Oregon Claims Copyright

The Volokh Conspiracy has a post about the State of Oregon claiming copyright infringement and sending cease and desist letters to sites that publish its public laws.

What burns me up is that the State of Oregon would choose to assert its rather fanciful copyright claim for the purpose of making public access to the authoritative version of its laws more, rather than less, difficult. It is completely outrageous that in 2008 we do not have a complete and authoritative compendium of all of the laws of the 50 States, and the federal government, available at no cost on the net. Oh, did I mention that Thomson-West Publishing publishes and sells the Oregon Revised Statutes (and makes it available, for a fee, over its Westlaw service)? My colleague Peter Martin, of the Cornell Legal Information Institute, has been working on this problem for years and years, and has made some, but far too little, headway — though I hope he keeps fighting the good fight on this front.

Volokh notes correctly that publishers claim rights in what they add to the editions of the law – annotations and indexing guides, which may meet the requisite level of originality. But in this case, the cease and desist letter are being sent by the state.

Boing Boing has more.

The position of the Legislative Counsel is that their public access obligations have been fulfilled by their web site. However, their web site has over 500,000 HTML errors, does not meet Section 508 accessibility requirements, has no metadata, as our second letter points out.

Particularly galling is the fact that Thomson West has also made a copy of these statutes and has done so without a commercial license, but the Legislative Counsel explicitly told Tim Stanley of Justia that they weren’t going to send cease and desist letters to West. Evidently, it is much easier to pick on the little guys.

TechDirt has the letter sent by the state.

The state’s claim of copyright is quite weak, as noted by these commentators. The law is settled that federal and state statutes and court opinions belong to the public domain. The Copyright Act specifically excludes works of the federal government from copyright protection. A “work of the federal government” would include anything created by a government employee as part of his official duties.

But that does not address the rights of state governments. Although states may claim a right in the indexing and annotations, any indexing and annotating done by the state is carried out in an official and representative capacity.

Governments at all levels churn out mountains of legislation and regulations. Without indexing tools, it is impossible to discern what the law is. A private publisher that creates those tools at least has a rational argument for wanting to charge a fee for use. But what possible argument does the state have when tax money has been spent to create the tools? It is quite simply unconscionable for the state to propound laws and regulations that its citizens must abide by, use tax revenues to index the laws, and then exclude the citizenry that it represents from use of those materials.

Tagged as: copyright, oregon