Should the Law be Free? Carl Malamud Thinks So
Should the law be copyrighted? Internet activist Carl Malamud doesn’t think so. He and his nonprofit organization, Public.Resource.org, have been putting HTML versions of legal code online—and then taking the issue to court (when other people aren’t taking him first).
To be clear, it’s typically not the legal code itself that’s the issue, but the pages and pages of case law associated with the legal code. States such as Oregon and Georgia contend that the case law can be owned. In fact, with Georgia, it’s owned by a private company, LexisNexis. Consequently, Malamud’s publication of that case law violates the copyright of its owners. Georgia officials have gone so far as to call his publication of the material “terrorism.”
“Though the Supreme Court ruled 200 years ago that government work can’t be copyrighted, a tug of war between private companies with contracts to publish state codes and open government activists has raised questions about the ruling’s scope,” explains Alex Koma in StateScoop. “At issue are the annotations and summaries of legal opinions — which are meant to serve as reference points for lawyers and scholars — attached to the code. In Georgia, private research company LexisNexis has a contract with the state to offer the code freely online and in book form, for $378 per copy. Those documents serve as Georgia’s official sources of state law.”
Malamud’s contention is that the case law is inseparable from the law itself. That’s aside from his claim that he’s performing a public service by making the law freely available in a way that’s typically easier to search and for open data efforts to use than the way it’s online originally. He and other advocates contend that the Georgia case, and others like it, flies in the face of government open data initiatives that are intended to enable companies, nonprofit agencies, and individuals to develop products that make use of government data.
Malamud first published Georgia’s legal code to his organization’s website in 2013, and the state filed a lawsuit in the summer of 2015. For their part, LexisNexis and the state of Georgia point out that the company compiles this data and puts it in a format the state specifies for free, and that it recoups this investment by selling the data, Koma writes. If LexisNexis weren’t allowed to do this, either the state would have to do it—and pay for it—on its own, or the work wouldn’t get done, contended Georgia State Representative Johnnie Caldwell Jr., who served as chairman of the Georgia Code Revision Commission.
This isn’t Malamud’s first brush with the law on this end. Like fellow Internet copyright activist Aaron Swartz, Malamud has been involved with a number of issues related to his contention that certain information should be free to the public. For example, they worked together to help put material from the Public Access to Court Electronic Records (PACER) database online, an effort that Malamud is continuing.
Malamud went through a similar fight with the state of Oregon over publishing its legal code, but that was easier because the state hadn’t contracted with a private company. He’s also received cease-and-desist letters from several other states over his publishing of their legal code. But according to the Atlanta television news station 11Alive, Georgia is the only state to actually sue him for it.
The American Bar Association Journal named Malamud one of its “Legal Rebels”—“risk-takers and innovators, attorneys and others in the legal space who are pushing the envelope to expand and improve legal practice”—in 2009 based on his work in this area. In its award, the journal noted that in the 1990s, he put the Securities and Exchange Commission’s EDGAR database online. He’s now working on other types of legal code.
“Malamud’s latest campaign is to liberate the Code of Federal Regulations, state administrative regulations and public safety codes (think building codes) incorporated by reference into state regulations,” wrote Jenny Davis. While the codes were developed by private companies and nonprofit organizations, they are written with the intention of including them in state code, which means they should be freely and publicly available, he contends.
In similar efforts, Malamud has also called on the IRS to release a searchable database of the Forms 990 submitted by nonprofit organizations (which it agreed to do last week), fought with the Harvard Law Review about its control over the way that people make citations in legal documents, and been threatened with jail for publishing the German safety codes associated with producing baby pacifiers.
What’s made all this an issue is the fact that technology is now available to scan legal documents and put them online in an easily searchable fashion, potentially giving every U.S. citizen easier access to this information. “In the 1970s, there wasn’t a better way of doing things since the publishers were the only ones who could publish the books,” Malamud told the ABA Journal in 2014. “Today there are much better ways of making this information available.”