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Monday, September 29, 2008

Law - More on: "Tech activist takes on governments over 'copyrighted' laws"

Updating this ILB entry from Sept. 26th, two new stories today:

"Who Owns the Law? Arguments May Ensue " is the headline to a NY Times story today by Noam Cohen that contains a number of interesting points. Some quotes:

IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society.

Well, it is still a bit of a head-scratcher. Let me try to explain.

To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.

Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.

“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”

A favorite method of trying, as Ms. Samuelson and other legal scholars explain, is to copyright the accoutrements surrounding the public material. So while the laws and court decisions themselves may be in the public domain, the same is not necessarily true for the organizational system that renders them intelligible or the supporting materials that put them into context. * * *

Into this maze of fuzzy law and competing ownership claims enters Carl Malamud, who for 15 years or so has used the Internet to liberate information that nominally exists in the public domain. He has pulled up federal court decisions, corporate filings to the Securities and Exchange Commission and, in an example of near performance art, the copyright registrations at the United States Copyright Office.

“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.

Currently, safety codes for plumbers are “totally unavailable unless you pay $100 per copy,” he wrote in an e-mail message; a boiler safety code costs $13,000. (For that price, shouldn’t they throw in the boiler?)

As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said. * * *

To avoid legal fights, Mr. Malamud said, he takes the trouble not to scan material packaged within shrink wrap and bearing warnings that whoever breaks the seal agrees not to reuse the material. In those cases, like the American Society of Mechanical Engineers’ Safety Code for Existing Elevators and Escalators, he says, he finds another source without the implied license.

“If you require citizens to know, read and obey the rules, then it is in the public domain,” he said.

Even some critics of the current system say they understand why copyright has infiltrated the basic codes of the government. Peter Martin, a law professor at Cornell who was a pioneer in making legal material available on the Internet, explained the dilemma. A company “will say to some city, all your city council has to do is pump out ordinances, we’ll help you organize it and we’ll get to copyright it,” he said. “That is part of the quid for our quo.”

Professional organizations like the American Bar Association and the American Medical Association stress that they are performing a valuable, and expensive, service, by creating a code to rationalize the way doctors or lawyers behave, and deserve to be compensated. Take away the incentive, and there is no innovation, so the argument goes.

Rick King, executive vice president and chief operations officer of the North American Legal unit of Thomson Reuters, which owns many legal and medical databases, did not necessarily see Mr. Malamud’s cause as a threat. “I do think they are complementary,” he said about public.resource.org and his company’s legal research publishing, “as long as people are respectful of the parts that are copyrighted.”

He stressed that with more and more information being available online, his company’s value-added material would become even more valuable.

“If I am a regulator working for the E.P.A.,” Mr. King said, referring to the Environmental Protection Agency, “do I want to go to Google or a free database, or go to a Web site and see the historical changes in the code so I can understand why a code has changed the way it has?”

"Sebastopol man puts code manuals online" is the headline to a story by Matthew B. Stannard, published Saturday in the San Francisco Chronicle. Some quotes:
"It's very clear in American law that you can't get intellectual property protection for law," said Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology. "Law belongs to everybody."

This year Malamud persuaded the Oregon legislature not to enforce its copyright claim to Oregon Revised Statutes - after he put them online. Now he'd like to see California - and other agencies that claim copyright over public codes and regulations - do the same.

"This stuff has been locked up behind a cash register," Malamud said. "(It's) way too important to just leave it there."

If Malamud is fishing for a lawsuit - something he denies - so far nobody is biting. Officials at the agencies whose codes Malamud has posted all say they are aware of his efforts but have no plans for legal action.

Which doesn't mean those agencies are giving up their copyright - especially if someone republishes the codes for profit, said Linda Brown, deputy director of the California Office of Administrative Law.

"If somebody is going to make commercial use of that, the people of California deserve to benefit," she said.

Brown said Malamud's rhetoric is misleading - many of the codes on his site are already available free online.

The state's administrative law office Web site, for example, allows users to search the California Code of Regulations. Many other state and federal agencies do the same.

But it's not enough, said Malamud. Many of the free codes carry notices banning downloading for commercial use or downloading, printing or more-complicated options. * * *

What's more, said California's Brown, some codes - including the California Code of Regulations - change frequently. Those changes are pushed out to people who purchase official subscriptions, but republishing sites like Malamud's may not be up to date.

Creating and updating the codes that help build safe schools, homes and offices is enormously complicated, said Michael Colopy, spokesman for the International Code Council. And the money from selling codes pays for that process.

"It is ultimately a disservice to the public if in the name of access to so-called free codes the very process that develops and enhances public safety is undermined," Colopy said. "The public is the big loser."

Malamud said he is sympathetic and willing to work with the ICC. But he argued that the ICC must grapple, like many industries, with the way the Internet is disrupting its business model.

"I think there is a lot of ways to keep that going without taking it out on the back of the kid in the pickup truck studying for the plumber's license," he said.

Posted by Marcia Oddi on September 29, 2008 12:08 PM
Posted to General Law Related