- The Washington Times - Monday, September 15, 2008

CORRECTION: The original headline on this story (ROWLAND: California demands site stop posting laws online) was incorrect and has been modified above.

In an action that mirrors a similar case this spring, California is asserting a copyright over its state statutes in a move that seeks to limit their reprinting and distribution.

The claim mirrors one made in April by lawyers for Oregon, who sent a cease-and-desist letter to Justia .com for posting the Oregon Revised Statutes online. Authorities accused the Palo Alto, Calif., company of copyright infringement and demanded that the legal site either link to the state’s own Web site or pay for a license to publish the statutes.

In the latest instance of states claiming copyright over their laws, public information activist Carl Malamud posted the California Code of Regulations online at public.resource.org. According to the Press Democrat in Santa Rosa, Calif., the state government is asserting a copyright over its laws so that people will be forced to buy a digital copy for $1,556 or a print copy for $2,315. The state rakes in nearly $1 million a year from sales of its code.

“We exercise our copyright to benefit the people of California,” Linda Brown, deputy director of California’s Office of Administrative Law, told the paper earlier this month. “We are obtaining compensation for the people of California.”

It isn’t clear what action the state may take against Mr. Malamud; Ms. Brown told the Press Democrat that she wasn’t familiar with his posting of the state code.

In the Oregon case, the state claimed a copyright not in the “text of the law itself,” but rather, in “the arrangement and subject-matter compilation” of the law, according to April 7 letter from Oregon Legislative Counsel Dexter Johnson to Justia Chief Executive Officer Tim Stanley.

Legal experts interviewed for a story at the time said the state’s case was weak.

“To seek copyright protection in something you need to have originality,” Marc J. Randazza, an adjunct professor at Barry University School of Law, told me. “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.”

The Copyright Act holds that federal statutes are not subject to copyright, but that does not apply to states. There haven’t been any recent decisions on the issue, but a number of cases near the turn of the 20th century rejected the notion that states can copyright their works.

Oregon relented in June following negotiations with Mr. Malamud and Mr. Stanley.

Mr. Malamud told the Press Democrat he is willing to go to court.

“If that happens, it opens the doors to innovation,” he said.

DTV and the FCC

Wilmington, N.C.’s early transition from analog to digital television last week was a success, according to the official word of the Federal Communications Commission, which is overseeing the nationwide switch on Feb. 17.

According to the media-regulating agency, “the vast majority” of the coastal city’s 400,000 TV viewers “were aware of the transition and seemed to be prepared for it.”

About 8 percent or 14,000 of Wilmington’s 180,000 households rely on over-the-air analog broadcasts. On the first day of the transition there, Sept. 8, about 800 residents called the FCC help line asking questions.

E-mail Kara Rowland at krowland@washingtontimes.com.

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