There is something quite perverse about a legal system that charges to read the statutes, and yet insists everybody is presumed to know what the law is. Presumably, Oregon is protecting a revenue stream here.

Now, now. As readers of West's headnotes know, the text of the opinion cannot be protected, while the editorialization in the headnotes is protected under the copyright laws. No one can prevent Cornell or anyone else from publishing the text of the statutes.

The issue is the other stuff that one finds in various "annotated" versions of statutes, i.e., commentary on prior versions of the statute, the provisions connection to other statutes, case law interpreting the provision, etc. These represent work by others that seems to me perfectly worthy of copyright.

The question to me is not whether the "extra" stuff is copyrightable, but whether the states should elect to forego their protection in favor of helping everybody get free access. This raises two issues: (1) is there a state revenue stream of any importance that would be lost (probably no), and (2) is there a publisher with a contract or other connection to the state whose business would be affected (probably yes).

fyi, WA state has a very good online revised code of washington site...

http://apps.leg.wa.gov/RCW/

also, if you click the "search RCWs" link on that page, the search engine is pretty good

i use it all the time

Oddly, the state of Oregon also has a free website (with no ads and no registration requirement) that provides the exact same information.

http://www.leg.state.or.us/ors/

I'm confused by all this as well. Every time I've gone to the website of any state's legislature, the code is available. I can't say that's true of all, but I've visited several.

Here, for example, is Ohio's:
http://codes.ohio.gov/orc

As for a "complete and authoritative compendium," can't someone just spend an hour or two, visit every state's legislative website, copy the hyperlink to each state code, and then arrange all the links to the state codes on one webpage for all to see? (If I do that, Mr. Post, will you pay me?)

And yet lawyers wonder why us civilians think the law is a racket.

An action not without precedent, unfortunately.

See, e.g., The Examination of William Bradford before Governor Blackwell, att [sic] Philadelphia, the 9th of the Second month, 1689, concerning printing the [colonial] Charter [without government permission].

It seems we've not come very far lo these past 319 years. Shame on the state of Oregon, a pox now on the Union.

"As a general rule, I never ascribe to malice that which may be explained by incompetence, and I expect that rule applies here."

i'd suspect a nannystate desire to control everything (especially in the case of oregon) vs. incompetence.

this is a state that doesn't allow people to pump their own GAS for pete's sake.

people's republic of oregon

Not to take Oregon's side, by any means, but does the Feist case apply here? If I recall, the Sup Ct held that the arrangement of a telephone book was copyrightable. It's been awhile since I read that case.

I could have sworn that government codes are non-copyrightable.

There is something quite perverse about a legal system that charges to read the statutes,

It's not the judiciary that's trying to prevent free access to the statutes. The executive takes the blame for this, and if they won't change course, then the legislature ought to change course for them. And frankly, they should not be stopping with the statutes. People should have free, searchable, online access to a complete set of Oregon's regulations as well.

I have no life:

Oregon is claiming a copyright in the *numbering* and arrangement of the statutes, not the raw statutory material. It is a technically valid copyright claim, as far as I can tell, though I am puzzled as to why the State should wish to assert it.

You may also be thinking of 17 USC 105 which says "Copyright protection under this title is not available for any work of the United States Government. . ."

Cornellian:

Actually, in this case, the blame belongs to the Legislature. The officer making the demand is the Oregon Legislative Counsel, who works for the Legislature, not the Governor or Attorney General.

I agree that 17 USC 105 is good public policy and states should have analogous statutes (though I am not aware of any that do).

Pete:

The effect of Oregon's no-self-service law is that I do not buy gas in Oregon. I always make a point of filling up before I get there. They'll take my gas pump when they pry it out of my cold, dead hands....

PDXLawyer wrote:

I've looked at it every way I can and tried to figure out who might, possibly, have a financial or practical interest which could be advanced by this. I'm stumped.

Isn't West ("All your laws are belong to us") Publishing profiting by a monopoly on publishing the code?

Actually, if you read Oregon's letter posted on the site in question they do not claim copyright in the materials, but only in the work of the Committee, and object to Justicia's assertion of a copyright in the same materials at the bottom of the page reproducing Oregon's statutes.

Oregon is claiming a copyright in the *numbering* and arrangement of the statutes, not the raw statutory material. It is a technically valid copyright claim, as far as I can tell, though I am puzzled as to why the State should wish to assert it.

I assume that it's because Westlaw pays them for the rights to publish these things, and Westlaw won't pay them for the rights to publish these things if it's available for free.

Legislators are the employees of the people. This is only slightly less ridiculous than someone telling his boss "Those quarterly sales reports...they're copyrighted to me, and you can't see them."

Sorry for getting Feist backwards. Damn! Law school was too long ago.

Oregon sounds like a socialist paradise. How ironic that they charge $$$ for making their laws available.

The only Oregonian I ever knew always used to rebuke me for not recycling, not being concerned about the dolphins, not respecting that all animal life is sacred, etc. He was a real jerk. But I bet even he pumped his own gas, despite hating the big oil companies.

Pete, I don't know why Oregon's "no self-serve" law was originally enacted, but I can tell you why it has never been repealed. It's simple: the residents of Oregon don't believe for one second that repealing the law will result in lower prices at the pumps. They think (not without some justification) that the station owners will dispense (har har) with the services of the pump jockeys and simply pocket the difference. In which case, the driving public will end up paying no less, but having to pump their own gas TOO.

To which they reply, "Screw that!"

Shortly after crossing the border into Oregon in 1991, I stopped to gas up. I started pumping my gas and the station attendant looked at me curiously. "YOu can't do that," he said. "I can't?" I said. And thus did I learn this quirk of my new home state....

On a somewhat tangential topic, I've noticed that news reports will discuss the passage of a piece of federal legislation - but never provide a link to the actual text. IIRC, there are at least two websites through which you can see a law's text and the roll call vote.

The Library of Congress' THOMAS is one of those, I don't remember the other one off the top of my head.
http://thomas.loc.gov/

It would be nice if journalistic standards adopted such a style online - linking to the authoratative text/votes of any legislation mentioned in the news.

Railroad Gin, yeah. I imagine that's how it would play out. But the voters of Oregon don't seem to want to take that chance. As someone who grew up pumping my own gas, I don't really care one way or the other. Both approaches have their drawbacks (I have to admit enjoying not having to pump the gas myself in the wind/rain/cold, but I could if I had to.)

As for enforcement--I dunno. That pump jockey I met when I first got to Oregon just explained to me that I wasn't allowed to pump my own gas. But that station was close to the border so I imagine he has to do that a lot.

IIRC, Ohio was the first, or one of the first, states to pump its decisions into what became Lexis. Mead, a paper company, was one of the proponents.

As for copyright and laws, a similar issue arises with model statutes and model rules. IIRC, there is a split of authority on that issue. One manifestation of that is that the ABA charges for copying its model rules for legal ethics. One leading ethics textbook therefore quotes from the Delaware ethics rules -- which are basically identical in numbering and text. The text also informs the students that the quoted rules are Delaware's rules, not the ABA's, but happen to be identical to the ABA rules. An elegant solution. AFAIK, the ABA hasn't challenged that practice.

Findlaw is free; I've never tried to read Oregon's codes on findlaw, but I've gotten all the California law I could want from there.

Can anyone sugggest why it might not be a good policy for states to make a blanket copyright waiver for all government-produced works (analogous to 17 USC 105)?

States seem, mostly, not to do this. I wonder if the matter has had any scholarly attention or been the subject of a legislative debate.

Findlaw is owned by Thomson-West. I believe Findlaw links to the official codes located at the state legislature's web sites, Findlaw doesn't have them on their site.

However well meaning Oregon's no pump law has serious social consequences that need to be addressed. Many small towns in Oregon have a chronic under-employment problem so that most of the gas pump jockey jobs are filled by young men in their late teens and early 20's. Because most of the gas stations provide uniforms or jackets with the brands prominently featured on them, much like gang colors, this has led to actual gangs forming and strife between the various factions of "Exxons", "BP's", "Shells" and "Arco's". Fortunealtly this seldom progrsses past flashing of petroleum company hand signals, but there have been cases of actual violence in the struggle to control the lucretive gas market from tourists and truckers getting off the interstates.

(I hope no one from Oregon reads this.)

Where do I send money for the legal defense fund?

"Do they call out the SWAT team if someone pumps his own gas. How is the law enforced? "

I live in California, my family lives in Washington State, so I have gone thru Oregon many times on my motorcycle. (As an aside, for a motorcycle they let me pump the gas, but an attendant has remove and replace the hose from the pump). About 15 years ago on a rainy day on the coast highway I got tired of waiting for the attendent (who I beleive was the owner) to come out of his nice dry office, so I pumped it myself. He got very upset, claiming that he could be fined $10,000 (yes, that is 10 thousand) for letting that happen. (I don't know if what he told me was true.) Since then, according to signs on the pumps, they will fine the person pumping. I don't know how much.

I asked the attendent in the described incident why they had the law, and he said, and I think he was serious, that it was necessary for safety. Former residents of Oregon claim it is a jobs program. I suspect it is both (there is always someone who wants and supports silly and unnecessary safety rules.)

I live in New Jersey, which pretty explicitly admits the full-serve gas station requirement is to create jobs. We have lower gas prices than Philadelphia, though, at least where I live, because our gas taxes are significantly lower than theirs.

The gas stations I go to tend to be staffed by middle-aged immigrants rather than teenagers, but there's not much difference in the quality of service.

I looked at the issue of copyright of state-created works and found the following:

Most states take the position that works produced by their Governmental agencies are subject to copyright, and that state officials may assert that copyright for any legitimate public purpose.

For example, the Texas Attorney General has opined that a map produced by a Port Authority may not be withheld from a requester under a public records request, but that nothing prohibits the Port from suing the requester if the requester subsequently uses the map in a way that violates the Port’s copyright. Open Records Decision No. 660

In a similar vein, Colorado Statues 24-72-203(4), part of the state’s public records law, says “Nothing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record.”

Florida may have taken a contrary position. Obviously this isn't an exhaustive survey.

The justifications for enforcing a state’s copyright seem to be:
1)The work can be sold, thereby defraying the cost of producing it, and/or financing other government operations.
2)Republication of government works might introduce errors. By regulating republications (which can only be done through copyright licensing), government officials can reduce the incidence of such errors, thereby improving public access to those works.
3)If data in a work is incorrect, or is incorrectly interpreted or applied, the government might be held liable for resulting harms. I was not able to find any concrete example of how this might occur, much less an actual or threatened claim against a government on this theory.
4)Information collected at public expense ought not to be used for making private profits.
5)Terrorists or criminals might misuse the data contained in the work (for example a map showing where pipelines are located), or that data invades citizens’ privacy (for example, showing the exact location of private houses).

None of these arguments strike me as convincing. The first one is plausible, but my sense is that the amount of revenue available from such publications is small. On the other side, copyright claims, like secrecy claims, in public documents are subject to abuse – the sort of concerns that generally drive open records laws. Further, since the marginal cost of copyright licensing is zero, charging any fee will result in some economic loss to society as a whole. Given the relatively small benefit, I am inclined to think a bright line rule waiving state copyrights makes the most sense.

A note about item 5). This is the rationale that the Soviet Union used to classify *all* maps of its territory, except for those of extremely large scale. I cannot think of a way to measure it, but my sense is that such a restrictive policy leads to very large economic losses from drivers getting lost and the like. If private parties can easily determine, for example, if there is a pipeline nearby, they can more easily decide whether to live in a particular spot, and how dangerous it is to be digging, blasting and the like. To the extent this is a real concern, it probably makes more sense to address it as an issue of public safety / national security, rather than one of intellectual property.

I never considered the possibility of a federal statute denying copyright protection to States. I would not be in favor of that, because my main point is that enforcing governmental copyrights seems to be a bad way of advancing governmental goals, state or federal. Federalism concerns make me think that it is better to let each government decide this for themselves.

PDXLawyer,

Oregon is claiming a copyright in the *numbering* and arrangement of the statutes

Surely the numbers are part of the statutes, or at least an inherent part of their organization, and thus factual, are they not?

Kirk, you asked:

Surely the numbers are part of the statutes, or at least an inherent part of their organization, and thus factual, are they not?

Actually, not. The Legislature does not assign the numbers in the Oregon Revised Statutes. The numbers are assigned (and the statutes are organized) by the Legislative Counsel. It is an odd arrangement. You may question why the work of, say, the Clerk of the House of Representatives, who alters the text of a bill to conform to an amendment duly passed is a "fact" while the work of the Legislative Counsel, who adds numbers which are in practice required to cite the statute are not a "fact." Both the Clerk and the Counsel, after all, work for the Legislature. The argument would be that the Clerk's work is not "creative" while Counsel's is.

I was spending the day at the Hong Kong High Court -- that's how I hang -- when I decided to check out the law library.

That's when I learned, to my jaw-dropping amazement, that law libraries in some British-derived systems are closed to the public. Only barristers and students could freely enter. And this is the law library in the courthouse .

What a racket -- but the barristers' robes looked cool.