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Oregon Attorney General's Office Claims Copyright in

the Attorney General's Public Records and Meetings Manual; now a University of Oregon Economics professor, Bill Harbaugh, has posted the manual online, giving the Attorney General's office a heads-up. It will be interesting to see the results.

I should note that the Copyright Act specifically provides that works of the federal government are in the public domain, and longstanding copyright law decisions say the same about state court decisions, but in principle the Copyright Act does not preclude other state agencies from owning copyrights in works that they've created (though it's possible that the fair use doctrine might authorize pretty broad copying of at least some such works). I take it that Prof. Harbaugh's argument is that the Attorney General's office shouldn't assert copyright, not that it is legally precluded by copyright law from so asserting it. And I take it that he is counting on the Attorney General's good judgment and good political sense, and not on any legal doctrine, to protect him. Jeff Mapes, a columnist at the Oregonian, reports further; thanks also to Mark Thoma for the pointer.

einhverfr (mail) (www):
I think Constitutionally, our state and federal governments could not hold copyrights because that would violate the requirement that these further the useful arts.

This does NOT preclude government contractor from holding copyrights, nor does it preclude aggregating these into a larger work as a whole which would have to be licensed in ways the contractors would approve, of course (like the SELinux patches).
9.17.2009 4:57pm
Bill Poser (mail) (www):
In contrast to the US, Canada asserts Crown copyright in documents produced by the federal government. The licensing revenue generated is trivial. The principal use of Crown copyright is to prevent the widespread distribution of reports considered embarrassing by the current government. Abolition of Crown copyright has been proposed by many of those who have commented in the recent round of discussion of copyright reform in Canada, perhaps most prominently by Michael Geis, but it remains to be seen what the government will do. Hitherto its main interest has appeared to be ingratiating itself with the large American music and movie companies.
9.17.2009 5:02pm
Bill Poser (mail) (www):
That should be "Miichael Geist".
9.17.2009 5:03pm
Steve:
I could understand a claim of copyright designed to preclude private entities from making a profit by distributing government work-product which was already paid for by the taxpayers.
9.17.2009 5:08pm
Fub:
I take it that Prof. Harbaugh's argument is that the Attorney General's office shouldn't assert copyright, not that it is legally precluded by copyright law from so asserting it. And I take it that he is counting on the Attorney General's good judgment and good political sense, and not on any legal doctrine, to protect him.
Heh. According to Mr. Harbaugh's comments at the Oregonian story you linked, his download server is being slashdotted, but is holding up.

I don't know what triable issues of fact might arise in any suit Kroger might bring. But I can't imagine any AG in his right mind wanting to put such an fundamentally and transparently wrongheaded suit in front of a jury.

No doubt if Kroger proceeds, plenty of mirrors will appear. Some of them will likely be unreachable by anything but extraordinary legal process, not to mention extraordinary investigation to locate the principals.
9.17.2009 5:16pm
Bill Harbaugh (mail) (www):
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

This quote, from a lawyer named James Madison, is prominently displayed right on the cover of the very public records manual the AG's office had warned me not to redistribute. So I figured I'd hire this Madison guy to defend me in court, if it came to that.

Then I learned from wikipedia that he was never actually admitted to the Bar. Oh yeah, also that he's dead. Seems like his legacy needs to be resurrected too!
9.17.2009 5:21pm
PatHMV (mail) (www):
Monty Python himself couldn't have written a better skit!
9.17.2009 5:30pm
einhverfr (mail) (www):
Steve:

I could understand a claim of copyright designed to preclude private entities from making a profit by distributing government work-product which was already paid for by the taxpayers.


I don't think that holds up. If anything the lack of copyright would force profits down to marginal levels if that ever came up.

Certainly a lot of private companies make money off the NSA's Linux patches.....
9.17.2009 5:30pm
Splunge:
Wait...copyright is meant to encourage the production of stuff. We want to encourage government to print more rules, regulations, discussion, policy manuals?

Good God, that way lies madness.
9.17.2009 5:34pm
Steve:
I don't think that holds up. If anything the lack of copyright would force profits down to marginal levels if that ever came up.

That's how it works in an economic model. In the real world, a lot of people manage to skim money off selling people information that the government makes available for free.

In theory, virtually no activity should be profitable beyond marginal levels. In practice, not so much.
9.17.2009 5:40pm
road2serfdom:
"In theory, virtually no activity should be profitable beyond marginal levels. In practice, not so much."

No activity should be economically profitable (though it can have accounting profit), in the long run, with no barriers to entry. Not sure what you meand by "marginal levels".
9.17.2009 5:48pm
wekt:

I could understand a claim of copyright designed to preclude private entities from making a profit by distributing government work-product which was already paid for by the taxpayers.

That doesn't make any sense. If companies are being dishonest, then they should be prosecuted for fraud. If the gov't is ineffective in distributing the works that it produces, and a private company does a better job in providing people with these works, then there is no reason why said private company shouldn't make a reasonable profit.
9.17.2009 5:53pm
Jimmy S.:
I think Constitutionally, our state and federal governments could not hold copyrights because that would violate the requirement that these further the useful arts.


How about academics at state-run universities?
9.17.2009 5:56pm
awoluiwalifhaiwh:
Professor Volokh said: "and longstanding copyright law decisions say the same about state court decisions"

Can you provide a pointer? I've never heard that states are barred from enforcing their copyrights in government documents. I may be incorrect, but I was under the impression that whether a state waived ownership was a question of individual state law and not judicial interpretation.
9.17.2009 5:59pm
Bruce Hayden (mail):
This is a can of worms. Do they have a Work for Hire? If not, then the bureaucrats and legislators would own the copyrights. But I am not sure if they all fit under Work for Hire.
9.17.2009 6:00pm
awoluiwalifhaiwh:
Please ignore my last comment. I see that you were speaking about "state court decisions" and not other state government documents. My apologies.
9.17.2009 6:01pm
Oren:


How about academics at state-run universities?

(1) Copyright on academic works are held by the individual profs.

(2) The NIH requires (per statute) that any research funded (in any part) by NIH funds be licensed to PubMED.
9.17.2009 6:04pm
Ben P:

I think Constitutionally, our state and federal governments could not hold copyrights because that would violate the requirement that these further the useful arts.

This does NOT preclude government contractor from holding copyrights, nor does it preclude aggregating these into a larger work as a whole which would have to be licensed in ways the contractors would approve, of course (like the SELinux patches).


I think you're almost certainly correct with regard to government produced materials. But let me set up a hypo and I'll let you or someone else tell me how it fits into what you said.


Suppose Company X (or even person X) holds the copyright in a work, and through some set of circumstances, of all of Company A's property (asset forfeiture perhaps or as some sort of tax lien) including this "copyright."

I realize the most typical practice is simply for the government to auction such things off as quickly as possible, but what's the status of a copyright that's come into the ownership of the government?
9.17.2009 6:18pm
PatHMV (mail) (www):
To confuse issues a bit, inspired by Ben P's comment, let me point out that not all federal government documents are entirely free of copyright. None of the government-produced portions are subject to copyright, but they do occasionally license material (photos, film clips, etc.) from third-parties, and those licensed materials do not fall into the public domain simply because the government is the one who licensed their use for a limited purpose.

A common controversy in this area is the fact that most local governments, if and when they adopt building or similar codes, adopt by reference the requirements of some standards body. The standards body owns the copyright to the model codes they produce, and they do not generally approve of the local government making their works freely available to the public. However, the public is subject to those codes; the code itself becomes part of the law, but neither local law nor state FOIA laws, of course, can trump the copyrights granted by federal law and international treaties. Quite the conundrum.
9.17.2009 6:35pm
milton (mail):
oren -

i'm not so sure about this. the definition of works made for hire includes works created by employees in the course of their employment. i see no statutory reason that acdemic articles, which are after all well within the scope of an academic's employment, would be exempted.

now individual institutions may choose to assign those rights back to their authors, or more likely ignore their status as works made for hire. but a blanket statement that all academics own the copyright in their academic writings is not supportable.
9.17.2009 6:37pm
gullyborg (mail) (www):
This is the same Oregon that says Oregon Revised Statutes are subject to copyright - and published them for free on the internet.

Oregon blogger Jack Bogdanski has written extensively on this subject (of statutes - haven't checked for the AG manual on his blog yet).
9.17.2009 6:50pm
einhverfr (mail) (www):
Steve:

That's how it works in an economic model. In the real world, a lot of people manage to skim money off selling people information that the government makes available for free.


I dunno about you but I have paid private companies for all sorts of government-produced stuff, for example the FSI's language courses (which are excellent). However the beauty of the economic system is that now all that stuff is available free of charge over the internet.

That's actually pretty cool when you think about it. Corporations, like other tax payers, can use these materials as they see fit.
9.17.2009 6:50pm
einhverfr (mail) (www):
Ben P:


I realize the most typical practice is simply for the government to auction such things off as quickly as possible, but what's the status of a copyright that's come into the ownership of the government?


I am not sure. I suppose if the purpose were simply to collect debts and hence the ownership were transitory, then I don't think the status of the copyright would change since that is still within the Constitutional mandate.
9.17.2009 6:52pm
gullyborg (mail) (www):
link to Jack Bog on topic is here.
9.17.2009 6:55pm
PatHMV (mail) (www):
einhverfr is correct. The federal government is not prohibited from owning copyrights. It's just that the definition of "works" which are capable of being copyrighted specifically excludes anything produced by the federal government or its employees (in the course and scope of their employment). There's nothing stopping the federal government from buying (and then subsequently enforcing) the copyright to some privately-created work.
9.17.2009 7:00pm
EH (mail):
I was going to find a link to a list of public domain literature in modern english (i.e. not translated) that are sold regularly day after day, for profit, but then I came across a particular lin that made my head explode with irony.
9.17.2009 7:04pm
einhverfr (mail) (www):
PatHMV:

A common controversy in this area is the fact that most local governments, if and when they adopt building or similar codes, adopt by reference the requirements of some standards body. The standards body owns the copyright to the model codes they produce, and they do not generally approve of the local government making their works freely available to the public. However, the public is subject to those codes; the code itself becomes part of the law, but neither local law nor state FOIA laws, of course, can trump the copyrights granted by federal law and international treaties. Quite the conundrum.


My own opinion is that due notice requirements should prevent this sort of thing, but the court don't agree with me on this.
9.17.2009 7:04pm
Dave N (mail):
I should note that the Copyright Act specifically provides that works of the federal government are in the public domain, and longstanding copyright law decisions say the same about state court decisions[.]
Which is why West Publishing Co. will disclaim any copyright in the actual court decisions, but only claim copyright in the headnotes, the summary, and, believe it or not, the actual page numbers in the West Reporters.
9.17.2009 7:35pm
Kazinski:
The Veeck decision dealt with the issue of whether copyrighted material when adopted as the law, retains it's copyright protection.

In this case SBCCI provides model building codes to local and state governments to adopt as the law in their jurisdictions. The license agreements with these political subdivisions prevent them from freely disseminating the codes to the public. They are likely available for inspection, but the only way the codes (the law) are effectively available to contractors or do-it yourselfers is to pay SBCCI for a copy.

The Veeck decision is law only in the 5th circuit, so in most of the country you have to pay SBCCI to find out what the law is.
9.17.2009 7:52pm
New Pseudonym (mail):
There are exceptions to the general rule that the federal government does not hold any copyrights. Although I don't have a cite to the USC, at least the Air Force asserts a copyright to unit emblems (insignia, patches). When a unit is active, the copyright is held by the unit commanding officer. When it is inactive, it reverts to the AF Historical Research Agency.
9.17.2009 7:58pm
PatHMV (mail) (www):
17 USC s. 105:

§ 105. Subject matter of copyright: United States Government works

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.


17 USC s. 101:

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person's official duties.


I'm not aware of any exceptions for military logos. A brief Google search revealed a few pages where the Air Force Reserves were asserting a copyright, but I find no place discussing their legal right to do so.
9.17.2009 8:11pm
Roger Schlafly (www):
If I were his lawyer, I would suggest that he not say, "Illegally posted by UO Professor Bill Harbaugh" on his web site. There are some available arguments for the legality for what he did, and he is crazy to concede that it is illegal.
9.17.2009 8:54pm
Milhouse (www):

Which is why West Publishing Co. will disclaim any copyright in the actual court decisions, but only claim copyright in the headnotes, the summary, and, believe it or not, the actual page numbers in the West Reporters.

The page numbers can't possibly be copyright. What spark of creativity could they claim was involved in numbering pages sequentially?
9.17.2009 8:55pm
Soronel Haetir (mail):
I suspect that if SCOTUS ever takes up the building codes issue they will come to the same conclusion as the 5th circuit. Although I do note that plenty of states assert copyright ownership over their statutes. Even if the copyright itself were upheld, I would think that fair use of the law would be so permissive that the entire work could be used.
9.17.2009 8:56pm
Tritium (mail):
If part of his responsibilities as attorney general was to create such documentation, then the ownership of such belong to the people of Oregon. They did pay him during that time, and was part of his responsibilities. Any proceeds this might earn belong to the people of that state.

Though the federal constitution states that authors and (scientists? Forget the word used in it) limited exclusive rights to their own work for a limited time, a person employed for that purpose wouldn't necessarily be counted if the time he researched was compensated.

At the same time, one could even argue that the profits of a company intended to fund such research belonger to the consumer, for the higher cost of a previously purchased product could entitle them to rights.

But today, we hide the possibility for a select few to retain rights to anything. But when it comes to federally funding research for green energy, the people hardly are considered as part owners. Instead, a few wealthy people profit off of contributions made from an unwilling public.
9.17.2009 10:46pm
Bill Harbaugh (mail) (www):
To Roger Schlafly:

I appreciate the advice about removing the "illegal" from my blog post. I talked with the AG's spokeperson today, for a long time. He is not very happy about all the publicity this has garnered, to put it mildly, and I am very sure he and his boss are really hoping not to see any mention of it on volokh or slashdot for a long, long time.

While he didn't come out and say that Attorney General Kroger had caved on this issue, he didn't reiterate any of the previous warnings, either. So, I think I'm OK, and I guess I'll leave that illegal bit up!

Bill Harbaugh
9.17.2009 11:39pm
Kazinski:
Congrats Prof. Harbaugh on making the AG back down. I wonder though how their assertion of copyright on public documents conforms with Oregon's Sunshine law.


ORS 192.410(4)(a) says that a public record includes any writing that:

* Contains information that relates to the conduct of the public's business
* Is prepared, owned, used or maintained by a public body
* Regardless of physical form or characteristics.


Seems to me that the AG is violating Oregon's Sunshine law by asserting copyright to restrict the free flow of information about the "conduct of the public's business".
9.18.2009 12:07am
pbf (mail) (www):
I don't think statutory compilations or other government documents even can be copyrighted. The reasons may well include, among others, that these are compilations of facts.

L. Ray Patterson and Craig Joyce, in MONOPOLIZING THE LAW: THE SCOPE OF COPYRIGHT PROTECTION FOR LAW REPORTS AND STATUTORY COMPILATIONS, UCLA L. Rev. 719,722 (1989), wrote the following:

Wheaton v. Peters, 7 in 1834. Wheaton held that opinions of the Court are not copyrightable, and that holding remains the law. 8 Subsequent cases 9 and the present copyright act 10 reinforce and expand upon the point: the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself.

n7. 33 U.S. (8 Pet.) 591 (1834). For the background to the case, see Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291 (1985), and Joyce, Wheaton v. Peters: The Untold Story of the Early Reporters, 1985 SUP. C. HIST. SOC. Y.B. 34. Subsequent references are to the first-specified article.
9.18.2009 7:31am
einhverfr (mail) (www):
pbf:

I don't think statutory compilations or other government documents even can be copyrighted. The reasons may well include, among others, that these are compilations of facts.


Compilations of facts are not protected by copyright.

Now, if I publish The 100 Greatest Supreme Court Cases Ever then presumably that would be subject to copyright in selection, ordering, etc. But that is a different thing and I don't think that the mere cases themselves would be protected if copied out of the book. Instead only the selection, commentary if applicable, and ordering would be.
9.19.2009 5:25pm
einhverfr (mail) (www):
pbf:

Also see Hyperlaw v. West Publishing (2nd Circuit 1993)
9.19.2009 5:45pm
Bob Goodman (mail) (www):
I'm outraged that the Street Finder, a book tabulating election districts by address, on its cover asserts that unauthorized reproduction is prohibited. The Board of Elections isn't supposed to make money off the sale of these public records, but only to recover their costs, and if someone else can do it cheaper, why not?
9.19.2009 10:33pm
Becky Dale (mail):
In 2004 I researched this subject and wrote an article on it. Virginia Lawyers Weekly published it. It's not on their website any more but it's still online here.

In Microdecisions v. Skinner, a 2004 case after my article was published, a Florida court denied copyright for GIS maps, saying public records law overrides an agency's ability to claim copyright unless the legislature has expressly authorized an exemption.
9.21.2009 3:16pm

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