-- By StephenHorton - 16 Oct 2014
In 2002, Cornell LII and six similar projects created the “Declaration on Free Access to Law,” which has subsequently been amended. This declaration was meant to set forth principles they believed to be crucial in the promulgation of free legal information and created the Free Access to Law Movement, which now has 45 members across the globe.
The Free Access to Law Movement and the Declaration on Free Access to Law are admirable and have been highly successful, but the Declaration does not directly address an issue that has plagued American law—copyright of public law. For the vast majority of the world, case law and legislation are exempt from copyright, as allowed by Article 2(4) of the Berne Convention for the Protection of Literary and Artistic Works. This is not true in the United States.
Regardless of the claims of states that believe they can enforce copyright claims (whether or not they choose to do so), the plain texts of state statutes are certainly not properly copyrighted. First, the Supreme Court stated that in the context of judicial opinions, “(j)udges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .” Banks v. Manchester, 128 U.S. 244, 253 (1888). The rationale that the law is in the public domain applies even more strongly to legislative works, since such works were created by popularly elected officials. Therefore, the people of the state in question constructively created the statutes that the state enacts.
Secondly, a fundamental tenet of American law is ignorantia juris non excusat (ignorance is not an excuse for violation of the law). It is absolutely true that no one can possibly know even a significant fraction of one state’s laws. It is also true that no one actually believes that any person has total knowledge of all legal provisions relevant to his or her behavior, just like no one actually believes that a corporation is a person. But the fact that no one can know all law is exactly why access to law is so crucial. Any legal system would fall apart if a simple lack of knowledge of the relevant legal provision were enough to be exculpatory, and even if that reasoning isn’t morally satisfying, it has enough practical power to justify ignorantia juris non excusat. The legal fiction exists for the same reason all legal fictions exist: because they need to in order to make the system function. Because of that necessity, everyone must have the means to find out law, even if they don’t contain all legal knowledge in their mind at all times. Due process demands that state statutes are not copyrightable and therefore freely accessible to all those who live in the United States. Furthermore, knowledge of the law is mandatory for a functioning litigation system based on an adversarial process. When only one side knows the rules to the game because an average citizen was unable to access the relevant statute, it will lead to (increased) domination of the poor by the wealthy and the promulgation of bad law.
The states and publishers argue that the process of compiling the codes, paginating them, and adding annotation adds the requisite creativity in order to warrant copyright protection under the Copyright Act. This position is indefensible. Publishers do not exercise the requisite creative influence in compiling state codes to warrant protection under current law. Unlike a treatise on a state’s code (or, stepping outside the legal field, a literary anthology), publishers of state codes do not exercise discretion by choosing to include certain statutes and leaving out others, nor do the codes have commentary scattered among the included provisions. However, it must be acknowledged that there is a weakness to my argument when it comes to the adoption of copyrighted codes by resource-strapped towns and cities (like municipal building codes) that were created by proprietary publishers. Such creation certainly includes the requisite creativity to warrant copyright protection under the Act.
However, at bottom, the protection of the published code is an inequitable copyright of the statutes that govern citizens' behavior. This is a destruction of an inherent right vested in the people—that of Constitutional Due Process, as discussed above. But, on a broader scale, this is a matter of fundamental justice. People have a right to whatever information they want, especially when that information is the skeleton of society.