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When States Don’t Abide By Court Decisions.

Carl Malamud is the president and founder of Public.Resource.Org which is a group dedicated to “making government information more accessible.”

The site has lots of resources on where to find state laws, government agency rules, contacts for members of government, etc. It is a great resource and is run as a 501(c)(3) nonprofit.

As part of the group’s efforts to make information accessible to the public, Malamud posted the Official Code of Georgia Annotated (OCGA), which are the laws of the State of Georgia. Malamud would do what the average citizen could not (due to costs): he purchased a copy of the OCGA, scanned it and posted it on Public Resource’s site.

In 2013 the State of Georgia notified Public Resource to take down the OCGA files claiming that the OCGA was copyrighted. Public Resource refused, claiming there was no copyright and even if it did, the issue of “fair use” applied. When Malmud refused to remove the files, Georgia sued.

There were several issues. First, copyrights are there to protect the authors of works. In general, as the laws of a state are the works of the people and elected legislators, the law itself cannot be copyrighted. (Just as a seal or logo of a town cannot be copyrighted.)

Yet the OCGA was a little different in that it was annotated, meaning that it had references to case law, other laws, commentary etc. It was not just the laws of the state. Georgia claimed that the annotations themselves were copyrighted.

Secondly, the State of Georgia had authorized LexisNexis as the exclusive distributor of the OCGA. The State was actually selling the OCGA and getting money from LexisNexis to do so. The laws themselves were not available separately – only the annotated version which meant that citizens had to purchase a large set of books in order to know what the laws of the State were.

In 2015, the State of Georgia sued Public Resource and in 2017, District Judge Richard Story ruled that the OCGA was copyrighted.

Malmud did two things, both of which were very smart, in our opinion. First, he announced his intent to appeal the District Court’s ruling. Secondly, he removed the contents of the OCGA from his site while the appeal was going on.

In other words, Malmud and Public Resource were abiding by the letter and spirit of the Court’s decision.

In October, 2018, the Eleventh Circuit overruled the District Court, and ruled that the OCGA was not a work that could be copyrighted saying in part:

Where all three [judges] point in the direction that a work was made in the exercise of sovereign power — which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows — it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The question is a close one — and important considerations of public policy are at stake on either side — but, at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable. (emphasis ours)

You would think that would be the end of it. The State of Georgia may be appealing the 11th Circuit’s ruling but until that time, it would seem that Malmud and Public Resource would be able to purchase the OCGA through Nexis / Lexis and post it.

You would be wrong.

In what can only be seen as a continuation of a legal battle that is over the despicable idea as to whether people in a state should have to pay to see the laws of that state, Malmud had his LexusNexis account suspended and cannot buy the OCGA through the only channel the Georgia Legislature designated to sell it.

On January 2, 2019, Malmud fired a letter off to Richard C. Ruskell, the Legislative Counsel of the General Assembly of the State of Georgia and Anders Ganten, Director of Government Content Acquisition for the RELS Group, which owns NexisLexis

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges. (emphasis ours)

There is no reason as to why Nexis/Lexis won’t sell the OCGA and no reason the State of Georgia won’t address the situation, much less allow the purchase.

We can’t think of a good reason as to why the people of the State of Georgia 1) have to purchase their own laws, 2) why the State of Georgia sees their laws as a revenue stream, and 3) why no one in the government or LexisNexis won’t even talk to Malmud about the issue.

If the Eleventh Circuit had ruled in favor of the State, we’d bet our bottom dollar that Georgia would be demanding not only that the files be removed from the site (which they have been,) but demanding the files be erased from internet caches of websites and any links from search engines to those caches. Instead, the State is saying “we don’t have to abide by the Court’s decision and there is very little to nothing that you can do about it.”

The State should be ashamed of claiming the work-product of things that taxpayers paid for can be somehow “copyrighted.” They should be ashamed of saying “if you want the laws of the State, you have to pay for them.”

The idea that the State sees their laws and annotations as a revenue stream is beyond contemptable.



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6 Responses to “When States Don’t Abide By Court Decisions.”

  1. Thomas Gaume says:

    Well, leave it up to Palm Bay and their big book of ordinances.

    —-

    § 58.03 MANUFACTURE, USE OR DISPLAY OF SEAL OR LOGO.

    The manufacture, use, display, or any other employment of any facsimile or reproduction of the City of Palm Bay seal or City of Palm Bay logo, except for City of Palm Bay officials or employees in the performance of their official duties, without the express approval of the City Manager of the City of Palm Bay, is prohibited.
    (Ord. 2005-19, passed 6-2-05)  Penalty, see § 58.99

    § 58.99 PENALTY.

    Any person or entity who violates any portion of § 58.03 of this
    chapter, is guilty of a second degree misdemeanor, punishable as provided inFla. Stat.  §§ 775.082 and 775.083.
    (Ord. 2005-19, passed 6-2-05)

    What makes this even more of SMDH moment is when you go look up the referenced Florida Statutes.

    —-

    775.0823 Violent offenses committed against law enforcement officers, correctional officers, state attorneys, assistant state attorneys, justices, or judges.
    775.083 Fines.

    —-

    Yet another exercise is paperwork, toothless ordinances, and Government overstepping their bounds and trying to take control of property that is clearly public domain.

    —-

    Government works
    Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries. They may also be in the public domain in other countries as well. The legal scholar Melville Nimmer has written that “it is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work”.

    —-

    Look up Kakistocracy, there you will find the above mentioned seal and logo..

    • AAfterwit says:

      Thomas Gaume,

      Thank you for the comment.

      Surprisingly, this is not as clear cut as one might think.

      Palm Bay’s code is based upon a State ordinance:

      Florida Statute 165.043 Official county or municipal seal.—The governing body of a county or municipality may, by ordinance, designate an official county or municipal seal. The manufacture, use, display, or other employment of any facsimile or reproduction of the county or municipal seal, except by county or municipal officials or employees in the performance of their official duties, without the express approval of the governing body is a second degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083.

      Notice how the wording of the two laws are almost identical.

      This statute came up as a result of people and companies using the seal / logos to 1) make money by the selling of products including those the City and its residents may not want (“Get yer official Palm Bay blow up doll here!) and 2) companies that were using the logos to indicate in mailings and advertisements the product and services were “approved” by the local municipality. Cities had been sued over their alleged “endorsement” of a product or service they had no idea even existed.

      The question is then, “does government have the duty and right to protect its citizens when its / their seals and logos are being used in a nefarious or other manner?”

      Here at Raised on Hoecakes, we have a history with this law as Satellite Beach passed it and then said we were barred from using their seal in what was clearly protect political speech. They backed down after a letter from a lawyer to them, but Cocoa Beach followed the same path. We went to Cocoa Beach and discussed the issue with them.

      During that discussion, people raised several interesting issues. For example, in Cocoa Beach, the city’s logo is reproduced in a huge sign attached to the City Hall. The question that was raised was “if a television station was filming an interview or even ‘B-roll’ footage for their broadcast and filmed the logo on the side of the building, would the City seek to arrest the media?”

      Another question that was raised was many of the members of the City Council and staff wear pins and shirts with the logo on it. If the media filmed or interviewed them, would the media have to get permission from the City before broadcasting the footage? What about filming or a picture a police car? A fire truck?

      We actually offered the City of Cocoa Beach wording that we felt was a balance between the interests of the City / citizens and what essentially “fair use.”

      We gave them this:

      Nothing in this ordinance shall restrict or prevent the fair use of logos including, but not limited to, non-commercial use, commentary, political speech, parody or speech where there is no likelihood of confusion as to whether the use of the logos is sponsored or endorsed by the City. See Lanham Act, 15 U.S. Code Section 1052.

      The Cocoa Beach Commission passed that ordinance with our wording unanimously.

      We thanked the Cocoa Beach Commission for their willingness to listen (they don’t always) and their looking beyond what was being presented to them by the City Staff. (Initially, the Staff and the City Attorney had proposed the language found in FS 165.043 because the Staff and the City Attorney said the City could not afford to copyright the logos and seals. We had to point out that under copyright law, they could not copyright the logos anyway, so what were they trying to accomplish?)

      As we said, it is a tricky subject. We don’t want citizens to be fooled by companies that wrongfully use seals and logos, and at the same time, a City should not be able to stop what is fair use if they could copyright the logos.

      We think the failure is on the part of the Florida Legislature which failed to understand the ramifications of the statute they passed. Secondarily, the failure is on the local governments (including Palm Bay) that passed a law making it against the law what is clearly not against the law. Once again, we see the failure of City Attorneys who go with the wishes of their clients – the Council or Commission – rather than with the law and the people of the municipality / county.

      Thanks again for the comment.

      A. Afterwit.

      • hometown says:

        Bam – We got one right, we’ve got a good city attorney and I was glad to hear the commissioners listened to your inputs before deciding. As you said it’s a tough balance between the rights of free speech and a City’s desire to protect it’s image from being misused. Seems like the CB compromise does a pretty good job of both.

        • AAfterwit says:

          hometown,

          Thanks for the comment.

          You have good representation now, but if you remember, when this all went down, you were represented by Skip Fowler and Marsha Segal-George. It was Segal-George that told the City that copyrighting the seals would be overly expensive. Melissa Byron who presented the agenda item did no research on the issue and took Segal-George’s word for it. After a meeting, our guy was approached by Fowler who told us he was unaware of the Lanham Act and the provision the precluded the City from copyrighting the seals.

          To this day, we believe that incident led to the movement to get rid of the then City Attorneys. (At the very least, it was one of the last straws.)

          We agree that Cocoa Beach eventually got that one right. The question is, what would have happened if we hadn’t shown up? (And we are not patting ourselves on the back.)

          To us, the incident shows that citizens have to vigilant on everything.

          Thanks again.

          A. Afterwit.

  2. Thomas Gaume says:

    Oh, I forgot this referenced Florida Statute:

    775.082 Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.

  3. Lee says:

    Used to live and work in California. State coffees were on line EXCEPT the Title 24, the building codes, however, the ENERGY probably of that IS available.

    Laws and codes to which people are required to adhere should be easily available. I can understand a charge for printed versions, but anyone should be able to fly access the laws on line.

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