
Sued for copyright infringement for putting legal materials online - pseudolus
https://www.nytimes.com/2019/05/13/us/politics/georgia-official-code-copyright.html
======
cs702
The Republic of Georgia claims that the legal code establishing the rights and
obligations of its citizens (including annotations commissioned and approved
by the state) should not be freely available to its citizens or anyone else,
because it is copyrighted by the state.

According to the article, 20 other states around the world are making similar
copyright claims.

The written laws of a state (along with annotations commissioned by the state)
are, in effect, the source code for running the state.

Citizens _must_ behave as specified by this code. Otherwise they are fined,
incarcerated, or worse.

Shouldn't the code that controls people's lives be free, open-source?

~~~
stupidcar
The text of the laws themselves _are_ open-source. It's the annotations that
are the issue and this is, at least, an area where there is a reasonable
ambiguity. Hopefully one that will be resolved in favour of greatest openness,
but the state's position is at least not _totally_ unreasonable.

What is unreasonable, and why this is getting attention on HN is because
Malamud's actions in publish the annotations has been described as
"terrorism". Perhaps this is just one boneheaded lawyer speaking carelessly,
but maybe it's a deliberate attempt to conflate political activism, which may
often involve breaking the law or defying authority in a harmless way in
pursuit of a political goal, with terrorism, which involves breaking the law
in a violent or dangerous way for the same ends. It's important that such a
distinction is kept, and the state cannot depict any and all political
motivated misbehaviour as "terrorism"

~~~
kevin_b_er
Unofficial versions of the law are available, somewhat.

The only official version of the law is the annotated one. Thus the only
official law is deemed secret without payment by the state. Thus you cannot
know the true law in Georgia without paying.

Not to mention the official annotations are considered authoritative. Lawyer
and judges reference them, making them part of the law.

~~~
rayiner
Lawyers and judges reference a huge variety of materials in their opinions.
That doesn’t make all those reference materials “part of the law.”

These annotations do not appear to be essential to understanding the law. They
appear to be explanatory aids.

~~~
moefh
> These annotations do not appear to be essential to understanding the law

At least 3 judges disagree with this (quoted from the article):

> “The annotations clearly have authoritative weight in explicating and
> establishing the meaning and effect of Georgia’s laws,” Judge Stanley Marcus
> wrote for a unanimous three-judge panel of the court

~~~
rayiner
The Eleventh Circuit’s decision turns more on the annotations being published
under the authority of the State than the fact that judges and lawyers
“reference” them. Courts routinely reference the Restatements, for example,
but those are private works.

~~~
moefh
To an outsider like me, this situation seems bizarre; please correct me if
this is wrong, but...

It seems like you're arguing that it's reasonable to keep these annotations
private because it's already impossible to understand the law without other
stuff that is private, _not_ because these annotations are not essential to
understanding the law.

~~~
rayiner
You’re starting from a premise that doesn’t really work. In a common law
system, you can’t completely “understand” the law. You guess at what the law
requires, the judge evaluates the law in the context of what you did, and
renders judgment based on everything from other judges’ opinions to
statistical studies to the judge’s moral sensibilities. For example, we are
currently debating in the US whether our workplace discrimination law covers
discrimination on the basis of sexual orientation. Erudite analysis has been
written espousing both sides of that issue. Can you say you “understand” that
law? Yet, people are expected to follow it.

The relevant distinction is between what sources are binding and what sources
are not. The statutory text is binding. Case law in the same jurisdiction is
binding. The annotations produced by a private company, or private scholarship
published in a treatise, are not binding.

~~~
moefh
Thank you for explaining, that makes a lot of sense.

What's surprising is not that it's very hard to understand the law; it's big
and messy and evolving.

What's surprising is that in practice one has to pay money to even try to
understand what the experts are talking about. It's impossible to find all the
relevant texts to study in a library, for example. That seems deeply
undesirable; it exacerbates the problem you described of people being expected
to follow the law when they can't possibly understand it.

------
cure
Carl Malamud does very important work. You can fund Public.Resource.Org at

[https://public.resource.org/about/donate.html](https://public.resource.org/about/donate.html)

A recurring monthly donation is probably most valuable to them (see "Other
Donation Options").

~~~
gus_massa
[Remove the two spaces before https, so the link becomes clicky.]

~~~
cure
Clicky is good :) Done, thanks!

------
BWStearns
Just a note: the use of the word "terrorism" appears to be Malamud's own
usage, though likely taken severely out of context for shock value (I cannot
find Exhibit 2, which is cited as the source of the term). It does not appear
as if anyone is legitimately accusing him of terrorist acts.

That said, it is absurd that materials that have the force of law (being
consulted and cited by judges themselves in rendering judgements) can be
controlled by a commercial entity. I wish Malamud the best.

------
kragen
Probably worth noting that putting court precedents from PACER free online on
RECAP was what launched the first FBI investigation into Carl Malamud's
friend, my friend, Aaron Swartz. They had to close the investigation after
they figured out that unfortunately (from their perspective) everything Aaron
had done was actually legal, but when they got another chance with the JSTOR
incident, their friends at the US Attorney's office hounded him to suicide.

Carl, fortunately, is a bit more laid-back than Aaron was — I don't think
suicide is in the cards — but we should absolutely see this lawsuit as a
continuation of the same appalling, absurd caricature of justice that killed
Aaron.

------
pjc50
The plaintiff is listed as "Georgia code revision commission", and it's
surprisingly hard to find out who that actually consists of - googling it just
finds more reports of this case. I note that Georgia is currently an "R"
state.

~~~
JumpCrisscross
> _The plaintiff is listed as "Georgia code revision commission", and it's
> surprisingly hard to find out who that actually consists of_

From the federal court opinion [1]:

"The annotations were initially prepared by Mathew Bender & Co., Inc., an
operating division of the LexisNexis Group, (Lexis), pursuant to an agreement
it entered into with the State of Georgia. Under the terms of the agreement,
Lexis is responsible for the ongoing publication and maintenance of the Code,
and all editorial, publication, and distribution costs. In exchange, Lexis was
given the exclusive right of publication by Georgia. But, notably, Georgia
holds the copyright in the annotations in its own name. The publication
agreement also specifies what types of annotations should appear alongside the
statutory text, and provides detailed and specific directions as to how Lexis
is to generate and arrange this content. The agreement also provides that the
Code Revision Commission (the “Commission”) supervises the work of Lexis and
has final editorial control over the contents of the OCGA.

The Commission is a body established by the Georgia General Assembly in 1977
that was originally tasked with undertaking the recodification of all of
Georgia’s laws, a project that had not been done since 1933. The Commission is
comprised of Georgia officials, including the Lieutenant Governor, four
members of the Georgia Senate, the Speaker of the Georgia House of
Representatives, four additional members of the Georgia House of
Representatives, and five membersappointed by the president of the State Bar
of Georgia. Following its successful recodification of Georgia law and the
publication of the OCGA in 1982, the Commission is now responsible for
updating the OCGA and supervising Lexis’s editing and publication of the
OCGA."

[1]
[http://media.ca11.uscourts.gov/opinions/pub/files/201711589....](http://media.ca11.uscourts.gov/opinions/pub/files/201711589.pdf)

------
yingw787
Isn’t terrorism the use of physical violence to further political means? How
does this meet the standard of terrorism? I feel like if this is part of the
official record some pro bono lawyer will be looking for a decent payday.

I feel like there should be some personal penalty for those unborn government
who willingly engage in acts that are not in the letter of the law and cost
the taxpayer money.

------
gorhill
> Providing public access to the state’s laws and related legal materials,
> Georgia’s lawyers said, was part of a “strategy of terrorism.”

Incidentally, "copyright terrorism" is an expression the Church of Scientology
lawyers have used against critics nearly 25 years ago:

> The church said that it supports itself through donations for these
> services, and the former member was engaged in "copyright terrorism."[1]

* * *

[1] [https://www.rcfp.org/church-scientology-sues-critic-
seizes-c...](https://www.rcfp.org/church-scientology-sues-critic-seizes-
computer-over-copyright-claim/)

------
ohiovr
I do not understand this story. How can law be "under copyright"?

~~~
gnode
It technically isn't. The annotations in question are expert's analyses of the
law, approved by the state.

The defendant was told he could publish the actual law, and his own analysis.
However it gets really murky when “Georgia’s courts have cited to the
annotations as authoritative sources on statutory meaning and legislative
intent.”

I can see the argument against this being freely publishable. If I wrote a
textbook which explains some badly written and archaic laws really well, and
lawyers and judges started to look to it as the de facto law, should that void
my copyright? On the other hand, the public should have free access to the
interpretation of the law as enforced.

~~~
inflatableDodo
>If I wrote a textbook which explains some badly written and archaic laws
really well, and lawyers and judges started to look to it as the de facto law,
should that void my copyright?

Given copyright only exists under the law, in the rare case that this happens,
a sensible fudge would be to make a compulsary purchase of the copyright for
the assessed market value, so it can become public domain. Much in the same
way as you would do for any other property when you need to build municipal
infrastructure through it. The law is essentially municipal infrastructure
anywazy, so it isn't that much of a legal stretch.

~~~
torstenvl
This is not a "rare case" at all. Judicial opinions frequently cite private
materials such as the Restatements, law review articles, Black's Law
Dictionary, paywalled scientific literature, and so on.

~~~
inflatableDodo
Are the Restatements, law review articles, Black's Law Dictionary and the
paywalled scientific literature cited then 'de facto law'?

~~~
torstenvl
The Restatements and Black's are, yes. Law review articles - maybe, depending
on context. Scientific understanding rarely gets encoded in the law as such,
but see _Roe v. Wade_ as an example - the trimester-based legal framework has
given legal effect to a particular understanding of fetal viability.

Side-note: I don't really care that my above post has been downvoted, but it
seems pretty counter-productive to the HN cultural goal of intellectual
discourse for people to downvote input from actual practitioners in the field
just because they don't like the answer.

------
throw2016
This is poisoning discourse. Accusing Malamud of 'terrorism' is a kind of
terrorism, using the power of the state and law to demonize dissenters by
using emotionally charged hyperbolic language.

But delving into the details the failure is judges and other referring to
annotations of laws as the interpretations of the laws which then build
history and are held precedent, without first making sure any such
interpretations are freely available to the wider public.

The judiciary is a specially empowered part of democratic process and has
powers but also responsibilities, and has a primary responsibility to uphold
the democratic process and free access to the the entire process of laws and
their interpretations, and a deviation from this calls into question an
individuals suitability for such an important role in the democratic process.

------
bilbo0s
Why would there be any issue at all with putting the law online?

Serious question.

What do, say, reporters in Georgia do when they write a story about court
proceedings or what-have-you? Is the state code just never referenced? Or
explained? Or even just written out so that people can see what happened and
how it worked?

Is the general public simply not allowed to know what laws they live under? Or
is it that only people authorized by the government are allowed to tell people
what the law says? (Which, to me, sounds even more problematic.)

~~~
shoes_for_thee
This is addressed in the article.

~~~
bilbo0s
No it doesn't.

It says that court decisions are always public. As are statutes. You can't, to
my knowledge, render your court decisions "not" public, by simply referencing
an annotation and then saying, "well, we have a contract with a publisher".

This legal obligation cannot, to my knowledge, be contracted away. So what
kind of contracting was done to make this happen? This is my question. How did
they manage this so that a take down notice is suddenly legal, as opposed to
explicitly illegal?

~~~
NoGravitas
So, the gist of it is that while the court decisions are public, things
written about the court decisions, like news articles, may be copyrighted. The
state of Georgia claims that this is the status of the annotations written by
Lexis-Nexis.

Clearly, this shouldn't be possible: a work contracted by the state is a work
by the state (ie a work for hire), and should be public domain. But there's
money involved, and that tends to be the deciding factor in legal decisions in
the US.

------
typon
Reminds me of Chinese government's method of censorship by accusing people of
"causing harm to state security"

------
anentropic
Your country is broken

~~~
DanTheManPR
I don't know if we can recover. There seems to be a strong trend towards the
breakdown of large societal systems, and no appreciable efforts towards
reformation. If very basic things like posting the laws of the state on your
website receives this kind of response, then what hope do we have of tackling
major problems? I used to be much more of an incrementalist, confident that
the hard, slogging work of slow political activism could lead to a surprising
amount of change over the long term, and I was dismissive of catastrophists
who just threw up their arms and declared that everything was futile. But now,
half of my life I have just seen the political process in the US grind to a
complete halt, with no realistic path towards any major reforms. This kind of
stasis is not sustainable in a world that is changing as much as it is, and I
fear that the resolution will not be the un-gumming of the political system...
it will be the collapse of US society into something unrecognizable.

------
Lowkeyloki
This is baffling to me. IANAL, but I was under the impression that any
documents created by the government were automatically in the public domain
and couldn't be copyrighted (with the exception of classified documents, of
course).

------
mighty_bander
Usually, when reading about Georgia, a glance at the article provides enough
context to determine whether it's about the American state or the former
Soviet bloc nation. Not in this case, it would seem.

------
larkeith
Previous discussion on similar topic:
[https://news.ycombinator.com/item?id=19617073](https://news.ycombinator.com/item?id=19617073)

------
JdeBP
Actually, xe wasn't.

The legal brief from the plaintiff, hyperlinked from the _NYT_ article, dated
2015, actually says:

> _Defendant’s founder and president, Carl Malamud, has indicated that this
> type of strategy has been a successful form of “terrorism” that he has
> employed in the past to force government entities to publish documents on
> Malamud’s terms. See Exhibit 2._

* [https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...](https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.uscourts.gand.218354.1.0.pdf#page=11)

It is purporting to quote _M. Malamud xyrself, describing xyr own acts_. To
see whether that is actually true, one follows it to exhibit 2.

* [https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...](https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.uscourts.gand.218354.1.2.pdf)

* [https://archives.cjr.org/campaign_desk/carl_malamud_public_p...](https://archives.cjr.org/campaign_desk/carl_malamud_public_printer.php)

... where we find that it is a 2009 article from _Columbia Journalism Review_
that says:

> _It was a threat to commit “standards terrorism,” as Malamud later put it;_

... with "later put it" hyperlinked in the original _CJR_ article to
[https://museum.media.org/eti/](https://museum.media.org/eti/) and the court
exhibit containing that same URL explicitly. So the question is whether M.
Malamud indeed described xyr own actions as "terrorism" there.

Indeed, xe did:

> _While Tony certainly sympathized with my goals, I wasn 't quite sure how he
> was going to react to this form of standards terrorism._

* [https://museum.media.org/eti/Prologue01.html](https://museum.media.org/eti/Prologue01.html)

So: Back in 1992, M. Malamud _describes xyr own actions_ as "standards
terrorism". That's picked up by Clint Hendler of the _Columbia Journalism
Review_ some 17 years later and directly ascribed as M. Malamud's own words;
and 6 years after that, the plaintiff points out that that is how M. Malamud
characterizes xyr own actions. Then the _New York Times_ , the _Los Angeles
Times_ , the _Atlanta Journal-Constitution_ , and others misreport that as the
plaintiff accusing M. Malamud of terrorism.

And the falsehood that _the state of Georgia_ claimed that M. Malamud was a
terrorist becomes the accepted truth to such a degree that even Wikipedia's
article on Carl Malamud has stated it for the past 4 years.

* [https://en.wikipedia.org/w/index.php?title=Carl_Malamud&diff...](https://en.wikipedia.org/w/index.php?title=Carl_Malamud&diff=673548316&oldid=673483360)

~~~
jtuente
In case 'xe', 'xyr', etc. confuse anyone else, they're genderless pronouns.

------
ezoe
It cannot happen under the Japanese copyright law. I really can't understand
the US law system in general.

------
deytempo
Very simple solution to this. Pass a federal law that makes it illegal to
copyright a law.

------
kevin_thibedeau
And now Georgia is yet another state on my don't-move-there list.

------
roel_v
There is so much confusion in this thread as to what this is about, I think we
should bring out our famously flawed tech analogies. Say the IEEE writes a
standard for a networking protocol. It's full of arcane acronyms and technical
details, as well as some ambiguities here and there. So then I (as a private
person, nothing to do with the IEEE) write a book explaining the protocol in
usable terms. I also take some liberties to provide advise on 'best practices'
on some of the ambiguous parts. My book is so useful and successful, that even
most implementors of the protocol refer to it. Because of that, most
implementations behave mostly the same in the corner cases.

Something like this happens quite a lot, to a greater or lesser extent. Nobody
(well, copyright abolitionists would, out of principle, but I'm talking people
who just want to get stuff done and get on with their life) would argue that I
would lose copyright to my book, because it's so successful.

Now the IEEE pays me to write said book. This is where things become murkier
(maybe). Because now, has my book become an extension of the standard? Does it
depend on the relationship between me and the IEEE? Say, if I have access to
drafts of the standard, and I provide feedback, does that make my book closer
to being part of the standard? If my book just has clarifications and no
opinion in it, does that make a difference? I would still say that, as long as
it's _possible_ to implement the standard without the book, it's not 'part' of
the standard. But as the standard gets less clear, at some point, it becomes
impossible to implement something in an interoperable way _without_ having the
book. Should I lose copyright my book in such a case? And does it still matter
whether the IEEE has paid for it?

One difference between the IEEE and legislators is that one can say 'screw the
IEEE, I'll just make my own protocol'. You can't do that with law. Is that
sufficient a difference to make someone lose their copyright? Or should the
IEEE just have paid me outright, as a contractor, to write the book, so that
they can give it away for free? But then why bother with the book at all?
After all, the book is just for making things easier, it's not a 'source' as
such, regardless of how much easier it makes implementor's lives.

I don't think this is as clear or as outrageous a case as people are making it
out to be here. We don't want to discourage people from making annotations,
summaries and explanations. Maybe legislators should just write more clear
laws to begin with. But the more you do that, the more you open yourself up to
'backdoors' and 'hole in the law' trickery. Not to mention that it becomes
even harder to get political will to support a text in the first place -
making perfect the enemy of good enough.

------
prepend
This hyperbole on the part of the state is dangerous. It reminds of of
lifetime flagging individuals as “sexual predators” and then learning that
some state will use this for people convicted of public urination.

It makes going to the source very important as my previous reasoning used to
be “Are you against Terrorism/Sexual Predation? Yes. Cool, here’s how we deal
with it.”

Now is much more labor intensive as it’s now “are you against Terrorism/Sexual
Predation? Well, that depends on the particulars...”

~~~
KerrickStaley
The word "terrorism" was used by Malamud himself to describe his own actions,
see [1]. The state is quoting him. The title and contents of the NYTimes
article are misleading on this point.

[1]
[https://museum.media.org/eti/Prologue01.html](https://museum.media.org/eti/Prologue01.html)

------
Nasrudith
Really the abuse of "terrrorism" so blatantly even by the standards of a
government should qualify for some pretty damn harsh defamation law to the
officials trying to hide behind the state. Those sorts of abuses of power are
the kind of thing where we actually do need to be "tough on crime" for if we
wish to be remotely free.

~~~
Fnoord
I'm not sure on which law this whole fad is based on. Is it an old law?

> [...] The last time the Supreme Court addressed the matter, in 1888, it
> ruled that “the whole work done by the judges constitutes the authentic
> exposition and interpretation of the law, which, binding every citizen, is
> free for publication to all.”

A solution to how ridiculous old laws are is automatically expire them. That
way, the politicians are forced to reevaulate them.

~~~
JumpCrisscross
> _A solution to how ridiculous old laws are is automatically expire them_

This sort of legal amnesia has major drawbacks. Hand politicians the
opportunity to make crisis and they'll take advantage of it. Do we really want
debt-limit style brinksmanship around murder statutes?

Moreover, cleanly sunsetting laws within our common law system is hard. Case
law builds on statute. Regularly wiping away vast portions of case law will
have unanticipated consequences.

~~~
emidln
> This sort of legal amnesia has major drawbacks. Hand politicians the
> opportunity to make crisis and they'll take advantage of it. Do we really
> want debt-limit style brinksmanship around murder statutes

Yes. Presumably politicians don't want to be murdered by their opposition. It
wouldn't lapse more than once.

~~~
Filligree
Because the first time it did lapse, you'd probably crash society. I'd rather
not make the attempt.

~~~
NotSammyHagar
Think of pro and anti civil rights laws switching in and out of law, divorce,
women's rights child labor, workers rights. If these hard fought civil rights
expire they wouldn't come back automatically in today's world of ALEC.

------
dfxm12
The state is saying Malamud called his own actions "terrorism". I think it's
irresponsible how the lawyers worded this in their suit. I also think it's
irresponsible for the NYT to print this without this context.

From the suit[0]:

 _Carl Malamud, has indicated that this type of strategy has been a successful
form of_ “terrorism” _that he has employed in the past to force government
entities to publish documents on Malamud’s terms._

 _Consistent with its_ strategy of terrorism _, Defendant freely admits to the
copying and distribution of massive numbers of Plaintiff’s Copyrighted
Annotations on at least its[https://yeswescan.org](https://yeswescan.org)
website. See Exhibit 3._

I wonder what Exhibit 3 is and if it actually shows Malamud referring to his
actions directly as terrorism. I wouldn't know how to look that up. Does
anyone?

EDIT: It's from the prologue section here:
[https://museum.media.org/eti/](https://museum.media.org/eti/)

It's a joke that the lawyers used this as justification for sneaking the word
"terrorism" unqualified in their suit.

0 -
[https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...](https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.uscourts.gand.218354.1.0.pdf)

~~~
otterley
Mods, do you mind fixing up the title? This fact is relevant and leads to
confusion among the commenters.

~~~
dang
Ok, I've taken a crack at it.

------
burtonator
This is what they accused Aaron Swartz of too.

"Misdemeanor Terrorism" was one of the charges I believe.

The lawyer that said that this is 'terrorism' should be disbarred. This is
borderline slander.

~~~
yingw787
......misdemeanor terrorism. How does that term even exist? Is that like
flying a Cessna into the World Trade Center instead of a Boeing 757?

Agree with you there. Either it’s terrorism or it isn’t.

~~~
ben_w
That scenario has happened:

* [https://en.m.wikipedia.org/wiki/2002_Tampa_Cessna_172_crash](https://en.m.wikipedia.org/wiki/2002_Tampa_Cessna_172_crash)

* [https://en.m.wikipedia.org/wiki/2010_Austin_suicide_attack](https://en.m.wikipedia.org/wiki/2010_Austin_suicide_attack)

Curiously they both seem to have been described as “not” terrorism (though I’m
not totally sure that was the final conclusion).

------
crankylinuxuser
Note: Georgia's lawyers called it a "strategy of terrorism". Carl Malamud is
not being charged with terrorism. This is a copyright case as it pertains to
official state law.

Claiming "terrorism" is a significant detriment to the story.

~~~
JackC
They're not accusing him of literal terrorism, no, but it's a legitimate angle
to the story to point out that the state of Georgia is using way over the top
language to oppose Malamud's attempts to help the people of Georgia.

