Oregon claims state law copyrighted

By | Saturday, April 19, 2008

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Lawyers for Oregon are accusing a legal publisher of breaking the law for posting the state code on its Web site.

Oregon's Legislative Counsel Committee earlier this month issued a cease-and-desist letter to Justia.com, accusing it of copyright infringement for publishing the Oregon Revised Statutes.

Justia publishes laws, regulations and legal decisions where they can be viewed free. The Palo Alto, Calif., company also offers commercial services helping law firms set up Web sites and blogs.

Oregon does not claim a copyright in the "text of the law itself," but rather in "the arrangement and subject-matter compilation" of the law, Legislative Counsel Dexter Johnson said in an April 7 letter to Tim Stanley, chief executive officer of Justia.com. The letter advised Justia.com that it may link to the law on the state's own Web site, or it must pay for a license to publish it.

The state "will take any and all appropriate measures to compel your compliance" if Mr. Stanely does not stop publishing the Oregon Revised Statutes or enter into negotiations for licensing rights by April 30, the letter said.

"They were putting those portions of the ORS that are capable of being copyrighted — that is to say, the organizational structure, lead lines and that kind of thing — under their own copyright rather than under the copyright held by the Legislative Counsel," Mr. Johnson said. Those portions of the law have been copyrighted since 1953, he added.

Mr. Stanley said he is having discussions with state officials but has no intention of paying for a license.

"It's surprising that they would do this," he said. "If we can't reach a resolution, certainly we'll litigate. I think they would lose on that."

The Copyright Act holds that federal statutes are not subject to copyright, but that does not apply to states, noted Marc J. Randazza, an adjunct professor at Barry University School of Law. While there haven't been any recent decisions on the issue, a number of cases near the turn of the 20th century rejected the notion that states can copyright their works.

"Trying to claim a copyright in the statute itself is simply not going to fly," Mr. Randazza said. "To seek copyright protection in something you need to have originality. And simply how you've numbered public domain information does not seem, to me, to rise to the level of originality required under the Copyright Act."

Timothy Armstrong, an assistant professor at the University of Cincinnati College of Law, likewise said he doesn't think Oregon's organizational scheme is original enough to receive copyright protection.

"I have a hard time imagining a less original selection and arrangement than placing statutes in ascending numerical order by section number," he said.

Carl Malamud, president of Public.Resource.org, which also publishes legal information free to the public, has a history of activism when it comes to making public documents readily available on the Internet. His site did not receive a letter, but he heard about the case from Mr. Stanley and immediately contacted state officials to object.

"Oregon is trying to protect the $390 book they sell," Mr. Malamud said, referring to the state's publication of its legal code. "They, like all states, are short on funds and trying to raise money however you can, but you can't do it on the back of the public domain."

Mr. Johnson said Oregon is not motivated by money but by a desire to enforce its copyright.

"We have no interest in trying to raise revenue or anything like that from publication of the ORS," he said.

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