Out West, a showdown is under way over open access to "America's Operating System," the law. As we reported last month, the State of Oregon isn't keen on having its Revised Statutes republished in full, for free, by Internet archives like public.resource.org and Justia. The sites got into a kerfuffle with the state over the information and have since refused to take out a "public" license. While Oregon backed down from its initial cease-and-desist notice, the two sides still cannot come to an agreement. Justia and public.resource.org have since retained counsel to deal with the issue, and their lawyer has already made clear to Oregon that his clients will be posting the entirety of the disputed material by June 2.

While you might think a state would want the laws it passes widely disseminated, the reality is that Oregon makes money licensing its statutes to publishers. State laws are not themselves copyrighted, of course, but Oregon claims that all the ancillary material in the Revised Statutes—including section numbers and headings—is copyrighted. Stripping out the public domain law without including the copyrighted bits would be a "pain in the ass," according to public.resource.org's Carl Malamud, who tells Ars that the issue here is much bigger than Oregon. It's a "question of assertion of copyright over cases and codes," and it's a "fundamental issue" that affects access to the law.

In Malamud's view, the extra information in question is just "pasting a private wrapper on a public package" in order to monetize it, but given that the additional information is added by Oregon's Legislative Counsel (a state entity), Malamud doesn't believe that even this claim stands up to scrutiny.

When the debate first flared up, response was quick. Google's William Patry opined that Oregon had gone "wacka wacka huna kuna," which we're pretty sure isn't a compliment. Malamud and his cohorts at Justia got on the phone with Oregon officials, who ended up proposing a "public license." In a letter dated April 30, though, Malamud pointed out that C-SPAN's copyright policy was only 318 words. By contrast, the "public license" offered by Oregon was 2,739 words long and was "incompatible with how public domain data is distributed."

On May 2, the lawyer for both Malamud and Justia informed Oregon that his clients could not accept the license and would be posting the material in question with or without an agreement by June 2.

On his blog, Justia founder Tim Stanley argued that the issue was worth fighting over. "To otherwise permit the State of Oregon or any other governmental body to restrict access to the laws that govern all of us would make a mockery of the legal doctrine that all persons have presumed knowledge of the law," he said in April. "Fortunately, many courts have rightfully declined to recognize such copyright claims asserted by states and municipalities."

When I spoke with Malamud today, he promised that action would be taken soon. Is that a tumbleweed I see blowing across the plains?

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