Dangerous Precedent: State Copyrights Its Laws to Keep Citizens from Free Access

By Jack Burns | The Free Thought Project

Georgia — Carl Malamud is a law advocate, but not the kind who represents plaintiffs or defendants in a court of law. No, Malamud is a proponent for the free access to one’s ability to read the law. Sounds simple right? Unless you live in Georgia, that is.

Georgia has copyrighted its state law also known as the Official Code of Georgia Annotated (OCGA). The OCGA IS THE LAW in the State of Georgia. In fact, when bills are introduced in the Georgia State legislature, they seek to amend the OCGA. Sure! If you want to read Georgia law statutes, you can visit the State’s website (www.legis.ga.gov), and read a free copy of the abbreviated law, but you won’t be able to read the annotations which correspond with each state statute. And those annotations contain the court decisions and precedents which help to write the law.

In other words, the free copy isn’t the real deal and it isn’t complete enough for Malamud who believes everyone has a right to know the laws that govern one’s life.

Malamud recently picked a fight with the State of Georgia over its access to state law. He lost. But he’s appealing. Here’s how it went down. He ordered the complete copy of the OCGA from its contracted publisher, LexisNexis.

As Arstechnia.com reports, Open-records activist Carl Malamud bought a hard copy, and it cost him $1,207.02 after shipping and taxes. A copy on CD was $1,259.41. The “good” news for Georgia residents is that they’ll only have to pay $385.94 to buy a printed set from LexisNexis.

After obtaining the copy, he scanned it and sent it to various Georgia State legislators. After placing the scanned copies on a few USB drives, he mailed those copies to the “Georgia speaker of the House, David Ralson, and the state’s legislative counsel, as well as other prominent Georgia lawyers and policymakers,” and he uploaded the text to his website as well (Public.Resource.Org).

He also enclosed a letter stating the law cannot be copyrighted and wrote the following, “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.” It didn’t take long for the lawmakers to respond, and Malamud received a Cease and Desist letter from GA State counsel.

Your unlawful copying Of The Official Code Of georgia Annotated Infringes on the exclusive copyright of the state of Georgia. Accordingly, you are hereby notified to CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT

The State of Georgia gave him 10 days to destroy all the digital copies of the OCGA in his possession and remove those files from his website on the Internet. The two parties went to court over the matter and the judge ruled against the open records advocate. ARS wrote:

Now, the case has concluded with US District Judge Richard Story having published an opinion (PDF) that sides with the state of Georgia. The judge disagreed with Malamud’s argument that the OCGA can’t be copyrighted and also said Malamud’s copying of the laws is not fair use. “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection,” writes Story. “Defendant admits that annotations in an unofficial code would be copyrightable.”

But according to the Copyright Law, people are allowed to copy material to which they may not have reasonable access. But Judge Story did not allow Public.Resource.Org to use the fair use provisions of the law to provide a copy online to citizens.

“In the fair use analysis, the judge treated Public.Resource.Org harshly. Story made the extraordinary finding that Public.Resource.Org is engaged in ‘commercial’ copying despite being a nonprofit, stating that the organization ‘profits’ by ‘the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted OCGA annotations, and its use was neither nonprofit nor educational,’” writes ARS.

“The judge also found that the annotations ‘are original works entitled to broad copyright protection,’ and blasted Public.Resource.Org for having ‘misappropriated every single word of every annotation using a bulk industrial electronic scanner,’” the report concluded.

Malamud says he isn’t going to give up and will be appealing the judge’s ruling. He says the free copy the sate provides doesn’t hold up in court. “Any lawyer would ignore this publication and any of its components at his or her peril,” he wrote adding, “No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law… Our publication of the Official Code of Georgia Annotated should be encouraged, not threatened.”

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