, they are who are responsible for everything that government does. The people who write and enacted the laws as well as those who are charging citizens for access to the texts of the laws are given the authority to do so by all of the people.
What this is are some government officials who got confused about whether serving the people’s interest was providing free access to the laws that they must have in order to have due process of law or to pay less for publishing costs by requiring users to pay for it. Twisted priorities, at the least.
2
@Casual Observer
Speaking as someone who has actually had to pay for Lexis/Nexis and Westlaw over many years for a public institution, I can tell you that all that was going on here was Georgia Leg. trying to MAKE money (royalties) off of what should be free. And still state legislators don't want to spend money to support public universities (Starving the Beast).
Well unless the public officials are pocketing the revenues, they are just avoiding the use of taxes to support a necessary basic operation of government. More Republican confusion about governing with democratic institutions being the same as a government by a foreign invader. Addled thinking driven by a desire to have something given to them at others’ expense.
So now lawmaking is a money making enterprise for the states and corporations with citizens paying the bill:
"Georgia holds the copyright to the annotations, but the company has the right to sell them while paying the state a royalty.
The state says this is a sensible cost-saving measure, “minimizing burdens on taxpayers” by sparing them from paying for the preparation of annotations."
Another aspect of our relation to the state has been corporatized, injecting a profit motive into the workings of our government.
What are the potential implications for our legislative process of this new incentive? I can think of a few that, seemingly, both right and left would agree are problematic. First, there are incentives for the publisher to lobby for more laws of any kind. Second, there are incentives for writing laws with obscure language for which the annotations are essential. Third, the publisher has a unique kind of leverage when opposing laws that directly affect it.
Georgia has literally sold a key piece of the judicial system and by doing so made it more difficult for its citizens to understand and engage with its laws. Qui bono?
8
@I dont know. Sorry, but this is Georgia after all.
Wow, what an eye opening piece. Does anyone else see a problem with laws that are not intelligible without reading the annotation? It seems unreasonable to expect citizens to follow laws that they cannot understand and may not even have access too. We have created a system that works only for the lawyers.
74
I like what you say Sue Nim
3
@Sue Nim
Yes and no.
Laws written many years ago (i.e.: 'an armed militia") require interpretation to accommodate modern circumstances.
That's what lawyers and judges do. Good ones, in any event.
3
Laws must be unambiguous and explicitly expressed, while everyday language is frequently ambiguous outside of the context of usage. In addition, everyday language relies upon non-verbal cues to convey meanings which could not be reproduced in the legal texts.
4
The Laws belong to the people and are not for the privlidged few. All people are equal and therefore it is a level playing field. You cannot be in trouble for sharing something that belongs to all.
6
And what party controls Georgia and is once selling citizens rights and civil liberties down the river?
Republicans of course.
This is nothing more than yet another attempt by Republicans to restrict information and undermine democracy.
Your example of the law "making sodomy a crime" - oh but we hid that small detail that the law is - unconstitutional - sums it up.
GOP state politicians wouldn't want that to get out! Oh no.
Next they'll try for a second amendment with only "right to bear arms" publicly stated and hide the "well regulated militia" bit.
As the state falls apart, the GOP spends it time on this?
12
@Steven
Unfortunately, I believe there are plenty of blue states that do the same thing. Whether or not they would sue somebody? I don't know.
1
Only the rich can "know" the law. And often write it too.
The poor are condemned to ignorance and held in "terror" of breaking the law they know not of.
Welcome to rich man's America.
73
@Rudran In my view, this is not a matter of rich vs. poor. It is the potential for those in power to keep the populous ignorant. Another step toward fascism and dictatorship.
3
I’m a legally trained person. In fact, I’m a judge. Annotations are the fastest way to get to an understanding of what statutes do and don’t do.
And please note how this article is more comprehensively understood by reading the posted comments — which are annotations, right?
15
""But people who want to see other materials in the books, the state says, must pay the publisher.""
Haven't the people of the state of Georgia, and potrentially other states, already paid the publisher in the form of taxes? This should be a no-brainer.
12
Ordinary citizens are paying taxes to fund their governments. Who are these publishers and what kind of taxes are they paying? Are they the beneficiaries of the "privatize the profits, socialize the costs" corporate welfare state that been created? How much did these publishers spend on lobbying the states for the business? Were they allowed to deduct those lobbying costs from their taxes?
6
Privatization of governmental functions and services is what you get when lazy legislative and executive officials shirk their sacred duty and responsibility to study, understand and manage the responsibilities of the state. Decades of declaring that such work is too complicated and of throwing massive amounts of taxpayer money to contractors who then contribute heavily to their election campaigns has produced a system that is both dysfunctional and corrupt. Such legislative, executive and private contractor cabals are now intractable fixtures of government at every level from local to federal. This is more than corruption, it is irreversible decadence taking place before our very eyes. We are living the end of the idea that a democracy as envisioned by the founders of America can sustain itself. This, plus our inevitable failure to deal with climate change, means that the illusion that the American model would lead the cultures of this planet, both old and new, to some version of civilized perfection is dead. We, all of us, have dropped the ball.
10
Yours and my federal and state taxes fund our federal and state governments. Works developed by these institutions belong to us. Especially the laws promulgated by them to which we are bound.
To award a private publisher “rights” to public property wherein that publisher can charge for access removes public access to property we have already paid for. Why should publishers be allowed to make money on something that does not belong to them?
No non governmental organization should be allowed to profit from limiting access to, of all things, the very laws that we are held accountable to!
6
"The annotations were prepared by lawyers working for LexisNexis as part of a financial arrangement with the state. Georgia holds the copyright to the annotations, but the company has the right to sell them while paying the state a royalty."
Annotations are not the law. They are the product of legal research. A lawyer who simply relies on L-N's annotations is a pretty poor one.
Lexis-Nexis can sell its legal research product to GA, and it can strike a deal with GA to allow GA to publish the legal research product without charge to the accessing public, even as L-N charges its own customers. But GA & Lexis-Nexis get nothing from Mr. Malamud, and when Mr. Malamud publishes Lexis-Nexis' legal research product without permission, he is violating GA's copyright.
2
@Sam I Am Unfortunately, the story is not completely clear about the facts here. In Georgia, there are employees of the state that prepare the annotations. And, by Georgia law, the annotations have an official status, so they are binding interpretations.
That's why it is the State of Georgia, and not Lexis-Nexis that claims the copyright. Lexis-Nexis pays for a licence, under the copyright, and everyone else has to pay Lexis-Nexis.
5
When I was in library school back in the '80s, we were taught that any information published by a government entity was free of copyright. At that time, we could not have foreseen complications of this kind. The public library where I worked kept the volumes of the state statutes on the shelves, and they were much used by our customers. I don't know whether or not they were annotated, and I wonder if public libraries are still stocking the hard copy. This seems to me like a very slippery slope. I would also like to suggest that people stop using the term "terrorism" to describe anything they happen to dislike.
6
@Charley horse
A very thoughtful and nuanced comment. And I particularly appreciate your last sentence.
If I am understanding correctly, the State of GA. pays a private company to make annotations to various laws and maintains ownership of the copyrights. "The annotations were prepared by lawyers working for LexisNexis as part of a financial arrangement with the state. Georgia holds the copyright to the annotations, but the company has the right to sell them while paying the state a royalty.", so it seems Ga. taxpayers have already paid for their creation and should not be charged an additional fee for access to these annotations.
9
@Pamela Bellamy, L. Ac.
No, the state prepares and owns the annotations . Lexis Nexis licenses them.
1
One argument in favor of the private legal publishing groups: If comments were published by state governments, quality would vary greatly; some states might not publish any at all. Also, there might be pressure from interest groups to "spin" comments in certain ways with regard to certain issues. And the government's "objective" commenters might be political appointees. The private groups provide some insulation from this.
1
@Joe
Or, the private publishers could be purchased by someone with an agenda and fail to publish annotations that don’t fit that agenda.
7
@Joe
I believe that consistency is achieved when governments set the standards and then enforce the same standards on themselves as well as others.
We do not need private companies interpreting laws based on ‘what the believe’ - that is how politics gets embedded in laws.
4
@Joe
Any evidence of this or you simply relying on the (often false) assumption that corporate is better than public. Corporations ARE interest groups. They have political interests and economic interests, providing less not more "insulation".
7
As the story notes--albeit briefly and without explanation--annotations are not law. There is a good reason for this: they are often wrong or too generalized. A good lawyer reads annotations, but relies on them only as a short-cut--a starting point in finding cases interpreting a statute. I cannot list all of the times I have won arguments and even lawsuits because of lazy lawyers who rely on annotations and case headnotes--both of course written by other lawyers. Frankly, I have never relied on a headnote or annotation to inform any state or federal court of the law, and any lawyer who does is not doing her job.
3
Lexis-Nexis is not going to annotate or publish the annotated statutes for free. The alternative is for the state to hire its own annotaters, create its own electronic database, and run its own printing presses---a rather cumbersome and expensive proposition for the state. Or, the state could simply publish the unannotated statutes itself and let people buy an annotated , but unofficial, version from Lexis or West (the only other major publisher of official statutes.) Georgia would have no control over (nor vouch for) the accuracy of the text of the statutes or other notes published by the private publisher. Under that arrangement, people would have to consult the official (but unannotated) version printed by Georgia and buy the annotated (but unofficial) version published by Lexis or West. In addition, I suspect that Georgia is getting some free copies for the use of its attorneys, departments, courts, and libraries, for which it would have to pay if Lexis were no longer the official publisher. I've no love for either Lexis or West, but this decision will have real ---an perhaps unintended--- consequences.
2
@Pam - If a law is declared unconstitutional, and the state accepts the ruling, but refuses to take it off the books, it will continue to be enforced by police agencies who carry nothing but a dumbed-down version of the code.
Had that happen to me on a free-speech issue - and because of its microscopic importance, it ended up costing me $400 for a quick-service lawyer, two hours handcuffed to a bar on a desk, and all sorts of playing nicenice to get the matter adjourned assuming I was "good" for a year.
If everyone had access to the laws as they can be enforced, they could nip this kind of thing in the bud, simply calling up a major court decision on a cellphone and handing it to the cop claiming otherwise.
2
The right of people to see and understand the rules that they must live by should be absolute.
To the extent that the annotations affect what people are supposed to do and not do, they must be in the public domain.
Then again, if I as a private citizen write a commentary on the law, it is my IP, to sell or share as I please.
It seems to me like there are two ways out: for the state to hire people to make the annotations, or for Lexis Nexis to include advertising on its site to pay for it. Many so-called free online services post ads, but also have an ad-free option that you can pay for.
2
@mlbex If your commentary contains your own thoughts on the law or the case law, sure you can copyright it. If it is simply a recitation or annotation of what judges have said then you shouldn’t be able to because facts are not copyrightable in any context. Saying Judge A ruled that this section of the code means X is a fact. Just like if I spoil last night’s episode of Game of Thrones for anyone by telling them the salient points of what happened I’m not violating HBO’s copyright.
Compilations of facts are copyrightable to the extent they are original (and only as a compilation not the underlying facts). But, there is nothing original about saying what the current law is. It doesn’t spring from an author’s mind. If it did, then people couldn’t be held to the fiction that ignorance of the law isn’t a defense for breaking it because it would be unknowable.
The other issue is public documents and works made for hire. If the state is paying for it then, as a work made for hire, the copyright belongs to the state. State documents are public documents, and unless there is some valid claim of privilege then they should be available to the public upon request, with only a very minimal fee for the cost of copies or maintaining the website being appropriate (that’s different than the price a copyright owner can charge).
Access to Lexus Nexus is expensive for an attorney and prohibitively so for a private party. It is all part of the monopilization of law by the legal profession. It's time to end.
11
There is a similar problem with building codes. Engineering companies have to pay to have access to the buildings codes. There is an organization that makes them available online for free but they are being sued for this as well.
8
If the State relies upon commentaries for interpretations of its own laws because the State refuses to update it's code, then those commentaries, regardless of origin, are apart of he public record.
Any view to the contrary imagines a privatized state akin to feudalism.
6
We have to keep an eye on how our government functions. It's up to all of us to hold their feet to the fire. The FAA, the FDA and even state governments overseeing statutes aren't necessarily going to work for the common good.
The cause of the trouble can be cozy relationships with entities the agency is supposed to be overseeing or suppliers they are working with or simply trying to make the government some bucks when it isn't appropriate to do, as in this case.
Hyper-partisanship and the resulting partisan grid lock do not make for good government. There's a price to be paid for politicians being mostly involved in warfare among themselves. That price is they aren't going to be doing a great job overseeing the workings of our government.
The state's position seems weak to me, but this article doesn't do a good enough job of explaining both sides. Also, by referring to the annotations as simply "legal materials" or "set statute and related materials" it gives the impression that what is being claimed as copyrighted are the laws themselves. Only about halfway in does one realize that the dispute is over COMMENTARIES on the laws (albeit a very important one) created by a PRIVATE company. If Lexis Nexis cannot keep it copyrighted and charged for it, will the company still keep creating it at all?
8
@j.w. Correct. Anyone should have the right to the statues and the court and administrative decisions interpreting them.
The work of tying the decision to the statute, annotating it, and making it possible for a reader to quickly see which decisions interpret which clauses of a statute is intellectual property and should be subject to copyright.
3
If it charges then I hope not. Our clerk of court has begun charging a fee just to review any record. The office is there to maintain the records. If the fee is so high that it prevents us from reviewing records then it has gone too far. It is my taxes that contribute to funding the office and I should have access for only a nominal fee or none at all.
5
The private company may have authored the annotations, but the state of Georgia holds the copyright - as a summary of statutes and legal opinions, which have both been independently confirmed as not being allowed to be withheld or sold for a fee, on what grounds should it NOT be publicly available if it is work paid for by and owned by the government? The government cannot spend taxpayer money to commission these annotations, continue hold the rights, and then deny its citizens access to the materials, that’s not right at all.
4
The annotations would not exist if there had not been financial incentive. Paid attorneys of the publisher put in a lot of work to create the annotations so they could then sell them back to working attorneys. The publishing of the law for all to see is not the issue, but the annotations are.
2
@David Scarborough
There's another issue. The state of Georgia gave official status to this work by paid attorneys.
This is a debate over privatization. Who has the responsibility to annotate the statutes -- the government, or a private publisher contracted by the government, with official status, who can pay the costs, and profit, by selling those official annotations to a captive market?
My feeling is that these annotations are part of the laws that we are expected to obey, and if Georgia wants us to follow the law, Georgia should pay for their compilation out of taxes.
There is also the question of whether the annotations should be made by government employees, or by private contractors. This is an ideological question.
The Department of Commerce used to publish the Statistical Abstract of the United States, one of the U.S. Government Printing Office's best-selling books, which cost $20 (free online), and was found in every public library in the U.S. Newt Gingrich said that private publishers were already publishing almanacs, and they could publish the SAUS more efficiently, so at Gingrich's leadership the USGPO discontinued it and left it to the private market. The publication was continued by the private publisher Proquest, at a price of $200.
3
You cannot begin to imagine the kickbacks that filter down from the private publishers (viz. Thomson Reuters) to the state "legislators."
9
Georgia lawyers did not say that “Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a ‘strategy of terrorism,’ as the Post asserts. They told the court that ““Defendant’s founder and president, 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.”
The Post should publish a correction, but it wont because the distortion is not an error; it is a deliberate lie.
The publisher—not the state—paid lawyers to provide the annotations. If Carl Malamud wants to publish an annotation of Georgia laws, he should do his own annotation or pay someone to do it form him.
However, Georgia should consider buying the copyright from the publisher and posting a public-assess version online.
2
I like Carl Malamud and the work he is doing. I hope he wins for us, the little people. Take back our Country, MAGA.
1
@William Case
I mistakenly referenced the Post when I should gave reference the Times.
@Bill Salmon
Carl Malamud did not do any work. He stole the annotative version of Georgia legal code from its punisher. The publisher created the annotations by hiring lawyers to produce the annotation to write the annotation.
Malamud would deserve praise if he had done the annotations himself or pay lawyers to do them.
If the annotations are private, it must be reversible error for a court to cite them.
3
@Garak Nobody ever cites annotations. Annotations summarize cases. Lawyers read the cases they need to read and cite to the cases.
Georgia has a point. Who is going to pay for it? Medical journals are the exact same way; open access has for years been restricted because someone has to pay the publisher, and there are entire industries surrounding the use of the information published to bring new goods and services to people. I imagine it’s the same with law?
Although, calling it “terrorism” is a stretch.
A ‘stretch’? To put it mildly.
@Brad
The article states that Georgia already paid for it. Do you believe that the government should act as a baseline for the stability and protection of its citizens and a common good?
Even if the annotations of laws were publicly available, who has the time and ability to understand the minutia other than a trained attorney who's being well compensated for their time?
I've heard laws in the UK are written in plain language, so everyone can understand them. And that politicians in the EU would be embarrassed to admit they support a policy because; "God told me to".
If we can imagine a 'single payer' for healthcare, eliminating the need for complex bureaucracy and fees for insurance agents, why can't we envision a 'single slayer' legal system, where the government enforces the laws, and corporations and individuals are obligated to be lawful? (I know, GOT got to me).
1
The seeds of social dysfunction are sown in the garden of conflicted perceptions of what is right, wrong, fair and legal.
When resolution of those conflicts is controlled with manipulations by and for the interests of wealth and power, public confidence in its cultural integrity succumbs to cynicism and outbreaks of anger.
And that is the chemistry by which our garden grows.
34
Two undercurrents seem in play here.
First, as the article notes, is the privatization of more functions and records of government at all levels. Taxpayers still subsidize the privatization, as in Georgia's case, but they do so at the additional cost of reduced access and reduced accountability.
The second is the diminishing concept of an informed citizenry. Too many of us shirk our responsibilities to know how the law is made, amended and practiced. A republic, as our country is supposed to operate, means the people govern. Here's another example of the people being discouraged — rather than motivated — to act as citizens should act.
12
This is like Trump's infrastructure plan, where private companies finance bridges and tunnels, and then get to charge tolls for crossing on their property.
It's basically a dispute over a business model of whether a service is bought and owned by the state (on behalf of the public), or merely a subscription rental service.
The business practice should be disallowed.
16
Lexis-Nexis has been running this business for decades, selling access to the law and legal opinion via its expensive databases, purchased by law firms and libraries. This is really one aspect of the so-called 'open access' movement, which has tried, for decades, to make scholarly articles available, free to all. Universities, corporations and the government hire researchers, funded by tuition, corporations and taxpayers, to do research, write up the findings in scholarly articles, then find publishers of peer-reviewed journals to publish the findings in the journals. Then, the publishers sell the journal articles back to the same institutions that paid for the basic research in the first place, and they don't sell this cheap, either. This is how the academic and scientific publishing market works.
The open-access movement has tried, by various means, to get around this expensive process, by making research available to all, directly. It sounds like the annotated laws are actually created by authors paid by Lexis-Nexis. But, because the annotations are, in effect, part and parcel of the law, and integral to understanding the law, there is an argument for providing open access. Otherwise, ordinary citizens would be (and are) burdened by extra costs, just to find out what the law actually means. Of course, that's what you pay a lawyer for, right? The copyright claim makes this particularly interesting. The outcome will be real news when this is decided.
13
@PJTramdack
There is an argument for public access, but not to the LexisNexis annotation. The publisher, not the state, paid lawyers to do the annotation. The annotations belong to the publisher. Georgia should consider purchasing the copyright from the publisher.
1
@William Case
The article states that the State paidmfornthe annotations.
1
From ignorance of the law is no excuse to ignorance is the law is no excuse.
5
I'm still not clear how this constitutes terrorism.
47
@Disembodied Internet Voice it just easy now days to blight a person with this accusation/ term. I would sue for defamation.
3
@Disembodied Internet Voice
It’s a trial balloon for criminalizing and demonizing opposition. Expect it to go mainstream among Republicans.
8
If a publisher has struck a deal with a state to publish legal annotations and interpretations under copyright, then the law must be respected. Charging for access to published materials is how a commercial publisher does business. They're hardly to blame for doing the business they have always done in the light of day.
Georgia has complicated matters with its ridiculous assertion of terrorism, but the state is correct to insist the publisher's copyright be respected. I would expect the Supreme Court to find for the publisher.
The question of whether interpretive material related to laws and statutes should ever be protected by commercial copyright is an interesting one. But if we want total public access to these materials, then the state must pay to publish them, which means all taxpayers will foot that bill. There is, in fact, no "free" access.
3
@John the legislature striking a deal with a private publisher is by no means the same as the legislature passing a law — your statement that in such a case, “the law must be respected” is not applicable. If anything, where the state strikes a deal with a private publisher that stands contrary to the laws of that state and the federal government, that deal is nullified and the rights allegedly held by the private publisher reverts to the state.
22
@Benjamin Davidson
I was referring to copyright law, which is a federal law and not something created by the Georgia legislature. If Georgia was incorrect in allowing commercial publication, the Supreme Court will say so. But that is doubtful, since the same type of publishing deals, for similar interpretive materials, have been struck by governments everywhere.
Should all materials related to the law be open and free? It's an interesting question. They haven't been so far. If it's decided retroactively that they should be, I would expect the publisher to sue for compensation. They have made a significant investment in good faith, and have a right to a return.
2
@John Sweetheart, we already paid for them. Where do you think the state gets the money to pay? From taxpayers. So, according to your Toronto logic, laws are being respected. The residents of Georgia ARE the state of Georgia (please reference criminal filings of “the State vs”) and are breaking no laws by accessing what they already pays own.
7
Were Felix Frankfurter in charge this would be an open-and-shut case.
3
I've always heard that "ignorance of the law is no excuse." Now it seems that governments, including that of Georgia, maintain that *knowledge* of the law can be a crime! We are talking about the "Georgia" in North America, right, not the one in Eurasia?
23
@Thomas Good question. The Republic of Georgia has easily searched online access to government policies and legal statutes.
4
The part about terrorism needs some explication., Mr. Liptak.
Considering Georgiaa's history with the poll tax and disparate funding of public education, the state's bona fides are suspect.
14
". . . the question of who owns the law is an urgent one . . ."
who owns the wind or
the rain or dandelions
should be more urgent
1
The National Electric Code and Natural Gas Plumbing Code are copyrighted as well. You can bing or google revelant portions on line but the complete code is for sale.
1
These and similar codes are prepared and published by non-profit professional associations, not by any government entity.
2
Only recently has legal research stopped requiring physical books. Not so long aqo, judges, lawyers and lay people all needed access to a law library, whether private or public, taking books off the shelves. The books were/are expensive to produce and distribute. (BTW, same goes for scientific research journals.) SOME entity had to pay the cost -- and still has to pay for electronic publishing, although the cost is much lower. The electronic costs should be paid entirely by government, and ALL opinions should be published electronically!
9
The people who this affects the most have the least representation in the system. The poor, the incarcerated and the innocent. This is a piecemeal erosion of governments responsibility to the public. When combined with prosecutorial malfeasance, voter suppression under the guise of voting integrity and predatory lending permitted and condoned by state legislators it is hard not to think this is part of a conspiracy.
19
Government by, for and of the people means that WE all own these laws and access to them is no different that going and watching the legislature when it is in session. Free, open, and fair... or at least that was the goal until Republicans took over.
14
Consider this a preview of what will occur over the next decade as the 'management' of free speech by the various authorities and interest groups becomes the norm.
Pretty soon every facebook account that someone does not agree with will become racist, homophobic, terrorist, or nationalist.
Unleash the dogs of censorship and watch free speech wither and die.
Legal free speech [via FB, Twitter or any other platform] is binary - it is not shades of grey - you may not love what is being said but you should protect its right to exist to the death.
4
It’s an ongoing misconception that the use of social media is a form of “free speech” & that there’s a right to say anything you want on these platforms. You don’t, the owners of social media have the right to monitor and censor as they will. They’re not the government and the 1st Amendment does not apply. I’ve included the text below so there’s no confusion. Also the 1st amendment is not a license for any speech & never has been. There are recognizable limits to what is protected and what is not. Regardless you don’t have the “right” to post any obnoxious, racist bigoted nonsense you want on social media nor should you be able to. The alt right in this country & elsewhere is just a hairs breadth away from violent extremism as a movement, as Individuals they are already there. As such the rules that apply to other extremists on social media should apply to you.
1st amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.
3
@SteveRR
Free speech refers to freedom from government restrictions on speech and the press. A “platform” like Facebook or Twitter is not the government and can “publish” (or not publish) what it pleases because that’s actually what the First Amendment requires.
That Facebook dominates its market and can be unfair in ways that may violate the public interest or wise public policy; that is an antitrust problem, not a First Amendment one.
4
@SteveRR
Free speech refers to freedom from government restrictions on speech and the press. A “platform” like Facebook or Twitter is not the government and can “publish” (or not publish) what it pleases because that’s actually what the First Amendment requires.
That Facebook dominates its market and can be unfair in ways that may violate the public interest or wise public policy is an antitrust problem, not a First Amendment one.
Combined with its outrageous proposed reproductive healthcare laws, it sounds like the Peach State's government has gone bad. As with peaches, best to get rid of the rotten ones, lest the whole bushel turns to mush.
14
Makes it hard to be a law abiding citizen when you’re not allowed to know the law.
17
Rapacious vulture capitalism strikes again.
13
@Thomas T
Pretty sure ... my given-name brother ... that a continuously striking force cannot properly be characterized as striking "again."
P.S. Go Warriors! … Oakland's own -- for a little while yet. (I'll root again for the Knicks when the cows come home -- but, since the cows haven't been here since 'we' were New Amsterdam … or so it seems … I ain't holding my breath.)
1
Justice documents like court decision, annotations and any other legal publications about the law by the government should be accessible to all, without having to pay. After all this is the taxpayers who finance those publications with their taxes in the first place.
8
Georgia is so unbelievably corrupt. Suppressing votes and now not allowing the publishing of its laws. It’s time to stand up to these charlatans. Our democracy is at stake.
30
@James
I doubt that only Georgia is guilty of privatizing its government at the expense of democracy; the article alludes to "about 20" other states where similar strategies are being used to outsource the publishing of laws.
We need to return to the principles of citizen democracy and we really need to admit that it costs money to maintain a democratic government for, by, and of the people. But in the long run, absolutely worth the few pennies of every dollar we have to pay in taxes.
Instead of privatizing the sacred public trust, we all need to participate more in electing competent and honest men and women rather than lazy opportunists who are there for the 'revolving door' between public & private interests.
Of course, personally, I would argue for random selection/election, rather like juries are chosen now -- we could do no worse than most of the people being elected now!
4
We are slowly but surely losing our democracy. Every day there is so me new law that strips us of our freedom. The president is already talking about he should get 2 extra years in office, then he said 6. He pretended like he was joking but he is not. We the people own these laws, and it should not cost us a penny to publish them online.
20
The headline says Georgia has accused Mr. Malamud of terrorism, but the article doesn't explain why. What is the State's reasoning as to how publishing annotations to statutes is terroristic or supports terrorism? While the State may have a non-laughable argument about a copyright or contract violation, how do they get to terrorism?
29
"The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow." James Madison
These words should make this case a SLAM DUNK for widest most easialy accessable promulgation of ALL laws and the ways (annotations) judges have applied and interpreted those laws.
24
Georgia wants laws and related elaboration & annotated codes kept secret unless you pay or get permission to access them. Unbelievable.
Yet ignorance of the law is no excuse.
And a person or organization who puts statutory laws people are supposed to obey online so anyone can read them is a "terrorist".
This is clearly not democracy, it's fascism.
23
Exactly.
And the kind of double speak mirrored maze of crazymaking reminiscent of governments behind the Iron Curtain.
The people of Georgia already paid for the annotations and such -- by having their tax dollars fund the salaries or contract payments of whoever wrote them.
4
A government which accuses someone engaged in a copyright dispute of "terrorism" sounds pretty terroristic in itself.
20
Although the issues are not identical, this has some important analogies to the question of open access in scientific publishing, of research paid for by the public. Right now if you want to look up a paper on a disease you have, research paid for with your money, it's paywalled, typically at a price of about $35 per article. Ditto for all other sciences. The Republican nominee for NOAA Administrator, who owns AccuWeather, also also once tried to make you have to pay for your daily weather forecast. I agree with an earlier commenter - everything can't be outsourced. Private interests are not public interests. I might add that in Georgia's case you also have to wonder if making access to the law difficult is not somehow also a way of frustrating attempts to enforce people's civil rights.
19
Government needs to stop outsourcing everything. Even if the government would do a less well job, some things cannot be given to the private sector only to have them monetize it.
13
@RickF
under the current atmosphere of "government is the problem" (ronald reagan, 1980), a mantra that has been fiercely voiced by nearly every GOP-er for the past near 40 years, without outsourcing then many levers of government would not exist.
then again, are you suggesting that governments should once again invest in their own bureaucracies to retake control of providing services to the public?
Fine, let these companies charge attorneys for the privilege of accessing the annotations, as they are making commercial use of the material but, allow free access to any non-attorney or, for that matter, any public defender attorney.
2
@kozarrj
The cost would be passed on to you, the attorney's client.
Additionally it would discourage attorney depth of research.
4
As background, we should remember that Republican instincts to defund the government make this issue possible in the first place.
A respectable government would of course make the full law easily, freely and fully available to its citizens.
Only a government under constant attack by right-wing radicals trying to drown it in a tax-starved bathtub would be subcontracting its laws out to private corporations for profit.
Decent Americans don't vote Republican.
104
@Socrates
We must never forget the the German National Socialists and Stalin's Marxism the past, and China today stand as the best example of how leftist athoritarian government can oppress its people by denying the people access to the true text of the Law.
Outsourcing should result in greater transparency since the information is removed from the sole control of the polititians.
It will not matter it the polititians are leftist socialists like the now mainstream democrates, or right wing authoritarians like the christacrats on the right fringe of the Republican party. If they are prevented from hiding the law or the interpretations of the law made by independent judges and legal scholars, they cannot oppress the masses.
@Socrates- its neo liberalism. Which seems to never get mentioned because liberals are in denial. Conservatives are careful to let them in on their own pathology, carefully crafting and using it to their advantage.
As far as I know every state used to have copies of its 'status annotated' available in various public libraries and those libraries were open to public use for free.
But today's law library and the many legal materials it contains is increasingly on line.
So this case presents the question of what is today's on line equivalent of a public library?
Lawyers did not rely on the 'public library' versions of states annotated because they needed the latest, up to date versions of the law. They instead paid for WestLaw and Lexis accounts.
If the state provides a similar service for free (as they should) then there will be no need of the legal community to continue to pay for those services and Westlaw and Lexis will in all likelihood cease providing the annotation service.
One can still find these "annotations" but you would have to have the time and skill to look up each judicial decision by yourself.
If the state fails to provide these statutes and annotations for free, they will effectively remove access to them from most of the public.
This is indeed a complex issue that needs resolution from SCOTUS
4
@Drspock Doctor Spock, let the states pay the annotators. Let them use state employees to provide the annotation services, contract out the services, or a combination of in-sourcing and out-sourcing, whatever provides the best value, considering price, quality and schedule.
Why should this service be any different from any other state service? If I use the bathroom in a government building, I don't pay a fee to the bathroom maintenance contractor. Access to statutes and how they've been interpreted in court is fundamental, to both the required compliance with the law, and to participation in the electoral and other processes for creating, abolishing or amending laws.
When dealing with police, judges, lawyers, government agencies and politicians,and exercising our franchise, we don't need to play "I've got a secret," we need accurate information, on time.
6
Thanks for this informative article. Several questions, issues come to mind.
As one commenter noted (Bill), annotaters may or may not publish comprehensively - which then limits legal research, or makes it more difficult.
Sometimes judicial reasoning in one area....say, tax law, might have application in a totally unrelated area....constitutional law in a non-tax case. Annotations often don’t, can’t make that obscure connection.
One state (Idaho), and no doubt many/all others, offer a research program, Casemaker, at a small annual price to attorneys. Is that, fair?
Recently, the NYTimes took the Mueller report and quickly made it ‘searchable’. One document. Maybe Fox News made it searchable...in a different way. Shouldn’t annotations, searchability, connectivity, be subject to various competitors, competitive pricing? Can the state create a monopoly?
1
@Jo Williams The State IS a monopoly in almost everything it does. There is no competing private California Highway Patrol, no competing private Taxation Agency or Transportation Department etc., etc.
Indeed, states are monopolies whenever it is in the interest of the public to so to better serve the public. Authorizing, deliberately or by guile, a private competitor to the state which negatively impacts a state's ability to serve all its citizens should never be an acceptable option.
5
The state ‘monopoly’ is fulfilled by publishing just the laws, opinions. What if a state decided that only one newspaper was authorized to comment on those laws, connect opinions with statutes?
As a lawyer, I can honestly go both ways on this. Annotations are not the law, but if, and I shudder to think on this, the Georgia Supreme Court actually --cited annotations as authoritative-- then I think the state has to lose on this.
As always, NY Times says something crazy about Georgia, and I automatically assume its the country, and vice versa.
2
I think it would be reasonable to require free public access to published statutes, cases, and annotations of those materials, as does charging for the slip opinions as they come out before publication. Lawyers and judges absolutely need the latter; non-lawyers should have access to the former and, for a fee, the latter. That way, it’s the up-to-the-minute service that is monetized and not the law itself.
1
What is going on in states like Georgia and Ohio(where I live) is unsettling. There seems to be an agenda to tighten control of the government into the hands of a very few. Legislation is underway to limit the rights of citizens and, I believe, to cover-up or obscure what is really going on behind the curtain of state government. It is difficult for me to be uncomfortable in the state where I live and to be very uncomfortable about traveling to state like Georgia later this summer for a family celebration. Where I live and where I choose to travel may well change drastically and permanently in the years ahead just because of situations like this.
14
Terrorism? I thought it was the law that terrorized people, especially the poor.
20
Kafkaesque? Sure. Worse? could be.
10
I'll pass on the copyright issue in re the annotations ... but this reference -- "Still, the annotations are not themselves law, Judge Marcus wrote, making the case a hard one. But he concluded that the annotations were 'sufficiently lawlike' that they could not be copyrighted" -- MAKES NO SENSE … because no one (excepting maybe a lay person acting as his/her own attorney) has ever 'offered' "the annotations" as authority 'for' a legal argument.
Judicial opinions (not subject to copyright) -- routinely 'found' by searching IN and AMONG the annotations -- are what lawyers 'cite' as authority 'for or against' a given proposition (or as 'suggesting' some legal reasoning reported in respect of a different legal issue that might be instructive 'for' determination of the issue 'at hand').
9
Kudos to Mr. Malamud.
A legal code which is inscrutable and opaque serves only to further the interests of those who would follow the maxim of Stalin henchman Lavrentiy Beria, "show me the man and I'll show you the crime."
This is an issue that deserves bipartisan support and attention. Anyone interested in further reading on the subject would enjoy Harvey Silverglate's Three Felonies a Day, with introduction by Alan Dershowitz:
https://www.goodreads.com/book/show/6611240-three-felonies-a-day
7
Under the leadership of Governor Kemp, Georgia has become a laboratory to promulgate and test out every unhinged, malevolent, divisive and destructive theory of law, governance and social policy dreamed up by anyone.
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Who thought of the idea that the the judicial opinion regarding state laws should be restricted to paying customers? George Orwell?
18
I believe publishers are fully entitled to make money publishing the law. However the copy of the law itself is property of the citizenry and must remain freely accessible. If a volunteer is willing to spend the time archiving it and making it available, that is their right.
9
democracy demands that free access is given to the underlying law.
How else can we presume that everyone knows the law and no-one is above it when prosecuting it?
3
As a tax paying citizen, I have paid the state to make laws. I now own them. I paid the courts to interpret said laws thus making annotations necessary, so I guess I own them, too. I paid the state to hire lexis-nexis to publish these which makes me the owner of that as well.
Can I get my tax money back if i am proven not to be the owner?
33
This is the best example yet of government functions that cannot be privatized if you wish to maintain a democracy. But perhaps that is exactly the point here: democracy for those who can afford to pay for it. Any group of citizens historically denied access to the economic system, is denied the rights and privileges granted by the Constitution. In other words, this is another example of racism and elitism by wealthy white Southerners.
32
Fascinating.
As one who uses WestLaw every day in my job, I see arguments from both sides (although an accusation of terrorism is ridiculous).
WestLaw and LexisNexis make their money by selling access to their materials. As far as I know, that's the only way they make the bulk of their money.
While I agree that everyone has a right to access the materials, how do we do this and keep it updated, and easily searchable? If we get rid of WestLaw and LexisNexis, will our government do as good of a job as the private companies do? I seriously doubt it. If government didn't keep the material updated and easily searchable, wouldn't that be the same as denying access to it?
Secondly, it would cost money to do this. We're talking about an enormous amount of material to catalog. Are tax payers willing to pay more in taxes to accomplish this?
Very interesting argument.
4
There’s a possibly useful analogy for this situation in the software business: namely, open source software. The code for an open source software package is made freely available to anyone for use and modification, but at the same time companies exist which operate highly profitable businesses by packaging, supporting, and otherwise offering added value to the open source software. In short, it’s not an either-or situation for the software, and wouldn’t have to be for the law.
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@Patty O No, not really interesting. Economics of a private publishing company does not trump the rights of citizens.
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@Patty O
analogy:
“FireFighter Inc. makes their money by putting out fires in domestic residences. As far as I know, that's the only way they make the bulk of their money.
while everyone has a right...will our govt do a good job?... it would cost money...”
etc etc
2
This is just another attempt by a state to suppress knowledge and access and fundamental rights in the same vain as voter ID laws. Keep citizens ignorant as a means to retain and expand control.
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I can hardly wait to see what happens when this court case gets annotated and Carl Malamud's group posts it.
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As Anatoly France so eloquently put it: "“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, to steal their bread, and to access the law without first paying Lexis or Westlaw.”
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The irony is that Lexis-Nexus must pay royalties to the state to use taxpayer funded law but Facebook is not bound to pay individuals for the equivalent personal information.
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Of course Georgia's real problem is not copy rights, but the content of the materials underlying the laws that Georgia has on the books.
Anyone want to bet against the possibilty that the GOP favors those statutes and doesn't want many Georgians to find out why they exist and who is responsible?
18
The state either has to buy out the Lexis-Nexis contract or put some legal writers in a room without Lexis-Nexis and have them write annotations for every law until some decades from now, the State once again owns all annotations.
Wow. I'm a public servant (not in Georgia) and *everything* I produce is subject to a public records request. I don't put anything in an e-mail that I'm not comfortable seeing on the cover of, well, this paper.
17
A lot of commenters here seem to be expressing ire that "the law" has been privatized. It has not. A legal publishing company has, presumably under a transparent and competitive selection procedure, licensed the right to compile and publish the statutes along with relevant notes on the history, experience, and selected court interpretations of those statutes. That's a lot of professional work. An incredible amount, in fact.
It is understandable that we might want something like that made publicly available for free. But if that were the case, Georgia's taxpayers would need to pay for its production and maintenance. Someone must, because it won't happen spontaneously.
When you get something for free, you get what you pay for.
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This is simply too important to be outsourced. Agree the work should be paid for, but should not have been hired out in the first place.
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@Retroatavist Yes, the state has a job to do ....and the laws and their construction and history belong to the people. A slightly higher tax on lawyers should cover the costs be they private or public.
No matter who wins and who loses, the lawyers always get paid. Let them pay up !
3
@Retroatavist: It should not be licensed and no government entity should be receiving royalties for it. The source material should be made available on the Internet by the state to anyone. And if anyone wants to publish it on the Internet or on paper or any other medium, then they should be free to do so. It's already been paid for by the taxpayers and is in the public domain and should not be copyrighted.
3
"The state says this is a sensible cost-saving measure, 'minimizing burdens on taxpayers' by sparing them from paying for the preparation of annotations."
This makes no sense, because (according to the state) the taxpayers do have to pay, to buy the annotated version.
No such thing as a free lunch, despite what government "privatization" efforts try to tell us.
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One small point. When Georgia's lawyers accuse Malamud of terrorism, they are quoting Malamud himself! In a book called Exploring the Internet, published in 1993, he referred to his activism as "standards terrorism". This is cited in the legal filing.
Obviously it's silly for the lawyers to make so much of a word that Malamud used semi-jokingly 25 years ago. Nonetheless, all the coverage of Malamud (both now and in 2015 when he last made the news) leads with the "terrorism" thing as if Georgia's lawyers came up with themselves. It would be truly demented if they had. But they did not come up with it themselves, they merely latched on to it.
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@Ned
Terrorism has never been a positive word but a lot has changed in the last 25 years concerning that word. Today referring to yourself as terrorist would have serious repercussions. I would assume Georgia's lawyers know this and have latched onto it because it is inflammatory. And that is demented.
13
@Ned Oh so Kafkaesque!
1
"States have struck deals with legal publishers, the article said, that have effectively privatized the law. “Publishers now use powerful legal tools to control who has access to the text of the law, how much they must pay and under what terms,” the article said."
This is fascinating. Malamaud's fight and desire to take this to the High Court, which might decline it, is to settle the question once and for all, before other states try doing the same thing.
I can't see how state residents and taxpayers can be denied access to the process and adjudications of laws on state books. In many cases, the notes are more interesting than the statute itself, because it documents the tough journey the law traveled (and defended itself) and why.
It's important for history, for sure. You can't copyright history, any more than you can copyright current events.
18
I hope SCOTUS upholds the lower court decision but wouldn't bank on it. It is very brave of Mr. Malamud to risk it.
12
The idea that “ignorance of the law is no excuse” rests on the idea that the laws are freely accessible to all. If one must pay a fee to see what the law is, or is otherwise barred from viewing one’s legal duties, this concept falls apart. Unless, of course, one thinks that only those with money should be treated fairly.
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Mr. Malamud, my advice is to sue the State of Georgia into next week.
Both State and Federal governments are beholden to the taxpayers. Why, you ask? Because we are a democracy? In part, but more so because we are TAXPAYERS! You and I paid for all of the laws to be written, the desks those lawmakers sat in, and we built the chamber they (supposedly) legislate in.
Sue them into next week. Contact the ACLU.
If I was an attorney, I would love to assist. Another example of government over-reach.
Can’t get any more inept than Georgia. Trumps Base. Lord help you.
27
As part of the ongoing privatization of public services, rights & assets we have the selling of the law. This is not the most blatant example of an mostly hidden process but does give us some insights into the people buying and selling our government out from under us. The example of calling the providing of access to public documents “terrorism” is fascinating, next we’ll be calling librarians “ terrorists”. Everything that can be put behind a pay wall will be & everything someone can make profit from will be sold.
16
This is a pretty strange arrangement. Most annotated statutes I’ve seen aren’t specifically sanctioned by the State, they are just a practitioners tool, albeit a very useful one.
There has always been a fear about making annotated laws available to the public, as they are not definitive nor do they offer guidance in all cases. The legal publishers produce summaries and guidance that is copyrighted, even if the decision is not, I would assume the same applies to annotations.
1
What's the terrorism aspect of it? Or is that assertion too ridiculous to explore?
16
This should take anyone with a modicum of reason about a millisecond to realize and declare that the work of the state, an 'organization' that is an organ of the people and controlled by the people, is free and open to all. Otherwise it is a barrier for those the laws apply to to gain full understanding and interpretation of the laws the people must obey.
Like selling access to driver's license and vehicle registration records, the states have gone too far in vacuuming up dollars where ever they can.
19
Had I but the ambition of my 18th-century forebears, I would hasten to Georgia and compile a catalogue of every law I had broken unimpeded by enforcement, then published it to the great chagrin of the authorities...but in the 21st century, I am one of those badged and sworn authorities, alas.
2
What’s the rush? All that copyrighted stuff will be in the public domain in 75 years.
3
Copyright law explicitly states that government documents are not protected by copyright, which includes law.
On the other hand, annotations, which include analysis and perhaps "original work" by an author, might be another matter.
Interesting to see how it pans out in the end.
4
@Phil Sure, but in this case it's contracted so that the government holds the copyright which should make it fall in the public domain.
12
the copyright act does not address the work of state employees. also, annotations are not statutes.
Beyond ridiculous! I guess everything is up for sale.
8
If an employee produces a document during work hours, the employer owns the copyright. The employee is not allowed to charge an extra fee for publication of work by the employer (owner) that the employee does not own.
These laws and annotations were produced using taxpayer dollars. They belong to the people, not to the state. The state has no right to sell copyrights that they don't own to third party vendors any more than they have the right to inhibit access to the documents to the taxpayer who already purchased them.
This is a thinly veiled attempt to inhibit, or in some cases prevent, taxpayers from having access to their own property.
57
As noted in the article, the dispute here is an outgrowth of sustained attack on the core functions of government—the privatization of public resources and services. The idea that the law should reside behind a paywall is only one outrageous example of this trend, which is really an attack on democracy.
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Like legal interpretations conveniently kept secret for "national security," the copyrighting of laws is a blatant abuse of power.
Laws that cannot be announced by everyone should not bind anyone.
43
Generally speaking the Law is a balance between two principles: Those of Notice and Responsibility. One is responsible for following the Law to which one was given Notice. One cannot claim ignorance of such Law providing Notice was given.
Depending on the amount of loss at stake (Economic or of Liberty) that necessary level of notice will vary from the vey vague to the super specific.
So it may likely boil down to what is sufficient notice. Is publishing the statutes themselves notice enough or should the annotations providing the finer grained detail and context be provided?
To determine that level of notice the Courts have historically relied on a third factor that of Public Policy.
Historically and that is really my own interpretation Courts have ruled that the level of notice needed is the one that falls just short of outrage. That is the least notice possible so that the mob ( you and me) stays under control.
I will be looking forward to the next "Twister" display by the nines in their decision unless they are now fully co opted by the dictatorial winds that have been blowing over this land and feel empowered to ignore decorum.
May we live in interesting times... I miss boring.
9
Can't quote Ben Franklin enough..."Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Of course this actually has nothing to do with terrorism or safety except from a GOP that wants to continually hide what they are doing.
33
This is the same state that recently enacted a draconian anti-abortion law replete with vicious penalties. It is also the same state where the secretary of state went "all in" on voter suppression techniques in part to boost his own gubernatorial campaign. No big surprise that it would want to suppress access to knowledge about the laws and that its prosecutors would grossly overcharge someone in the effort.
67
As an information lawyer, I have watched for decades as states and the federal government look for ways to avoid the appropriation process by farming out a government function to a private company by giving them an exclusive license to information that should be freely available to all. In fact, all the way back in 1985, the SEC tried to do this by farming out the EDGAR system to Arthur Andersen. Today, this is a good deal for Lexis-Nexis and the state’s budget but not for the public.
55
@Peter On a similar note, the agreement by the IRS to NOT provide a free e-file system with the understanding that private companies would do so, except such companies did not live up to their end of the bargain.
So tired of all this privatization!
19
So let's see--the state's position is "Ignorance of the law is no excuse" and "Spreading knowledge of our laws is copyright infringement".
It appears Georgia would prefer that its citizens break the law so they can be punished.
107
I am not a lawyer - but love reading about our laws.
I read the whole Mueller report with all of its 1,000 plus footnotes.
Without some of these footnotes, a paragraph in the report would not make as much sense.
Or for that matter, the letter to AG of Mr. Flood, POTUS special counsel. Even his 3 page letter had many footnotes.
One in particular stands out about Mr. Ben Veniste - The Watergate Prosecutor - who opined that his own Watergate report cannot be used by Congress as a basis for impeachment to support Mr Flood argument that Mueller is good only for the Executive.
So, these interpretations are important.
And if I, as a tax payer is paying learned lawyers to write these annotations to my state's laws - i think copyrights may be warranted - if not for the laws themselves.
I would be inclined to have a copyright fee levied against out of state lawyers who come to my state to defend or argue a case for a defendant or a plaintiff.
This article explains why there might be a copyright infringement issue. But how do we get from there to the state's allegation of "a strategy of terrorism"? The article mentions this allegation but doesn't explain it. What gives?
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@Neil Grossman See pages 11 and 12 of the Complaint for Injunctive Relief filed by Georgia and linked by Adam Liptak. "Consistent with its strategy of terrorism, Defendant freely admits to the
copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations …."
13
@Jerry Norton still doesn't explain how this is a "strategy of terrorism".
7
@Leslie, neither does the State of Georgia.
14
“The annotations were prepared by lawyers working for LexisNexis as part of a financial arrangement with the state. Georgia holds the copyright to the annotations, but the company has the right to sell them while paying the state a royalty.” My question is? What about if this company LexisNexis is sold, or it is own by a foreign investor? Do the States have the legal right to own the law and its annotations? And do as it pleases?
27
Am I missing something? The state has the copyright and the private company can sell the product. So if I don't want to BUY it from this company I can copy it from the state?
3
Absolutely positively all citizens should have unfettered access to all laws without paying a fee. That’s a no brainer. Who thinks up this stuff? States have already gone way too far in their creative financing.
69
I will agree that money/copyright is involved here. I will even acknowledge that the lawyers' lobby of Georgia has a strong reasons to support a law which helps them keep their place in society. But I believe that the real reason is to keep knowledge, and therefore power, out of the hands of the people. And keep the power in the hands of the powerful. This is Georgia we are talking about. The last election they had showed what the powerful will do to stay in power.
117
The blackletter law (i.e., the statute itself) tells you relatively little. It is simply a framework on which the rest of the structure is hung. In order to truly understand what a statute means you need the annotated decisions and notes.
You are responsible for obeying the law, notes and decisions included. If you do not have access to these items (e.g, someone who, like myself, is too poor to pay for access) how are you to be held accountable for a law that you can not (as opposed to do not) know about and understand?
Yet the paradox is that you will be held responsible. By putting these items out of reach you have transformed that statute into the equivalent of an unpublished law - thereby negating the principle that all laws should be public and known to all.
Secret laws are the mark of a fascistic regime, not a democracy. If this is allowed to stand I leave it as an exercise to the reader to decide what sort of society we find ourselves living in.
217
@Alternate Identity
You will be held accountable unless you are Trump and his associates meeting with the Russians to talk about a Wikileaks dump; in which case not their realizing that was against the law was enough for the Special Prosecutor to conclude he could never convict.
Or unless you are rich, white and have committed any number of white collar crimes.
18
@Alternate Identity I share your feelings about the importance of making laws available to the public. However, we must be careful not to confound the availability of a statute online with one available publicly. Every citizen in this country has the right to go to their county courthouse, or in many cases, too, their public library, and ask to read these materials. Their relative access in physical form obviously doesn't hold a candle to it being available online, for everyone, at the same time, to read. But they are still no less publicly available.
3
@Alternate Identity
I applaud the nicety with which you point out of the Kafkaesque aspect of this controversy.
Addressing a comment to your comment, the law should be as readily available to the public as possible - not just to those who know that there's a law library in their courthouse and have the luxury of ready access to same.
14
Isn’t disturbingly upsetting? In the United States of America, even the Law can be commercialized for the free enterprise?
53
@RBR The law has already been commercialized. We make sure public defenders are overworked to force anyone with resources to hire private counsel.
13
Laws are owned by the people. Wait... didn’t they just rig an election? Perhaps in Georgia, those in power own the laws. Which Georgia are we talking about?
32
"Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a 'strategy of terrorism'.” Did the article explain Georgia's theory of why it considers posting the annotations a "strategy of terrorism"?
87
An examination of annotations provides context and intent so the legal community can apply the law and the general public can more fully understand the purpose of the laws passed by any legislative body. Criminalizing attempts to clarify laws is clearly corruption and copyright laws have little to do with understanding the intent of any law passed in any legislative forum. Copyright laws applied in this way can by no stretch of the imagination be even considered here as they were intended to protect private publications, not laws that the entire nation or state are required for follow or understand. This is a dangerous place to be in a democracy.
137
There is another even more disturbing component to the control of legal matters. The private sector publishers of court decisions aren't required to publish every decision. There are a lot of decisions that have been unfavorable to insurance companies, financial institutions, and other centers of power that are not published. These institutions buy the right to publish from the private publishers before they put the decision in the drawer. Even decisions by the U.S. Supreme Court have been unpublished. The presidential election of G.W. Bush that was decided by the Supreme Court is not published! Leads one to wonder about the First Amendment and who is upholding the Constitution.
313
@Bill
The U.S. is a country of the corporation, by the corporation and for the corporation.
Simple as that.
37
@CDW
Remember, a corporation is a person, and, according to the criteria in the diagnostic manual, that person is a sociopath.
40
@Bill It is incorrect to say that private institutions determine which court decisions are published. West Publishing, now a division of Thomson Reuters, publishes the decisions of every state supreme court and lower level appellate court, as well as the federal courts of appeals, in its West Reporter System. Any decision not to publish such an opinion is made by the court itself, not by the publisher or any other private entity. And even in those cases, the opinion is still available online through Westlaw, Lexis Nexis, or the court's own website, albeit with the admonition that the decision is not for publication (which generally means it is not binding precedent, though it may be cited under certain conditions for its persuasive value). In the case of the federal courts of appeals, opinions not for publication in the official Federal Reporter actually are published by West Publishing in the bound volumes of the Federal Appendix. As to Bush v. Gore, it is published in the official, government-published United States Reports -- 531 U.S. 98 (2000) -- as well as West's Supreme Court Reporter (121 S. Ct. 525) and other unofficial and privately published reporters. The only instance in which not every court decision is published occurs at the trial court level. Not every federal district court order or memorandum is published. They are generally published because the trial judge or one of the parties has requested that West publish it in the Federal Supplement.
19