- The Washington Times - Sunday, March 31, 2013

Ignorance of the law is no excuse, but those who want to ensure they’re in compliance with the District’s laws must obtain them from a private company owned by a foreign conglomerate.

The District is one of several states that assert copyright on their laws, forbidding others from publishing them. Some states cede the rights to for-profit legal publishing companies such as WestLaw, but the D.C. Council has copyrighted them itself, putting anyone who dares make the laws of the land available at risk of a $150,000 fine.

That gives WestLaw a monopoly on the D.C. Code, leaving residents and businesses who need to know its regulations two options: Pay $803 for a 23-volume bible of regulations or view sections of the law on WestLaw’s website. The laws are not available from the District itself, much less from others who might analyze and publish them in more user-friendly formats.

The prospect of a fine didn’t deter Carl Malamud, an Internet pioneer who believes the law belongs to the public. He wasn’t content with merely advocating for a policy change: A mentor of Aaron Swartz, the technology wunderkind who sent sorrow through the Internet community this year when he hanged himself while facing decades in prison for attempting to free scholarly articles from a Massachusetts Institute of Technology server, Mr. Malamud took it upon himself to break the copyright himself, paying the $803, scanning each page and making them available online for free — with the line on each page asserting copyright crossed out.

“It violates the copyright law if they have a valid copyright, but just because they say they have copyright doesn’t mean it’s valid,” Mr. Malamud said. “I sent a notice to the codification council to let them know we’re not sneaking around, we’re doing this affirmatively, and they never returned my call.

“There’s not a lot of states — Georgia, Wyoming, Colorado, Ohio, Mississippi, Idaho — that assert copyright, and sometimes they have an online version like D.C. does where you can see the law but only with one really bad website,” he said. “It’s the issue of freedom to read the law but also to speak the law and build a better iPhone app.”

In 2008, Oregon sent cease and desist letters to a website publishing the state’s laws online. “So I got it and put it up myself and let them know just to put our belly up to the bar,” Mr. Malamud said, earning himself a take-down notice of his own. He eventually got Oregon to relent.

At the federal level, many safety standards, such as oil drilling and occupational hazard rules, are designed by private “standards developing organizations,” which will only provide those rules to those who pay for their booklets. When the Office of the Federal Register sought comment on whether it should forbid that, the consortiums lobbied intensely to protect their business model.It has become a crusade for Mr. Malamud and his nonprofit, Public.Resource.org, and one that is done at considerable cost and even more risk to purchase and publish 10,062 technical standards and laws across 75 countries.He said if one infraction raises prosecutors’ ire, they can bring charges for each additional infraction, which can rapidly escalate, as they did in the case of Swartz, who faced 35 years in prison, in what many described as prosecutorial overreach made possible by a set of laws that has not adapted to changes made possible by technology.

Emails between Swartz and Mr. Malamud show a mentor who urged restraint and the letter of the law to a young idealist who believed his goals of making government-funded property freely available to the public justified in-your-face means.

“The liability is quite significant,” Mr. Malamud said of his own current endeavor.

Vladlen David Zvenyach, who oversees codification for the city council, said in Washington’s case, Mr. Malamud has nothing to worry about.

“At one point, the publishers threatened states over the ownership of their own code. If Lexis is the one doing it and the state goes around and alters it, they could be sued by the publishers. Our copyright is intended to protect us against them, not protect them against the public,” he said. “I have no intention of going after him.”

He said Lexis recently took over the contract from WestLaw and the city is working to make the full text available in more flexible formats, rather than locked behind mouse-clicks on WestLaw’s website.

The D.C. code is 32,062 pages long, including 8,000 added in the last 12 years, a Washington Times analysis shows. That includes 2,222 pages on “Taxation, Licensing, Permits, Assessments and Fees,” with 564 new pages since 2001.

• Luke Rosiak can be reached at lrosiak@washingtontimes.com.

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