Both Justia and Public.Resource.Org have been at loggerheads with the State of Oregon over their desire to publish the state's complete body of law online, for free. While that sounds noncontroversial—state law even requires the laws to be offered as widely as possible—the state's Legislative Counsel Committee claims copyright over portions of its Revised Statutes. Now, Public.Resource.Org and Justia have rejected a lengthy "Public License" from the state and seek a declaratory ruling from a federal court that reprinting the statutes on their respective websites is fair use.

While the actual text of the law is in the public domain, the Legislative Counsel claims copyright in the "arrangement and subject-matter compilation of the Oregon Revised Statutes, leadlines and numbering for each section, and tables and indexes," says the complaint (PDF). These ancillary materials are so pervasive in the statutes that stripping them out would be unwieldy and would make the laws far harder to read.

Carl Malamud, who heads Public.Resource.Org, has set up a page with the complete background and paper trail. He takes issue with the idea that a basic private "wrapper" can essentially tie up something as important to the public as the laws that govern it.

"We contend that the pasting of a private wrapper on a public domain package in a transparent attempt to protect a revenue stream is against public policy and is against the law. Furthermore, even if such a private wrapper were to be permitted in certain cases and under limited circumstances for clearly creative work by private corporations such as, e.g., the Disney Corporation or Thomson West, the Honorable Legislative Counsel of the Great State of Oregon is such an integral part of the law-making process that in no case may it assert such a copyright."



Competing seals

The complaint points out that other works of arrangement such as "alphabetical listings of names, accompanied by towns and telephone numbers" have been found to lack copyright protection by previous courts. Annotating judicial opinions likewise has not been found deserving of copyright.

The filing simply asks a judge to declare that the proposed use of the laws is legal. Justia and Public.Resource.Org aren't seeking damages, though they do request attorneys' fees in the case. Both groups have previously told the Oregon Legislative Counsel that they intend to publish the material with or without consent by June 2, 2008, a claim that is repeated in the complaint.

Despite all the back and forth on this issue, it's still not clear what the basis of Oregon's objection is. The state publishes its own copy of the statutes on a free and publicly-available website (Malamud has noted in a letter [PDF] to the state that the site does not meet "broadly accepted standards of functionality and validity," and contains 503,482 HTML markup errors).

The state does make money by selling copies of its laws in paper format (only $390 for the 2007 edition in 21 volumes! Perfect for bathroom reading!), and it notes repeatedly that the "organizational scheme" of such publications is copyrighted, so perhaps cash is part of the issue. As the complaint notes, the Legislative Counsel Committee is a "financially self-sufficient agency" that pays its own debts and earns its own money. But the state already offers the laws online, so these new services would seem to offer little competition.

If the concern is accuracy, it's simple enough to have a computer verify that the copies contained on all public sites are identical to the official versions.

After negotiations, the Legislative Counsel sent both groups a letter saying that the original takedown notices were rescinded, but nothing was said about abandoning copyright claims or swearing off future legal action. It looks like a federal judge will now make the final decision about what is and is not allowed when it comes to copyrighting the ancillary bits of state law.

Update: Carl Malamud of Public.Resource.Org notes that the declaratory judgment remains in draft and has yet to be filed with the court (the public can comment on it at the moment). Apparently spurred by the threat of legal action, Oregon has today responded (PDF) to Malamud and Justia by asking them to present their views on the copyright issues in this case at a mid-July meeting of the Legislative Counsel Committee. According to the Committee, it hopes to "consider its copyright policy in light of technological developments and the Internet." Sounds like a positive sign.