Nations are, or at least should be, governed by laws and people are expected to follow those laws. That assumes that people have free access to the laws so that they know what is expected of them. But there arose a weird situation in the US where some laws were copyrighted and others who had to follow the laws were expected to pay to find out what the laws were that they were bound by.
How could this happen? It originated in Georgia, a state notorious for its utterly reactionary attitudes. What they did was declare that the annotations to its laws could be copyrighted because they were created by a private party. Cory Doctorow explains what this is all about.
The principal that the law must be both readable and writable is as old as the idea of the rule of law itself, dating back to the Magna Carta and beyond. But in recent years, governments have begun to integrate commercially developed standards into their laws as their official safety code (“The plumbing code of East Dingleberry County shall be version xyz of the Unified Plumbing Standards Body’s Master Code”), and thereafter, people who want to read the law — to make sure they’re obeying it, to investigate whether someone else has violated it — has to pay (often thousands of dollars) to get a copy of their own laws.
Carl Malamud is a rogue archivist with the group known as Public.Resource.Org (PRO) that decided to make the laws freely available.
In an effort to make Georgia’s official laws easily accessible, Malamud had bought a hard copy of the OCGA, paying more than $1,200 for it. (The 11th Circuit opinion reports that a copy currently costs $404, although it isn’t clear if that price applies to non-residents.) Malamud then scanned the books, and sent each Georgia legislator a USB stick with two full copies—one of the scanned OCGA, and another encoded in XML format.
“Access to the law is a fundamental aspect of our system of democracy, an essential element of due process, equal protection, and access to justice,” wrote Malamud in the letter he included in the package.
One would think that publishing and distributing the very laws passed by Georgia lawmakers might be viewed as a common-sense public good. After all, these are the rules Georgia residents are supposed to follow. But when PRO distributed the OCGA online and on USB drives, Georgia’s Code Revision Commission actually sued for copyright infringement. The commission, which collects royalties from sales of electronic copies of the OCGA, claimed that only its chosen publisher, LexisNexis, had the right to distribute copies.
The state of Georgia sued PRO in federal court and a lower court judge sided with the state. But in October 2018, the 11th Circuit Court of Appeals unanimously overturned the district judge with an emphatic opinion that the law must be free because laws are acts of sovereign power and since people are the source of that power, the laws promulgated in their name cannot be copyrighted. Here are parts of the opinion.
Today, we are presented with the question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, may be copyrighted by the State of Georgia. Answering this question means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA.
The question is a close one — and important considerations of public policy are at stake on either side — but, at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.
As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable. Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use.
This attempt by Georgia is yet another example of how legislatures are bought by private entities and then seek to enrich each other at the public’s expense.
Michael Sternberg says
The article further notes:
This related action covers building and plumbing codes, also highly relevant for residents. I hope the action will ultimately apply to local laws as well.
The local codes of my municipality (in IL) are also formulated by referring to standards like the “International” Building Code, with local modifications added. The modifications are published by the municipality and the referred code is available already for “free” inspection from a commercial publisher that appears to specialize in such services.
I’m sure municipalities (and thus ultimately the residents) do pay a fee for use and access. Developing and vetting safety standards is not cheap, and they do benefit residents by protecting them to some degree from unsavory construction practices, so I suppose such fees are not anathema as such, as long as they are within reason.
As I understand it, most building and safety codes were started by insurance companies. Who wrote them because they saved money (as well as lives, but we know which is more important), if municipalities adopted them. After all, if you’ve broken the law when re-wiring your home, you’ve also voided your fire insurance policy. If a contractor has broken the law when re-wiring your home, the insurance company can sue the contractor for the cost of the damages.
Since there is a real, tangible, monetary benefit to municipalities and insurance companies for people to know the building and safety codes, you would think that the codes would be publicly available free of charge. But over the years I’ve purchased my own copies of various fire codes, as they were revised. The township can purchase them with tax dollars, and as a township official I could probably get my money reimbursed, but since I keep them in my library and not at the township hall I figure I should pay for them myself.
It’s a nice little scam, selling information which is required by law to follow, and I applaud the idea that someone is challenging it.
Michael Sternberg says
@flex: Interesting tidbit – I had not yet considered how these codes came about. It totally makes sense for insurers to push for them. Arguably, in this case their interests and those of the home owner are aligned – for the most part at least, though in the end the owner does have to pay the insurance company for the policy and the contractor for the design, materials, and work to be compliant to those standards, in exchange for the hopefully increased safety level.
For plumbing, code compliance clearly affects aspects of public health at large, e.g. through rules for spouts to prevent contamination back into the upstream public water supply.
Therefore, I will argue that code publication is on the whole a reasonable area to do business in.
As far as the publications (products) are concerned, there are undoubtedly costs for preparing the media, be they printed (and possibly bound) or available online. A typical home owner does not need a printed copy, so I’d say it’s reasonable to charge a nominal cost for one(*), as long as there is also one in the town library, and online access is provided to residents at no charge.
(*) Even in the world of open source software, charging a nominal fee for a distribution medium is allowed. (GPL)
FWIW, the National Electric Code (which is adopted as is by most local governments, and with modifications by all but a few cities), is published by the National Fire Protection Association (NFPA), a private trade association.
In NY, at least, the actual inspections are mostly performed by another private entity: the New York Board of Fire Underwriters. (Some places, such as New York City, have their own codes and their own inspectors.) So the only public involvement is when the relevant legislative body contracts with the private entity.
Michael Sternberg says
Hmm, in that arrangement, are there safeguards or, for that matter, stories about corruption or abuse?
Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says
Oh, noodles, yes! There are many stories of falsified inspections, in NY and elsewhere.
John Morales says
Principle, not principal.
Well, to purchase a copy of the NFPA 101 Codebook is $108, in bound, ebook or PDF versions. The NFPA 101 Handbook, which goes into more detail than the codebook, is $203, for your choice of bound, ebook or PDF.
A new edition comes out every year, and many municipalities refer to “the latest edition” rather than a particular year in their ordinances. The upshot is that if you are interested in knowing the laws surrounding fire codes, you need to give about $100/year to a trade organization to do so. And NFPA offers about 400 standard, guides, and practices in their catalog. Ranging from about $40 to $200.
That being said, NFPA is one of a number of organizations which works very hard to improve the health and safety of society. NFPA, in fact, uses a lot of the money it makes from these products to further study, test, promote and educate their members for the general benefit of society. Further, I do not think that the prices they charge are unreasonable for specialist books. And maybe it is better that a specialist organization like the NFPA,which answers only to their own members who are interested in the same topics and outcomes, not be run by government.
However, when a government takes the standards recommended by a private organization, and gives them the force of law, those standards should be easily found by the individuals under the jurisdiction of that government. And the private organization should be adequately compensated/funded by the government who took this action to cover any loss of income created by making their publications into legislation.