The State of Georgia in the US is suing the owner of the Public.Resource.org website for publishing the State of Georgia's own laws online.
According to the lawsuit [PDF] filed this week, Carl Malamud has "engaged in an 18 year long crusade to control the accessibility of U.S. government documents by becoming the United States’ Public Printer."
Although an alternative reading could be that he was simply publishing public laws on the internet.
At the center of the issue is not Georgia's basic legal code – that is made readily available online and off – but the annotated version of it. That annotated version is frequently used by the courts to make decisions of law, and as such Malamud decided it should also be made easily accessible online.
Georgia says that information is copyrighted, however, and it wants him to stop publishing it. Currently you can access the information through legal publisher Lexis Nexis, either by paying $378 for a printed copy or by going through an unusual series of online steps from Georgia's General Assembly website through to Lexis Nexis' relevant webpages (going direct to the relevant Lexis Nexis webpages will give you a blank page).
Malamud argues that the law should not be subject to any form of copyright provisions and has previously put forward a legal argument that presumably he will offer in response to the lawsuit.
It is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.
He then quotes some supreme court decisions in support of his view.
One issue may be that, as well as posting the text of the law in an XML format, Malamud has scanned the printed version of the code and then posted it as a downloadable PDF on his website.
However, the State of Georgia filing points to a little more animus than concerns over scanned documents. In particular it uses a quote of Malamud's from an article in 2009 in which he talked about committing "standards terrorism" to actually accuse Malamud of committing a form of terrorism. "Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations," reads the lawsuit in part.
It also argues, somewhat unpersuasively, that without the ability to charge for access to its annotated law, the State of Georgia would not be able to maintain it.
Each of these annotations is an original and creative work of authorship that is protected by copyrights owned by the State of Georgia. Without providing the publisher with the ability to recoup its costs for the development of these copyrighted annotations, the State of Georgia will be required to either stop publishing the annotations altogether or pay for development of the annotations using state tax dollars. Unless Defendant's infringing activities are enjoined, Plaintiff and citizens of the State of Georgia will face losing valuable analysis and guidance regarding their state laws.
It's also clear that Georgia did not put its finest lawyers on the case, with references to "creating derivative works" and Creative Commons licenses that make it plain that the authors do not understand recent changes in copyright law that have happened since it became possible to quickly and easily post information on the internet.
What is not under question is Malamud's dedication to making inaccessible public information available. He has spoken, lectured, and advocated for many years about how this information needs to be restructured and put online. For example, he is a fierce critic of the outdated and clunky PACER system that provides access to court documents across the US. And he has argued passionately for making companies' Form 990 tax returns accessible in a machine-friendly format.
While he is not alone in his desire to update the record keeping of the United States, he is also massively under-resourced and holds crowdsourcing efforts and donation drives to keep his website up and activities going. The State of Georgia does not see this activity graciously, arguing that it is little more than receiving payment to help his continuing to break the law.
It's not just Georgia either. Oregon sent a letter a few years ago insisting that Public Resource stop infringing its copyright. After some pressure, it backed down. But Georgia now seems determined to take the matter to court.
We predict Mr Malamud will start getting the kind of support he has long argued for. ®
Hat tip to TechDirt, which has been following this issue for a number of years.