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E-mail, Feeds, 'n' Stuff

Saturday, April 19, 2008

Don't you dare post Oregon laws on the internet!

Here's some outrage for your extended-winter weekend in the Beaver State. A group of state legislators called the "Oregon Legislative Counsel Committee" is now threatening to sue some folks who have posted the full text of the Oregon Revised Statutes on the internet. Of all the things that the state would claim copyright in, they're now prohibiting people from publishing the law itself!

Crazy? Yes. True? Also yes. The cease-and-desist letter is here. A blog post critical of this development is here.

I think it's time for the "Legislative Committee" to get called on the carpet.

And guess who the co-chair of that committee is?

Jeff Merkley!

Other members: Kate Brown and Greg Macpherson!

This is what we get from the Democratic establishment in this state. You've got e-mail, right? Please let these people have it, folks -- early and often.

Comments (46)

Is this bizarre?

I wouldn't acknowledge any economic interest for the state's restricting publication (even though it's our economic interest as taxpayers), but there may be a practical issue: someone should be accountable for having the published versions be correct and up-to-date. That would be a legitimate reason to limit other publishers, who could be allowed to furnish a link to the real thing.

Anyone can link to anything.

Public records are public records. Sure, there's an interest in having them be correct, but that doesn't take them out of the public domain.

There is no practical issue. If someone relies on an un-official, outdated or redacted version of the ORS, it's their own darn fault. The official updated version is published on the State website. And even that version comes with a disclaimer stating that the web version is not the "official" text, and you rely on it at your own risk, yadda, yadda, yadda.

Several private publishers reprint the Oregon Revised Statutes, and post them on the internet; they have done so for years, without any public discussion of any threats of legal action. Perhaps they have been paying the state fees for a "copyright license"?

"Crazy? Yes. True? Also yes."

The only thing more crazy is the comment:
"That would be a legitimate reason to limit other publishers, who could be allowed to furnish a link to the real thing."

I agree about furnishing a link, but limiting other publishers? ...and then threaten to sue them? Crazy.

The really stupid part is that they are not claiming copyright to the text of the law, but to the formatting such as page numbering and headings? Thats just dumb.

If Justia earns income from advertising posted on their web site which also re-publishes the ORS, I fail to see a problem with the State demanding a reasonable licensing fee for the re-publication?

they are not claiming copyright to the text of the law, but to the formatting such as page numbering and headings

No, it's much more than that. They say they have a copyright over "the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations..."

Without all that, any version of Oregon law would be so unusable as to be completely meaningless. Particularly the arrangement and subject-matter compilation and section numbers. Give me a break!

If Justia earns income from advertising posted on their web site which also re-publishes the ORS, I fail to see a problem with the State demanding a reasonable licensing fee for the re-publication?

Really? Wow. You and Franz Kafka.

So, we're saying it's quite ok for a private company to appropriate the state's work product, apply its own copyright notice to it, and profit from it?

The "state's work product" is a public document. Everyone should have access to it, and the right to do whatever they want with it.

People have been selling compilations of the law in this country for a loooooooong time.

As for the private company affixing its own copyright notice to it, that's a different issue. A private company has no copyright to government documents that it reproduces.

But Jeff Merkley's committee is trying to stop someone from publishing the law. That is an outrage.

Ten+ years ago I attended a hearing on the ORS copyright issue and asked that they craft an exception to the fee charged to West and the like to accommodate small ventures. And they did, for me. This was not for distribution on the Internet but for a CD. (You can even find stale references to the CD on the Internet today. It was Mac-only, and I reached insurmountable frustration with converting it to Windows using Bill's MFC library.) I had my own document format and search engine and had comprehensive linking between the included data sets for each citation reference.

What might be the economic model I could use to cover for the cost of posting the entirety of Oregon case law on the Internet? And what claim could I make to halt someone from just duplicating the entirety of the data that I have prepared? (It takes forever to strip copyrighted material from tiff images, while retaining noncopyrightable material, free of OCR errors.)

I plan on integration with community developed head notes, where the contributors maintain their own copyright claims and confine access and republication all on their own.

If I die tomorrow what I have is available for potential transfer to the public domain, so that my life is not a total waste. I have even decided, only-recently, to use Python to make my processes readable by a larger set of computer nerds. I want enough money for a co-located server (due to artificially limited upload speed via DSL or cable). I want enough money to pay 3 grand for a license to use QT for the GUI interface for companion applications that let a legal researcher do their own stuff without it ever passing over the Internet. I have recently planted my face into a new 50 dollar book on PyQT . . . just for kicks.

Does anyone have a surplus set of books from Or App 133-Present and Or 320-Present? (and volume 134 Or, which was destroyed when cutting) I can't afford these either. I will however stay up all night long processing the cut books, if the books themselves magically land on my doorstep.

If you want to vent some outrage you might consider whether the folks that offer CaseMaker can, in complete conformity with ORS 646.010 to 646.180, demand as a precondition to access to their private database that someone be a member of the bar. Or rather, whether the Oregon State Bar can enter into a "strategic" relationship with them that seems in complete agreement with this bold violation of the statutes. They refused my 15 dollar offering, for access. The Oregon Supreme Court is today pondering a certified question law from the Ninth Circuit where the phrase "discount attribution" is at issue. If the seller refuses to take my 15 bucks, rather than say an alternative price of 20 bucks or 500 bucks for non-members of the bar what might be the "discount attribution?" It is strictly qualitative, and absurd, and illegal (and I plan to sue on the matter, eventually).

I did note something that is entirely new in the cease and desist letter, and that is the expression of a willingness to negotiate for republication via the Internet. I planned on crafting a routine to run on a web-browser's own computer where they access the state's URL and then process it to build an outline and links dynamically (with appropriate links to cases too), so as not to violate the state's claim of a copyright or have the state's bytes pass through my web site. It is technically feasible, though the process itself would likely be open source. Justia could do the same thing, far cheaper than engaging in a legal fight with the state.

This just makes no sense.

For starters, isn't there supposed to be some sort of recognizable monetary loss on the part of the copyright holder? For instance, if I published a Harry Potter book online without permission of J.K. Rowling, she loses money in terms of lost book sales. Is the Legislative Counsel making a profit by publishing the ORS? They shouldn't be. They should be charging exactly enough to cover the expenses of printing them as a service to the public and to the Bar.

Second, don't you have to actually "own" the material in order to copyright it? The law doesn't belong to LC. The law belongs to all the people of Oregon.

Third, even if you assume that LC really does own the law, and that LC really is entitled to profit from it, don't you need to show that the unauthorized publication factually cuts into sales? Here is the most damning evidence against the LC: the entire ORS is available, for free, online, courtesy of... THE STATE LEGISLATIVE WEB SITE.

If anything, someone else copying it and posting it online SAVES THE STATE MONEY because if some people are reading ORS on the unauthorized site, that's less bandwidth the tax payers need to foot the bill for.

Talk about lame.

We're talking about Oregon state government. Lame.

Oh, and as to the policy of it...

If the law isn't freely available to everyone, then the excuse "I didn't know that was illegal" suddenly becomes valid.

Citizens are expected to be able to know the law, that they may know certain acts are illegal. But if the state puts ANY restrictions on access to the law, even if it is simply charging a fee or requiring a license to publish, then the state has created a burden, albeit a tiny one, that could legitimately be exploited by people claiming ignorance.

The mere fact that a person could still walk into a library and open a book, or use the state-run website, and find the law suddenly doesn't seem so absolute once there is a "chilling effect" on the free access to the law produced by state actions such as this.

I'm serious. If I were a defense attorney in an otherwise hopeless case, I'd try this out.

These laws are not the property of the State.
We elected these people and pay them a salary
to run our State.
I my humble opinion this makes everything they do in the actions of there elected position public domain. They belong to use lock, stock and barrel.
Make it simple, I paid for it they belong to me and the rest of Oregon. If I want to print them out and use them for tee-pee who's business is it.

The entire Oregon Revised Statutes are here, online, for you, for free:


Shhh... don't tell.

the nice ladies at the Oregon Legal Research blog have some interesting comments on this:


Hey Jack, do you think the Legislative Counsel will see the irony of my posting ORS 192 onto my blog?


I dunno, but let's see if they want to go to the mat with me over Chapter 286.

You know, I suspect that the real concern is the idea that different people will post different outdated versions of statutes, and speaking pragmatically, I understand what they're saying, and it's a HUGE problem for all legislative bodies. When I worked in the Minnesota legislature, providing reference material online became a major issue, because there was no way you could guarantee that, say, a quick guide to state minimum wage law would be instantaneously updated as soon as the law changed -- let alone a buried reference to minimum wage in a publication about the law on Indian reservations, for instance.

HOWEVER, this is not the answer, because as you say, Jack, these have to be public documents. There's no excuse for them to be treated otherwise, to me. These aren't creative works, and neither are the freaking section numbers -- that argument is ridiculous.

I don't like the version of the ORS on the legislature's web site. It's hard to navigate. You can't link to a specific statute, only a chapter at a time. It definitely has a Web 1.0 (or perhaps Gopher) feel to it.

If people were free to make their own online versions of the ORS, I suspect someone would make a version with a much nicer interface.

The old "people need to be sure they have the official current law" gag is a canard. Libraries are full of old copies of ORS that are no longer valid. The first thing they teach you in legal research class is that only the most current version of the offically published law (be it ORS, court reporters, or any other source) is valid and anything else is not. If you find a statute on Joe Bob's Country Law and Hog Reports Blog and think it answers your legal question, you should verify it by checking the official source. If you don't verify it, that's your own stupidity.

Preventing people from posting Oregon's laws poses a chilling effect on free speech. For example, I might be afraid to post the following (and Jack Bog might be afraid to host it):

"I propose the following be added to and made part of Oregon Revised Statutes:

"192.900 Nothing contained in any part of Oregon Revised Statutes, nor any decision by Oregon courts, shall be construed as prohibiting the private publication of the Oregon Revised Statutes in whole or in part."

See, an ignorant lay person might want to publish ORS on his website. He might try doing his own legal research by googling "private publication of the Oregon Revised Statutes." That might bring him to this page, which he might quickly scan rather than carefully read. Then he might stumble upon this comment, read JUST the proposed addition, and falsely conclude that he read in the ORS that "192.900 Nothing contained in any part of Oregon Revised Statutes, nor any decision by Oregon courts, shall be construed as prohibiting the private publication of the Oregon Revised Statutes in whole or in part." Then he might go ahead and publish, only to face a legal challenge. Using this example, one could argue that posting this comment shouldn't be allowed - just as posting copies of the ORS shouldn't be allowed.

BUT as you can see, that dampers our ability to freely post a legitimate discussion about the law!

If a person takes action based on a false understanding of the law caused by reading an out of date, erroneous, or even outright made-up statute on the web, that's his own damn fault. We shouldn't cut into our free speech rights or the right to public ownership of government documents to pander to him.

Subsection numbers routinely change. When referencing a provision in OLD case law it is essential to have access to OLD statutes . . . unless the opinion itself makes liberal use of footnotes with the precise subsections at issue.

If a person takes action based on a false understanding of the law caused by reading an out of date, erroneous, or even outright made-up statute on the web, that's his own damn fault.

Nothing about that noble principle is in conflict with efforts to have accurate sources (and to limit incorrect ones) on the web.

nothing about this prevents efforts to have accurate sources on the web. the state can (and does) publish its own copy regardless of who else publishes what. it's the "limiting incorrect ones" that is the problem. we are talking about a chilling effect on free speech and a stunning violation of public records doctrine.

we are also talking about a perversion of copyright law. the state shouldn't be copyrighting ANYTHING. any document produced by the state belongs to all the people of the state. the state is not in the business of profiting from publication of the law. the state gives away the law for free online and therefore does not suffer lost profits when that material is saved on another website.

we are also talking about the state unfairly authorizing only certain big-business enterprises to reproduce the ORS. how is this different from the Thompson-Westlaw-Findlaw-Lexis machine offering up ORS in their own online databases? how is a person who finds a statute on a Lexis-Nexis search going to be sure it is correct and up to date? How is the state not in any different situation regarding copyright when you can pull up the entire ORS on Findlaw?

No matter how hard you try to argue in favor of LC here, you can't produce a legal argument that passes a rational basis test.

there is a key point missing in this discussion i blogged about this loaded orygun:

***** a large legal information services company publishes (annually or biannually?) an annotated copy of the ORS (which sells for $460) and jeff merkley's legislative council committee has explicitly stated that they will not send a cease and desist letter his way. The cease and desist letter demands that justia and public.resource.org either remove the ORS from their websites, or pay a commercial licencing fee for the right to publish, which costs $30k for two years.

why is jeff merkley's legislative council committee going after the little guys and leaving the big publisher alone?

this is pretty outrageous. i am supporting novick, i don't necessarily think this action reflects negative on merkley (yet...) since it is not clear who directed this action, though it is likely that merkley, as co-chair, set the priorities of the committee to take these sorts of actions. we need to pu the pressure on, this is embarrassing to the state of oregon.

and so the money trail becomes clear...

the big boys pay the state $30,000 to license the ORS. the big boys make money selling annoted hard covers to law libraries, courthouses, law offices, etc. and they make big bucks charging users by the minute to use their web services.

the big boys don't want competition from other providers who can supply the legal community with easy-to-use services for free.

so the big boys flex their $30,000 muscle and ask the LC to send a cease and decist letter against the little guys. sounds kind like a monopoly to me...

when the government isn't involved, this sort of thing falls under anti-trust (or even RICO). but when the government is involved, it's "legitimate enforcement of copyright law."

yes, it's all clear to me now.

Support Steve Novick!

If you find a statute on Joe Bob's Country Law and Hog Reports Blog and think it answers your legal question, you should verify it by checking the official source.

That blog is usually pretty accurate.

Petrichor, I do a lot of paying work for that publishing company -- without which this blog would not exist -- and so out of an abundance of caution, I sanitized your post to avoid naming it.

Besides, I think there is at least one other big commercial outfit that publishes an online version of the ORS, and I suspect that one gets the same treatment as the one you named.

the state shouldn't be copyrighting ANYTHING. any document produced by the state belongs to all the people of the state.

How do you reconcile those two sentences? Issues aside regarding the text of the law being in the public domain (which, by the way, extends beyond the borders of the state), why shouldn't the state avail itself of copyrights springing from its employees' and agents' work to realize the value of the same for the benefit of the people, who have paid for it?

Allan, a copyright holder generally is not required to license works. Copyright holders are generally entitled to forbid publication entirely. That being the case, documents created by government should not be subject to copyright, period.

Even if the State of Oregon has some sort of copyright (which is dubious), it absolutely should *not* be asserting it as to the Oregon Revised Statutes.


I'm with you: the poor presentation and navigability of the offical ORS site is the primary reason to look for third-party resource.

The State ought to be paying one of the third-party providers to repackage the offical inputs into something more GUI friendly.

They also ought to hire a few lawyers and/or retired judges to come up with recommendations on how to make the consumer/tenant/individual rights sections more relevant to Oregonians: much of it is poorly written and frequently misunderstood.

If it were simply displayed more prominently, or (better yet) promulgated to the intended community, it would have greater impact.

So long as the Democrats can maintain their so called hegemony, they might even try to move the balance of power towards the individual, and away from the corporate, interests.

This is what Creative Commons licensing is made for. I'd think nothing is more appropriate than the CC's Attribution-Noncommercial-No Derivative Works license.

The State of Oregon should also remember that ultimately the people are supposed to own this work, while the government merely holds it in trust.

The issue here is the annotations and clarifications provided by the Legislative Counsel.

According to Oregon law, the responsibility for protecting Oregon's laws rests with the Legislative Counsel Committee:

171.275 Oregon Revised Statutes; committee policy; charges. (1) Each biennium, the Legislative Counsel, under the direction of the Legislative Counsel Committee, shall publish and distribute the Oregon Revised Statutes, including an index and annotations.

(2) The Legislative Counsel Committee shall establish policies for the revision, clarification, classification, arrangement, codification, annotation, indexing, printing, binding, publication, copyrighting, sale and distribution of the publications referred to in subsection (1) of this section.

(3) The Legislative Counsel Committee shall establish the charges necessary to recover the costs of publishing the materials sold and distributed under this section. [1981 c.517 §11 (enacted in lieu of 173.150); 2003 c.207 §1]

If you don't like that, have your legislators change the law.

Otherwise, Merkley, Courtney, Brown, Rosenbaum et al. are just doing their jobs.

I'm going to take a wild guess that Mr. Murray's citation of ORS 171.275 and related history above constitutes a "fair use".

If that's the best defense these people have for abusing the openness of public laws in this state, they have made my case.

jack bog, no problem, you gotta put dinner on your table, that company was just the only one specifically cited. anyone can go to loadedorygun for more details.

and along comes jack murray to remind us that if merkley did it, its OK. IOKIYM - It's OK If Your Merkley.

so, the Legislative Counsel, shall publish and distribute the Oregon Revised Statutes, including an index and annotations.

they shall establish policies relating to the publications

they shall establish the charges necessary to recover the costs.

so they are responsible for all of it, but should they choose to act unethically, or to test the limits of the law directly in opposition to the principle of publicly owned information, it is not a big deal because they are following the law--which they set--even while making a mockery of the spirit or the law?

that is a fine circular defense you've constructed there. good luck with that.

When this thread started, I didn't see a justifiable economic interest for the state in enforcing a copyright on ORS. As a result of information gained here, I'm now convinced that there is one. The state's stewardship of its protectable work produt benefits the taxpayers of Oregon, who derive no such benefit from a Minnesota publisher or blogger's publication without compensation. The "free speech" and "public domain" arguments seem to be just a frothy proxy for a background political agenda.

By what authority does a legislative committee go about enforcing the state's ownership in anything? Shouldn't it be the Attorney General's job?

The "free speech" and "public domain" arguments seem to be just a frothy proxy for a background political agenda.

But, then, you seem to see those "frothy proxies" behind any free speech argument made by conservatives.

Fortunately, and purposefully, the First Amendment is non-partisan.

cc, I don't think the First Amendment argument carries you very far. After all, any copyright is an infringement of freedom of expression, yet both rights reside in the Constitution.

That's true, Allan L, but consider the actual language of the US Constitution on the matter:

The Congress shall have power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
It's hard to square this with the founders' intent; this does nothing to promote a science or a useful art. (Although that's true of much IP law these days, frankly.)

I can see wht the legislature made the law quoted above call for fees - they were trying to be frugal - but in this case I don't believe a copyright fight serves the public interest very well. The work product of legislative officials should be easily available to the people as a matter of principle, because as I see it they created the work as a work-for-hire whle (theoretically) working for the people's representatives.

Alan: I think that, where copyright is concerned, that introductory clause is viewed as a statement of purpose and not as a scope limitation. I've never heard of an inquiry in copyright into the utility of the copyrighted material. (Totally different for patents, where the protection provided is much broader. There, utility is a requirement.) I see the point on the policy issue, but it doesn't seem especially compelling to me. It's never been "easy" to get access to the law, and although the web changes many things profoundly, a proliferation of unauthentic versions on the web doesn't seem to me to lower the access threshold very much.

As Lawrence Lessig found out recently, the Supreme Court agrees with you on this. But I think it is still useful to consider the historical context of copyright law and see how this fits into it. As I see it, this fits badly.

It seems the State has two interests in maintaining these copyrights. One is cost recovery, and the other is authenticity of copies.

Personally I think the cost recovery part has little merit. I see why it's there, and I think it is no longer a correct choice. The work being done here is being done by the people's employees and on behalf of all the people of the state, not just for the legistlators and their lawyers. As it stands now easy access to copies of this product is limited to those with the substantial means required to buy a paper copy, or to those willing to slog trough a pretty inconvenient web interface. In practice it's lawyers who can afford it, and lawyers who pay for it. Better that the people at large pay for it and have less limited access.

The other and larger issue is the correctness of copies. No one wants a proliferation of unauthentic versions for sure. But this is one case where the game has really been changed by the internet. Verbatim copies are easy to make and publish, again broadening the access to the law. An open license that allows verbatim copies in a shifted format would protect authenticity as well as a restrictive copyright does, yet allow the data to be presented in a variety of ways as people find it convenient to publish. (Woudn't it be nice if all the references were hotlinks?)

If cost recovery is no longer an issue, then an open license for non-commercial use makes sense. If authenticity can be maintained as well as it is now, then an open license makes sense. And if you look at the license I linked in my first comment in this thread, you'll see an open license that does just that. (It might need a bit of tweaking to explicitly allow format shifting, but it's close.)

Those are good arguments (and I guess these days I don't take a lot of comfort from the company of the Supreme Court). The only real caveat I have is the tendency of web pages to go stale, which goes hand in hand with the Legislature's tendency to change the law every now and again.

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