Cease, Desist & Resist – Oregon’s Copyright Claim on the Oregon Revised Statutes

Hi Friends,

Last week, the State of Oregon Legislative Counsel Committee sent Justia a notice of copyright infringement and demand to cease and desist. In its letter, Dexter Johnson, the Legislative Counsel, asked us to remove a copy of the Oregon Revised Statutes stored on our servers (or pay a licensing fee) by April 30, 2008. The letter claimed copyright on many parts of the Oregon Revised Statutes:

[T]he Committee … claim[s] a copyright in the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables the index and annotations and such other incidents as are work product of the Committee in the compilation and publication of Oregon law.

Now, the letter is more detailed than the copyright claim on the Oregon Revised Statutes website:

The Legislative Counsel Committee claims copyright protection in those parts of Oregon Revised Statutes that are legally subject to copyright protection.

My take after reading the above claim on their website was that the State of Oregon was claiming a copyright to the annotation section and not the code itself. Accordingly, our copy of the Oregon Revised Statutes did not include the annotations. Needless to say Oregon’s copyright claim on the code itself was a surprise (understatement).

As requested in the letter, I called Oregon’s Sean Brennan the same Friday and Sean explained their position, reinforced the copyright claims in Dexter Johnson’s letter and said he would get us some licensing information (which is $30,000 for 2 years). He also said that Oregon had been talking with other states about how to raise licensing revenue for their codes. That was somewhat disturbing, as we want states to open up their public laws and regulations.

After the call with Sean, I talked with and sent a copy of the letter to Carl Malamud, who being a former Oregon fire fighter, has a special affection for the state of Oregon. Carl checked out the site, and wrote some letters to Dexter Johnson seeking clarification of their copyright claims.

Thursday, we (Carl Malamud, Nolo’s Stephen Elias and I) had a pleasant and constructive conversation with Dexter Johnson and his team. The Oregon folks are going to think through some different options. If Oregon comes up with a solution that promotes free and open access to the laws, then we will likely avoid litigation. If not, then we will likely have to ask the courts to determine whether state governments can prohibit others from downloading, reproducing or distributing the laws. I hope that given Oregon’s public interest focus, the State will adopt an approach that promotes open access to laws instead of one that maximizes licensing fees. We should know more next week.

Some prominent legal bloggers have commented on Oregon’s copyright claims. See Professor Tim Armstrong’s post “Can States Copyright Their Statutes?” on Info/Law and William Patry’s post “Oregon goes wacka wacka huna kuna” on the The Patry Copyright Blog and Sam Bayard’s post “Oregon Claims Copyright in Its Statutes — Well, Sort Of” on the Citizen Media Law Project Blog. We agree that public policy demands that state laws remain in the public domain. 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. Fortunately, many courts have rightfully declined to recognize such copyright claims asserted by states and municipalities.

Peace,

Tim



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* For those interested, we are working with folks from Public.Resource.Org, Cornell’s Legal Information Institute, AltLaw, EFF, Creative Commons, Stanford & Cal, FastCase, as well as many other law schools, commercial organizations, courts, and government agencies on compiling a large archive of law that will be continuously updated and freely shared.
Part of that is just getting the raw law, which includes cases, codes, and regulations. As we (quickly) move forward though, we will also have shared annotations and shared publishing tools. We will then want to have copies of the law along with secondary materials on thousands of servers. In addition to providing free access to all at many online locations, we want to provide the opportunity for each government institution, court, law school, nonprofit, company, and blogger to have their very own copy of the full corpus, as well as an easy way to keep it updated. It won’t be easy, but it is doable. And it helps that we are working with folks from the government. Hopefully, we will soon be able to work with and include the State of Oregon. :)

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