Tuesday, May 5, 2020

Carl Malamud Wins (Mostly)

In Supreme Court rules Georgia can’t put the law behind a paywall Timothy B. Lee writes:
A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. The state claimed to own the copyright for the Official Code of Georgia Annotated and sued a nonprofit called Public.Resource.Org for publishing it online. Monday's ruling is not only a victory for the open-government group, it's an important precedent that will help secure the right to publish other legally significant public documents.

"Officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties," wrote Chief Justice John Roberts in an opinion that was joined by four other justices on the nine-member court.
Below the fold, commentary on various reports of the decision, and more.

In Supreme Court Says Georgia's 'Official Code' Is Public Domain -- Including Annotations Mike Masnick is less enthusiastic than Lee:
Focusing on the authorship, rather than the fact that this is part of the law, seems like the wrong path. After all, Section 105 of the Copyright Act says that works created by the federal government are not subject to copyright, but that copyright is allowed for works created by a third party and then assigned to the government (which was the case here). The appeals court decision focused on the fact that "the law" has to be in the public domain. But the Supreme Court decided, instead, to go for a more narrow focus on "authorship."

From there, it twists itself into a bit of a knot to argue that the annotations, despite being done by LexisNexis, were actually authored by the Georgia legislature. It does make clear that works created by legislatures cannot be subject to copyright, which is nice -- but wasn't much in dispute, frankly:
We hold that the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.
There still is some good language about how the public must be able to access the law:
The animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access” to its contents.
But then insists that the mechanism of this is to focus on authorship, rather than on whether or not something is the law. That has the potential to be a problem down the road as others may try to twist this to make it clear that others do the authorship and then assign the copyright to the law.
Note that the contract between Georgia and Lexis-Nexis has some aspects of a work-for-hire, which would assign copyright to Georgia, but the money flows the other way - Lexis-Nexis has to pay Georgia.

Ronald Mann's post at SCOTUSblog, Opinion analysis: Sharply divided bench rejects Georgia’s copyright in annotations of Georgia statutes points to one aspect of the focus on authorship as opposed to law-ness:
In the end then, as Roberts summarizes the majority’s holding, courts should not “examin[e] whether given material carries ‘the force of law,’” but instead should “ask only whether the author of the work is a judge or legislator,” because “whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”
Malamud has already demonstrated that this is extraordinarily unhelpful. The issue is standards such as building codes. As Lydia Depillis wrote in Want to Read the Law? It'll Cost You:
Say you live in Rhode Island and want to upgrade the ancient plumbing in your kitchen. You figure you should be able to save some cash and do it yourself, but want to make sure you're on the up-and-up with all applicable codes and regulations. So you head over to the state’s website to read the plumbing code.

Problem is, the 15-page "code" is actually just a series of modifications to a 156-page volume of standards published by the International Code Council—the 2009 edition of which, according to the introduction to the state regs, “is protected by the copyright that has been issued to the ICC. As a result, the State Building Code is not available in complete form to the public in an electronic format."

Your choice: $89 for a printed copy, or $74 for an e-copy. But why should you have to pay to read laws that you must obey?
Mann also points to one aspect that is unhelpful to Web archiving:
Georgia also “draws a negative inference from” the act’s exclusion from copyright protection of all works prepared by officers or employees of the federal government,” an exclusion that does not extend to the states. That does not suggest to the majority that it should treat all state-created works as copyrightable. Rather, Roberts explains, Congress’ failure to extend that exclusion to the states leaves the states, unlike the federal government, “free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries, tourism offices, and so on.”
Many states not merely assert copyright in non-legislative content, but also intermingle it with material copyright by others, for example stock images.

Masnick points to two encouraging aspects of the decision. First:
Chief Justice Roberts opens his decision by reminding people that copyright is a monopoly right:
The Copyright Act grants potent, decades-long monopoly protection for “original works of authorship.”
That's nice to see since bringing up the "m" word seems to make a lot of copyright maximalists lose their minds.
And second:
There's also this bit of support for the law being freely available, and the fact that betting on fair use is a "roll the dice" situation (!!!).
If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.... Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.... The less bold among us would have to think twice before using official legal works that illuminate the law we are all presumed to know and understand.
That section admitting that the requirement of a trial to resolve fair use being naturally suppressing of free speech is... kind of amazing in its own right, and I imagine it may show up in other cases at some point.
On balance, the good parts of the decision outweigh the bad parts, but the focus on "authorship" leaves a lot of space for states to evade the decision's intent.

And while we're on the subject of government and copyright, The Congressional Research Service (CRS), whose invaluable reports are available here, has issued COVID-19 and Libraries:E-Books and Intellectual Property Issues, a "Legal Sidebar" which starts:
With many states issuing stay-at-home orders, and many public library buildings closed during the COVID-19 pandemic, members of the public looking for reading material have increasingly turned to e-books. Yet even before the pandemic, libraries faced challenges in meeting patron demand for e-books.For example, in November 2019 the Washington Post reported months-long wait times to borrow high-demand e-books from major public libraries.

The legal framework for lending physical books is different than that for e-books. While a library may generally lend a physical copy of a book in any manner it chooses, under current law a library may only lend an e-book in the manner approved by the copyright holder (usually the publisher). Thus, for example, the publisher may limit the length of time during which the library may lend the e-book, the number of times the e-book may be checked out, or both. These limitations may restrict a library’s ability to meet patron demand. This Sidebar explains how copyright law governs e-book lending; describes how the COVID-19 pandemic has affected e-book accessibility; and outlines some possible legal approaches Congress may consider.
It discusses the Internet Archive's National Emergency Library, which attempts to ameliorate the closure of libraries by temporarily lifting the restriction that only one copy of each of their scanned books can be checked out at a time. It ends by suggesting three possible courses of action for Congress:
  1. Do nothing.
  2. Legislate a digital version of the "first sale doctrine".
  3. Legislate "limited copyright immunity for library e-book lending".
My money is on #1!

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