April 24, 2014

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The District of Columbia Claims Copyright on the Law

Update: They released the unofficial version of the DC Code under a CC-0 License. Josh Tauberer has the backstory.

Copyright exists to incentivize people to create new works. The federal government is not allowed to copyright things, because they don’t need the added incentive, and it would be bad if they started charging for access to something like the text of laws that they promulgate. If ignorance of the law is no excuse, the law must be public and knowable.

It’s a little bit more muddled at the state level. The District of Columbia claims that they own the copyright to the municipal code of DC. This is insane. Furthermore, as documented by Tom MacWright, DC has sold the exclusive rights to digital copies of the DC code to West (Thomson Reuters), and they cannot legally redistribute an electronic version of the code. This makes all kinds of democracy-enhancing activities impossible. In fact, even the physical copies of the DC Code bear the notices “Copyright 2001 by The District of Columbia” and “All Rights Reserved.”

Rogue archivist Carl Malamud thought that this was not only stupid, but also illegal. So, he bought all 23 volumes of the DC code for $803.00, scanned them, and posted them on the web. I agreed with Carl, so I downloaded his copies, printed one of the volumes, and took a picture inviting Thomson Reuters or the DC Council to sue me too.

Sadly, it appears that neither Carl nor I will have the pleasure of being sued for speaking the law. Today, the Washington Times asked Vladlen David Zvenyach, who oversees DC codification, about Carl’s activities. Zvenyach said “I have no intention of going after him.” That’s unfortunate, because such a case would afford the opportunity to challenge this ridiculous practice. Mr. Zvenyach claims that the copyright notice exists because:

“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.”

Ok Vladlen. Why don’t you put your money where your mouth is and put a CC-0 license on your physical and electronic copies of the DC Code? Apparently you recently negotiated a license with Lexis. If you can’t manage to openly license the law, you might find yourself discussing it in the context of a petition for declaratory judgment.

Comments

  1. Carl Malamud says:

    Great post, Steve, and thanks for standing up with a copy of the code. The more citizens who do this, the easier it is to change these policies.

    One point of clarification. Here at Public.Resource.Org we have a goal of never getting sued. We make these copies in the hope that government will see the light and voluntarily change their policies. If we can do that without a court battle, that is by far the best solution. In fact, we’ve never been sued and we’ve only gone on the offense twice: we threatened action in Oregon but the state instead held hearings and ended up waiving copyright and we have an ongoing request for declaratory relief in the case of federal HVAC standards incorporated by reference into law. We’re hoping for an amiable settlement on the latter.

    • Steve Schultze says:

      Good point, Carl. I agree that not litigating is better than litigating, whenever possible. That being said, if it’s necessary, I don’t mind being sued (or suing) for something as ridiculous as this. Hopefully Mr. Zvenyach and the DC Council see the wisdom of changing their policy on this without the need for a lawsuit. What they’re doing is not just illegal, it’s bad for democracy.

      • Courtney says:

        But if the publsher is the rightsholder (with the bundle of rights – right to distribute, display, copies, etc) couldn’t they act on behalf of DC and bring suit? I agree – ridiculous – but not outside the bounds for publishers (and their conception of “rights”). I mean, University presses are suing Universities for copyright, so anything is possible!

  2. thom says:

    I would put money on the publishers not suing. Because what self respecting judge would punish a citizen for distributing the law to other citizens? The publishers might lose, and that precedent would undermine their only leverage in preventing copying of the law–that boogeyman lawsuit they may or may not use to bully obiesance out of less powerful parties.

    • paul says:

      I might take that bet. Because what persnickety judge (in a venue chosen by the plaintiff) could resist dinging some effete liberal activists for stealing the hard formatting, pagination and indexing work of the nice people who throw all manner of enjoyable functions for judges?

  3. Tom says:

    The DC Council could have always used a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 United States to accomplish the same thing… Then we would all be free to copy, print, and distribute to our hearts content while th for pay people are shot down and can be sued if they dare try to profit from it.

    But, of course the DC Council is made up of politicians — to dumb to think.

    • Steve Schultze says:

      No, there is no reason to restrict it to non-commercial use or to prevent derivative works. We want innovators to find useful ways to make the law available, and maybe to make money in the process. We want people to be able to create new ways to present and search the law that would arguably be derivative works.
      CC-0 is the right license.

  4. Chantel says:

    I feel like when it comes to the government and copyright laws and what’s being published it should be taking very serious. If the District of Columbia so claim that they own something then someone would have to show ownership of the document. And taking that DC has sold the exclusive rights to digital copies to the West, without getting the consent of the owner of the document. So I agree on the copyright law being enforced when it comes to things that are more serious or dealing with the government.