
If you publish Georgia's state laws, you'll get sued for copyright and lose - chha
https://arstechnica.com/tech-policy/2017/03/public-records-activist-violated-copyright-by-publishing-georgia-legal-code-online/
======
flyaway
> [the judge] made the extraordinary finding that Public.Resource.Org is
> engaged in "commercial" copying despite being a nonprofit, stating that the
> organization "profits" by "the attention, recognition, and contributions it
> receives in association with its copying and distributing the copyrighted
> OCGA annotations, and its use was neither nonprofit nor educational."

I know legal definitions might not always mesh with lay definitions, but is
this a standard interpretation of "commercial?" It makes sense if you factor
in that the grants public.resource.org receives (a few 100k a year) are
directly related to their presentation of information, but the quoted passage
seems a bit all-encompassing.

~~~
MaxfordAndSons
This struck me as the most outrageous aspect of the story.

I think having a 3rd party host laws behind a paywall is a terrible idea in
terms of the public good, but I can at least see that the cost based argument
behind it is coherent.

But the judge finding Malmud to be engaged in "commercial" activity and
"profiting" without profiting is some Orwellian bs and seems to me to be belie
a personal stake in this decision. After all, judges in Georgia have no
incentive to see defense lawyers get better/freer access to the annotated case
law (and the state prosecutors surely get it for free anyway). I hope Malmud
succeeds in appealing.

~~~
Erik816
Can you spell out why judges don't have an incentive for defense lawyers to
have better access to the law? When I was clerking for a judge, my main
complaint was that the legal briefs were not well written or researched and I
basically had to do it myself. Informed lawyers make it easier on the judge
and his staff.

~~~
MaxfordAndSons
I'm making the realpolitik assumption that many if not most judges, especially
elected ones at the county level, are not purely impartial and will tend to
side with the prosecution all other things being equal.

It's not that I think all judges and prosecutors are evil authoritarians, it's
just that there are a bunch of externalities at play:

\- If they are elected, they'll want to be seen as pro law and order

\- They probably know and work more closely with a smaller set of prosecutors
than defense lawyers, and could develop interpersonal biases favoring them

\- Related to above, far more judges are former prosecutors or corporate
lawyers than defense or public interest lawyers

\- And there's the general pessimism/dislike towards (accused and actual)
lawbreakers that many on the inside of the judicial system are prone to
develop after decades of dealing mostly with that segment of the population

Not to discount your experience as a clerk, but those were your complaints,
not the judges you worked for, no? Do any of my points above accord with your
experience, or am I totally off base?

~~~
Erik816
I think some of those factors are relevant, others less so. For example, in
most jurisdictions judges are probably seeing the same defense lawyers just as
much as they are seeing the same prosecutors. Also, whether it is beneficial
to be "tough on crime" will depend on the jurisdiction. And then of course you
have Federal Judges, who are appointed for life and thus not subject to that
factor. I clerked for a Federal Judge in San Francisco, and he was very
liberal. He thought through each case carefully and definitely wanted to know
all of the relevant law, whether that came from the parties or from my own
research.

But, even if all of those factors are in play, the most conservative, "tough
on crime" judge sure as hell better care more about the rule of law than they
do about an outcome in any one particular case. They need both parties to
accurately represent what the law is so they can make correct decisions, even
when those decisions are sometimes judgement calls that might more often go
for the defense or the prosecution depending on the particular judge.
Realpolitik should not infringe on respect for the rule of law, and to the
extent it has that is a serious problem. I understand being cynical, but if
that is how intelligent people view our judicial system working, then we are
screwed as a country.

------
joshuaheard
The text of the Georgia law is not copyrightable, and the article states this.
The issue is with the annotations, which are basically links to related
resources. These are made at great effort and expense by Lexis/Nexis, a
private company. These annotations are copyrightable. The mistake is Georgia
making the annotated version of its codes the "official" version.

~~~
wnissen
Except every bill in the legislature is called "An Act to amend the Official
Code of Georgia Annotated." It's not a mistake, the official version is the
annotated version. There's no daylight between the mythical "unannotated"
version and the annotated one.

~~~
jcranmer
Very likely, the annotations have no controlling legal effect. The difference
between unofficial and official versions of the text largely relies on which
version will control the interpretation if there is a copying error (e.g., one
says "remuneration" and one says "enumeration"). I suspect Georgia made the
annotated code official on the basis that it's the copy that everyone already
has.

Stripping out the annotations and publishing that should be completely kosher
for copyright and would still give the controlling version of the law
(assuming no copying errors were made, of course).

~~~
khedoros1
A law gets passed. Years later, a court case comes up about it that changes
the way that the law is usually interpreted. There's nothing in the law itself
that links those two occurrences, but the legal case has essentially clarified
and/or rewritten the original law. The annotations would link those. Sure, you
could read through both parts of the law (the codes and the court cases), and
presumably that's what Lexisnexis did, but it doesn't seem like the
unannotated state law would be practically useful, because it won't
transparently reflect what the actual controlling version of the law is.

~~~
jcranmer
The same is true even when the official version of the law is unannotated. The
annotations themselves have no legal bearing, but they are immensely useful
for tracking down court cases and (presumably) the legislative sources and
discussions about the law to divine legislative intent. That's why lawyers
have annotated copies of law on their shelves instead of unannotated ones,
even if the annotated text isn't technically the controlling copy.

------
mabbo
This is how democracy ends. You can go to jail for committing crimes you
didn't know were against the law, but you can't know what the laws are unless
you pay nearly a month's wages at minimum wage.

~~~
gremlinsinc
If America were a democracy, there's a big difference between Republic and
Democracy

~~~
throwaway2048
I see these comments without fail whenever anybody mentions the term
democracy. Everybody knows what is meant by the term, your pedantry is neither
insightful, nor interesting, its just distracting, pointless noise.

Please stop.

~~~
aanm1988
It's also incorrect. A democracy and a republic are not mutually exclusive.

------
NoGravitas
Look, a correct use of HTTP status code 451:
[https://law.resource.org/pub/us/code/ga/georgia.scan.2013/go...](https://law.resource.org/pub/us/code/ga/georgia.scan.2013/gov.law.ga.code.01.2013.pdf)

~~~
JimmyM
I see 403 in Chrome DevTools, though.

~~~
Freak_NL
For compatibility reasons perhaps? I would expect evergreen browsers such as
Firefox and Chrome to handle a proper HTTP 451 without issues though.

~~~
TazeTSchnitzel
Any browser should. Any 4xx HTTP status code is an error.

------
LambdaComplex
As the saying goes, "ignorance of the law is no excuse." Seems like you could
argue that's incredibly unfair (classist, maybe?) in this case.

Then again, you could probably make a good argument that it's unfair even if
all the laws are freely available.

------
bighi
And here I am, again and again being reminded how the US can be so backwards
in some issues here and there.

Not making THEIR OWN LAWS in its entirety available for free for every
citizen? What the hell is this?

~~~
ivraatiems
It's important to note that Georgia is one state out of fifty; most states
don't do this and many have the entire body of their laws available online
from the official source, not a third-party provider (And federal law
certainly is as well.)

What is fair to say is that the patchwork nature of America's state/federal
system divide makes these kinds of gross inconsistencies happen more often
than they maybe should, and it'd be fair to criticize Georgia in particular
for letting/encouraging this to happen. But it's not a fair critique of the
whole country, and you shouldn't add it to your mental reference of "ways the
US is effed up" except to the extent that "some states do bad stuff" is
already on there.

Also, the authorized publisher, LexisNexis, makes the entire code available
online for free here.[1]

[1][http://www.lexisnexis.com/hottopics/gacode/Default.asp](http://www.lexisnexis.com/hottopics/gacode/Default.asp)

~~~
YCode
Someone else mentioned the version made available to the public is not the
annotated version, and apparently the annotations are considered as official
parts of the law.

This I think was the sticking point for the article.

------
chha
One would think that making laws and regulations easily accessible would be a
priority for lawmakers. Is this issue exclusive to Georgia, or are there other
states or nations with similar restrictions?

~~~
AdmiralAsshat
> One would think that making laws and regulations easily accessible would be
> a priority for lawmakers.

Not really. It continues the trend towards making poverty a crime.

~~~
M_Grey
How is that a trend, and not just the reality this country was _founded_ on?
How many of the original people here were either indentured, or just enslaved?
We just keep shuffling the verbiage and the optics every few decades while
refining the overall system. Slavery in prisons, rotating jail terms for
people who can't pay fines for arbitrary crap, no education, no hope, and no
voice.

~~~
talmand
I wouldn't say the country was "founded" on such things. Yes, they were
interwoven into the fabric of the country at the time; but the country was
also created in a way that opened the door to remove those things.

As for your last sentence; that's the inevitable outcome of almost all
civilizations which is why revolutions happen at a somewhat steady rate.

~~~
M_Grey
It was _literally_ founded on those things, in the sense that the original
inhabitants were about 50% indentured and they _built_ the damned place.
Saying that the US wasn't founded on these realities is like saying the AU
wasn't founded as a prison colony.

~~~
narrowrail
As someone who is part Cherokee (on the Dawes' Rolls), what do you mean by
'original inhabitants'?

~~~
M_Grey
In context, what do you think? Did your people found the US, or practice
indentured servitude and slavery? As I understand it you were part of a very
different and much older nation that predated the current one. Again, as I
understand the people I'm describing came by and decided to take it from you,
founding a new one its place. I'm not endorsing that, and my ancestry is
utterly unrelated to either group's history.

~~~
talmand
Some Native Americans did, in fact, have and sold slaves.

------
vqc
This is a problem for many of the municipalities in the United States. I'm not
familiar with the history of how this ended up happening for Georgia, but for
municipalities the cause is often the economics of codifying and publishing
the official code.

Assembling the laws into a usable code is extremely labor intensive. Someone
has to figure out where the new law fits into the old code and copy and paste
as necessary. Governments often outsource the work to a third party vendor in
order to free up internal human and monetary resources. The end effect is that
the codifier controls the code.

There are all kinds of downstream effects. For one, computer-readable formats
of the law are nonexistent. This also means that there is a huge barrier to
creating interesting new technologies on top of the law.

I'm the cofounder at Open Law Library
([http://www.openlawlib.org](http://www.openlawlib.org)), a non-profit that is
trying to fix this problem by introducing technology at all stages of the law
making process. We're working with Washington D.C. right now, and you can find
a glimpse into the future at
[https://beta.code.dccouncil.us/dc/council/code/](https://beta.code.dccouncil.us/dc/council/code/)
(bulk downloads available at the link at the bottom).

~~~
cowardlydragon
Oh, I'm sorry, is the poor burden of publishing the laws of a government too
hard for the big bad government to possibly do or fund?

Of course the solution is to make it copyrighted / restricted / owned by a
third party corporation.

What? Simplify laws or properly fund the ancillary tasks entailed in changing
laws? Blasphemy.

This is corruption, nothing else.

------
mikekchar
How does case law work in the US? Must these annotations be used in
interpreting the law, or is it merely an indication of how the law has been
interpreted previously? To me, this is the crucial point. If the judge is
forced to use the annotations in interpreting the law, then it seems clear
that it is part of the law. If it is not, then I can completely understand how
it is covered by copyright.

I suppose the other question is if they intend (or are able) to appeal. It
sounds like something that could potentially make it up to the supreme court
if it is not already clear.

~~~
MaxfordAndSons
IANAL but it's my understanding that, for low court cases, it's not that a
judge is forced to abide by the case law precedents so much as that they're
overwhelmingly likely to, so in practice the annotations are probably
essential reading for anticipating how a case will play out. And the
unannotated law are probably akin to a formal tech spec - not very useful to
anyone except the primary implementor, and especially not to laypeople trying
to learn the law or self defend.

See
[https://en.wikipedia.org/wiki/Precedent#United_States_legal_...](https://en.wikipedia.org/wiki/Precedent#United_States_legal_system)

------
hilbert42
This is damn disgraceful (and that's about as respectable a comment I can make
about it). The same atrocious behavior happens in Britain and commonwealth
countries with Crown Copyright.

For the life of me, why do we put up with this nonsense? We ought to be
rioting in the streets over it until fixed.

(It's little wonder our democracies are in such big trouble when so few of the
citizenry actually care about atrocities committed against democracy by 'The
State'.)

------
gersh
Can a defense attorney in Georgia argue their client couldn't obey the law
because they couldn't afford to know the law?

~~~
77pt77
They can argue all they want, but the client will still lose if that is the
only point the defence has.

~~~
soundwave106
Georgia does have a public records law
([http://legal.gatech.edu/sites/default/files/images/186385699...](http://legal.gatech.edu/sites/default/files/images/186385699r1.pdf)).
It would be interesting to see how the concept of annotations hidden behind a
LexisNexis paywall meshes with open records laws here and elsewhere. At casual
glance, the notions don't seem to jive very well _if_ (as seems to be implied
in articles) the annotations are not just private analysis, but are used as
the basis of public law itself.

(Note, in Googling, I see this issue has been brought up in at least one legal
blog -- [https://blog.law.cornell.edu/voxpop/2011/07/15/tear-down-
thi...](https://blog.law.cornell.edu/voxpop/2011/07/15/tear-down-this-
paywall/) \-- and apparently is a problem in not just Georgia.)

~~~
dzdt
The defendant here got their initial copy of the law by such an open records
request! See the mention of $1207.02 in the first paragraph, that amount being
the copying fee. The state here is insisting he cannot distribute further
copies. Anyone else can request a copy from the state via open records law,
and again pay the "nominal" copying fee (or pay a smaller fee to Lexus-Nexus
for access). What you cannot do is get a copy for free, or make a copy for
anyone else if you paid for one!

------
jcizzle
Here's the full, freely available state of Georgia code:
[http://www.legis.ga.gov/en-US/default.aspx](http://www.legis.ga.gov/en-
US/default.aspx).

It seems like some folks may not like that a private company does the hosting
or that they have exclusive rights to its reproduction. You could consider
some reasons this might be the case that are reasonable, like the cost of
maintaining it is actually cheaper by having a company who has the appropriate
resources and infrastructure to support it, it's probably a challenge/costly
to hire an internal team to maintain it at a high enough quality level, the
hosting company made a deal with the government to reduce maintenance and
hosting costs by having exclusive hosting/reproduction rights. These are all
pretty reasonable things to happen,given that the source text is still freely
available to anyone. I think anyone who has an argument against this is
probably looking for a reason to get upset at what they perceive to be
unfairness by "the other team", and won't be convinced otherwise. Such is
life, oh well.

~~~
ivraatiems
I think it is completely reasonable to take the position that the law should
be freely accessible to all, and also the process of providing it should not
be in the hands of a private entity, or if it must be, that said entity cannot
do things like be the _exclusive_ provider, or charge egregiously for things
like copies in a reasonable medium (e. g. paper or CD).

It's not a "team" thing, and I reject wholly the implication that anyone
opposed to this is just trying to score political points for their "team."
Perhaps people twisting the narrative to "they won't let anyone read the
laws!" are indeed politically motivated, but that's not what you or I are
discussing here -- and even so, you need to assume good faith if you want a
discussion.

While it is reasonable for LexisNexis to be the _official_ provider, it is not
reasonable for them to abuse this privilege by charging silly amounts for
certain kinds of access, and it is not reasonable for the state to sue to
prevent others from distributing copies of what should by all rights be public
domain and fully accessible material. Those problems are what's at issue here,
not whether or not the state can hire a DB administrator.

~~~
jcizzle
But it is freely available, I included the link.

~~~
dsp1234
freely available, if you agree to a non-government terms of service which:

1.) gives them right to force you to remove links to the content (section 6.b)

2.) gives them the right to advertise while showing you the law (section 8)

3.) does not require the provider to have accurate text, or be free from
malware (section 11)

4.) requires indemnification (section 18)

5.) requires that the jurisdiction be New York (section 22)

6.) terms can change at any time, for any reason, without notice (section 26)

7.) cannot be used for commercial purposes (section 2.1)

8.) nor make a copy (section 2.1)

It doesn't cost any money to access it online, but the limitations on actually
using are very real.

Want to provide a link to it via a blog to educate your local neighborhood?
Want to know that the official law is free from errors? Want to use the law,
but hold the provider accountable if the information is grossly incorrect?
Want to sue the provider in Georgia since that's the official law? Want to
know that the terms of service stay consistent from day to day? Want to use
the law to help your business succeed? Want to provide a copy of the law to
others so that they can educate themselves?

All of those items are restricted in some way by these terms of service, which
are required before access to the law is allowed.

------
Roboprog
Yeah, some days I think the US civil war was a mistake, and the south should
have just become a separate country. Sort of a "Mexico North", or something.

With apologies to otherwise intelligent people that have to live in that hell
hole...

~~~
licyeus
The problem isn't exclusive to Georgia (or the South). The State of Oregon
also filed suit (later dismissed, IIRC) against Malamud for republishing their
laws. And most progressive cities publish their official code through 3rd
parties with restrictive copyright attached.

This problem exists for _all_ of America.

~~~
Roboprog
Oh. Well that's just great, then :-)

------
hrehhf
Has there been any attempts by anyone to publish these laws via Bittorrent or
ipfs?

Not that I am condoning it, but I'm curious if it has been attempted. I
searched but did not find anything.

------
Mendenhall
It appears it is not about publishing the "law" but publishing the annotations
written about the law that was the issue.

~~~
Jtsummers
But complicated by the fact that those annotations are considered official
parts of the law. If it were standard legal commentary, there'd be no issue.
But the state has made those part of the law and (effectively) barred viewing
them without paying a steep (for the average person) price. So the only _free_
portion to view is a subset of the current legal code.

------
cmurf
Long live the Confederacy! That's all this is, aristocrats who believe in pay
to play. There is no right to be part of civilized society, you must be
useful, in which case you can pay to play. If you're not useful you can wither
and die.

They lost the war, so now it's this neo-feudal free market applied to
everything. The democratic free marketers should be bothered by this because
they're going to take your system to its natural conclusion: the gangs of New
York.

Voting is also becoming pay to play. You must pay $$ for a government issued
photo ID that proves you're a citizen if you want to vote. And this can
effectively be any amount of money, established by the necessary cost of
production, using patented, proprietary technology owned by a corporation.

It's corporatocracy, kakistocracy, plutocracy, aristocracy - all in one.

------
csneeky
Not debating that Georgia should make it easier for folks to do what they want
with the copy they publish for free but...

What's fair is that LexisNexis be compensated for the value it has added to
that Law (e.g., the "annotations"/links). They did the work. It is up to them
how to share it. And sharing for free isn't always a viable business.

Note that there is nothing to stop Public.Resource.Org or anyone else from
adding their own metadata on top of that Law and publishing it. But if it was
done by LexisNexis and licenced by the state of Georgia of course they will
come after someone that tries to publish the Law + The Annotations. And they
would be right to in a capitalist society (which is where we all live and how
we thrive).

If Georgia can still come after someone else for annotating the Law themselves
(original work, not a copy of the work LexisNexis did) and sharing it how they
want then I would agree there is some kind of problem there. But NOT the
problem implied by the article headline (which is a little clickbaity IMHO).

~~~
roderickm
Judge Story "went on to acknowledge the Georgia situation is 'an unusual case
because most official codes are not annotated and most annotated codes are not
official.' Despite the fact the OCGA is official law, the judge said its
annotations are entitled to copyright. The Georgia General Assembly has made
clear 'that the OCGA contains both law and commentary,' Story wrote, and the
two are distinguishable."

Removing commentary or replacing with original commentary would abridge the
official code.

If LexisNexis should be compensated for the value they added, then the state
should pay them for that value, just as they pay the legislators to write the
law. The resulting code should be freely available to every citizen bound by
it.

~~~
csneeky
Could not agree more. I think this is a great point and I hope Georgia does
what it can to renegotiate whatever deal it made to this end (making it all
clear and free) when it gets the chance. If that is indeed the problem here.

