I’ve been following Carl Malamud’s work on public access to state codes, and, if I may say, the response by the State of Georgia is absolutely infuriating. Citizens ought to have a right to read the law and teach others about it without the threat of a civil suit or criminal penalties, but Georgia’s top law lawyers don’t see it that way.
TL;DR: Did you read Georgia’s state code on an iPad? The feds could throw you in jail.
Background & the Copyright Claim
Georgia publishes its statutory law in something called the “Official Code of Georgia Annotated.” You can either get it online for “free” or in 40 physical books, at a cost of $378 when purchased through the legal publisher LexisNexis.
In May 2013, Carl bought the books, scanned them, and put them online to improve public access. The Georgia Code Revision Commission, which is the government body that publishes the code, replied, in big capital letters, “CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.” The commission’s claim is that while the law itself is not copyrighted, it is inextricably intertwined with other explanatory material called annotations which don’t have the force of law, and thus are copyrightable.
Carl disagrees with their claim (page 2), and he has a point. See this analysis of the copyright claim by Tim Armstrong when the State of Oregon made a similar assertion in 2008, and this 2014 Oregon Law Review article by Beth Ford (93 Or. L. Rev. 539).
But I’m not a lawyer, so let me put the copyright question aside and just look at this part ethically. (Update: This and the preceding paragraph were updated post-publication.)
Even, even, if we accept their position that the annotations are copyrighted, the commission is still in a major pickle: The Official Code of Georgia Annotated doesn’t delineate what parts are the actual law, what parts are copyrighted by the commission, and what parts are copyrighted by the publisher LexisNexis. A legal expert can guess that what they’re referring to is the part printed in a smaller font size. An average citizen who wants to read the law — because he is responsible for knowing all of it — does so at his own risk. Should he copy & paste a page into his blog, he risks infringing on the copyright of two possible authors (the commission and Lexis), and thus risks a costly lawsuit and statutory damages.
While the probability of a lawsuit is low, I admit, the commission has an ethical responsibility — if not a legal one — to provide the public with access to the law in a way that doesn’t put the public at risk of a lawsuit.
But it gets worse…
(Note that the discussion below about terms of service is not related to Carl’s situation, since Carl used the printed volumes. It’s a hypothetical for the rest of us. Update: This paragraph added shortly after publication.)
If you think, like any sane person, that you might find what you’re looking for in the code faster using a computer, the Georgia commission noted in their response to Carl that free, online access to Georgia’s statutory laws is already available at www.legis.ga.gov.
False.They don’t charge money for access, true. But they do require assent to a contract. It’s a trade. You get to see the law, and in return you give up the right to do certain things. It’s Free With An Asterisk. Terms & conditions apply.
Here’s what happens. When you follow the link to http://www.legis.ga.gov and then click Georgia Code, you’re presented with contract #1:
The Official Code of Georgia Annotated (O.C.G.A.) is copyrighted by the State of Georgia. By using this website, the user acknowledges the State’s copyright interests in the O.C.G.A. Neither the O.C.G.A. nor any portions thereof shall be reproduced in any form without written permission from the Georgia Code Revision Commission, except for: (1) fair use under the copyright laws of the United States; or (2) those limited portions that are in the public domain (statute text and numbering).
Use of this website and the downloading or copying of any material there from shall be subject to the Terms and Conditions of LexisNexis®, which is the official publisher of the O.C.G.A. [ . . .]
Then you click “OK – Close”, and you are taken to a LexisNexis website. Now you click “Terms and Conditions” to read contract #2, from LexisNexis, which is a four page Word document. Here are some excerpts:
You are hereby granted … the rights to use the Research Service on one single-user personal computer.
Is an iPad a personal computer? I’m not sure. And if you share your iPad with your significant other, don’t go reading the law on it!
[Y]ou may not, nor may you permit others to … copy all or any portion of the Research Service
You may not, nor may you permit others to … make any portion of the Research Service available to third parties through … the Internet
Read the law you may, but if you want to tell anyone what you read — be careful!
The technology used … in the Website … is a trade secret, and you will … not disclose that information or permit that information to be disclosed to any person or entity.
Did you just agree to an NDA in order to read the law?
You hereby represent and warrant that all use of the Research Service will comply with this Agreement and all federal, state and local laws, statutes, rules and regulations.
Surely you don’t plan to break any laws by reading the law, but what if you do? Not only do we not withhold the law from those convicted of crimes, we actually provide the law to prisoners to assist in their own defense. This paragraph, even though innocuous sounding, is antithetical to public access.
You’re probably thinking: that’s civil, not criminal. But online the distinction between civil and criminal is wiped away. Violations of website terms of service agreements like these can lead to federal felony charges, meaning possibly jail, under the Computer Fraud and Abuse Act. It happens. People are trying to fix this. So it is criminal too.
Forcing your citizens to enter into a contract with a private (and foreign) company in order to read the law, with the threat of a civil suit, criminal charges, a felony conviction, and jail for violating that contract, is not free access.
Note that Carl scanned the print edition, not the website, so the discussion in this section is not relevant to Carl’s particular situation. But one way to resolve the iPad question is to resolve the copyright question that Carl raised. There needs to be at least one avenue where the commission accepts free and unencumbered copying of the code, and right now each avenue is a problem (copyright in print and terms of service online). (Update: This paragraph added a few minutes post publication and revised a few times.)
This situation is complicated, but it’s not intractable. I’ve worked with the Council of the District of Columbia on addressing some of these issues for DC’s laws. I also recognize many challenges in actually resolving the situation in Georgia that I haven’t mentioned here. But the State of Georgia is acting in a manner that is most disrespectful toward the public.
For more on why public access to the law is important, see my previous post about the DC Code.
Finally, if this aggravates you at all, please support Carl Malamud’s work.
In Delaware, making a copy of Title 8 of the Delaware Code can result in a $500 fine and 3-month imprisonment, per 8 Del. C. 1953, § 397, h/t Carl again.