Free Access to Law: State Codes

-- By StephenHorton - 16 Oct 2014

A Brief History

In the late 1980s and early 1990s, when what has come to be known as the Internet was still in early development, there was no significant source of free legal information online. Online legal publishers, government and private sector alike, universally charged for access. But that began to change in 1992 when Thomas Bruce and Peter Martin, two Cornell Law School academics, founded the Legal Information Institute, which provided free access to U.S. legal materials. Soon after, other projects all over the world followed in Cornell’s footsteps (many borrowing the “LII” name).

In 2002, Cornell LII and six other similar projects came together and 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 thus far, 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.

The Copyright of Law

While § 105 of the Copyright Act forecloses copyright protection for works prepared by federal employees in their official capacity , it is silent on whether the works of the states can be copyrighted. Taking advantage of this silence, several states have claimed copyrights of their statutes. Perhaps even more problematic, the states that outsource the codification process to companies like LexisNexis and West Publishing Co. are often contractually required to surrender all of the intellectual property in the resulting state codes. This leads to conglomerates owning copyrights in state statutes, which is unacceptable.

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). The reason for such a rule is obvious: otherwise, everyone accused of a crime could simply say that they didn’t know their actions were illegal in order to escape punishment. But, that foundation works only if people can actually access the law. Due process demands that state statutes are not copyrightable and therefore freely accessible to all those who live in the United States. Moreover, 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, even if we assume that rote work like pagination or annotating codes with cases that have cited to them involves enough independent creativity in order to warrant a copyright, the protection of the published code is functionally an inequitable copyright of the underlying statute. 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.

Conclusion

The Free Access to Law Movement has not yet waged a proper or successful campaign against the copyright of state codes. In order to begin to do so, they should explicitly and powerfully condemn the copyright of such codes by public bodies as well as contracted publishers in an amended Declaration. Furthermore, the Movement should publish a free license in the mold of the GNU General Public License for states to use in their contracts with private publishers. As we have seen in the Free Software Movement , such a license can and will protect the right of the people to access information that is rightfully theirs.