For the "This Really Burns Me Up" File:

The State of Oregon, bless its heart, has begun sending out cease-and-desist letters to websites like Justia and Public.Resource.Org, demanding that the sites take down copies of the Oregon Revised Statutes posted there on the grounds that the posting infringes the State's copyright in the statutes.

Hard to believe, but apparently true. [See Cory Doctorow's posting on Boing Boing, and the story from TechDirt, along with accompanying documents.

The copyright claim is (like a lot of copyright claims these days) probably about 98% horse manure. They're not asserting copyright in the text of the laws themselves, but in the "arrangement and subject matter compilation," the numbering of statutory sections, and the various "tables, indices, and annotations" contained in the documents. Lots of that stuff is simply not copyrightable -- and even as to the stuff in which there might be copyright protection, what makes the State of Oregon so sure that it, and not the various individuals who authored particular sections, owns the copyright to those contributions?

But that's not what burns me up, of course. What burns me up is that the State of Oregon would choose to assert its rather fanciful copyright claim for the purpose of making public access to the authoritative version of its laws more, rather than less, difficult. It is completely outrageous that in 2008 we do not have a complete and authoritative compendium of all of the laws of the 50 States, and the federal government, available at no cost on the net. Oh, did I mention that Thomson-West Publishing publishes and sells the Oregon Revised Statutes (and makes it available, for a fee, over its Westlaw service)? My colleague Peter Martin, of the Cornell Legal Information Institute, has been working on this problem for years and years, and has made some, but far too little, headway -- though I hope he keeps fighting the good fight on this front.

[Thanks to George Byrd for the pointer to this story]

Just Saying:
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.
5.9.2008 11:47am
Chris 24601 (mail) (www):
The Fifth Circuit considered the issue en banc regarding municipal codes in Veeck (5th Cir. 2002).
5.9.2008 11:52am
John (mail):
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).
5.9.2008 12:04pm
Brian E:
Chris 24601: thanks for the excellent pointer. Fortunately the fifth circuit decided this case intelligently, but the dissents also belong in the "This Really Burns Me Up" file. The implicit presumption there and in Oregon's action is that open access to the law is only as important as a principle as copyright law itself, and concerns of the latter may override concerns of the former. This is probably the silliest example yet of the overstatement of the importance of copyright, which is an intellectual disease that seems to be affecting a lot of politicians of late.
5.9.2008 12:16pm
fyi, WA state has a very good online revised code of washington site...

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

i use it all the time
5.9.2008 12:23pm
Brett Bellmore:
Hey, ignorance of the law isn't merely no excuse, it's convenient for the government. Makes it easier to nail anybody they want to go after, if avoiding breaking some law or other is made harder by making the laws more obscure.
5.9.2008 12:30pm
PDXLawyer (mail):
Oddly, the state of Oregon also has a free website (with no ads and no registration requirement) that provides the exact same information.
5.9.2008 12:35pm
Wisconsin also has a fantastic online, searchable annotated code. The only real complaint I have about it is that the legislative history only goes back to 1975.

Wisconsin Statutes
5.9.2008 12:36pm
I have no life so I just love reading statutes (mail):
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:

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?)
5.9.2008 12:46pm
DiverDan (mail):
Frankly, since copyright can ONLY protect "the mode of expression", and not factual information, I don't see how the State of Oregon can even arguably claim a copyright in the text of statutes, which, once enacted, become "operative facts", and not merely one of several available alternative modes of expressing state law. Just as copyright cannot be used to limit the republication of mathematical formulae in a math or engineering text, or a list of phone numbers in a phone book, it can't be used to limit republication of operative state law in the form of legislatively enacted statutes or codes. This seems to be the work of lawyers from the State of Oregon who are either very weak on the intricacies of copyright law, or relying upon the fact that most people simply assume that copyright provides blanket protection for any and every original work of authorship, which is simply not the case.

As an Aside, while I pay for LEXIS service for all Texas and Federal Libraries, I hate paying LEXIS "outside of contract" rates when I have the occasional need to know about out-of-state statutes and rules. I have almost always been able to find these sources free of charge on the State Legislative websites (for statutes and codes) and the State Supreme Court websites (for State Court rules), and the State Home Page for those states that I've looked to will usually provide links to the right pages for statutes, rules, even agency regulations. I haven't tried this for all (or even most) of the States, but when I've taken the time to look, I haven't been disappointed. Is this not true in Oregon?
5.9.2008 12:46pm
Grant Gould (mail):
And yet lawyers wonder why us civilians think the law is a racket.
5.9.2008 12:47pm
Patrick Wright (mail):
5.9.2008 12:49pm
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.
5.9.2008 12:52pm
PDXLawyer (mail):
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.

As a general rule, I never ascribe to malice that which may be explained by incompetence, and I expect that rule applies here.
5.9.2008 12:54pm
"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
5.9.2008 1:00pm
Ex parte McCardle:
The first sentence of Kafka's "The Problem of Our Laws":

"Our laws are not generally known; they are kept secret by the small group of nobles who rule us."
5.9.2008 1:03pm
I have no life so I just love reading statutes (mail):
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.
5.9.2008 1:19pm
Seriously, shame on Oregon. This is in the tradition of Nero.

whit, New Jersey doesn't let people pump their own gas, either.
5.9.2008 1:29pm
Cornellian (mail):
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.
5.9.2008 1:41pm
Stephen C. Carlson (www):
Actually, the Feist case held the opposite: the alphabetical arrangement of a telephone book lacks even the modicum of creativity necessary to be copyrightable.
5.9.2008 1:41pm
PDXLawyer (mail):
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. . ."
5.9.2008 1:46pm
pete (mail) (www):
Can someone explain the no pumping gas law for me? Who benefits from it? I would think that the filling stations would be opposed since it would increase their labor costs and consumers would be opposed because those costs would passed onto them through higher prices.

I have heard of this rule, but have never actually seen it in practice as I have never been to Oregon and have spent less than 24 hours in New Jersey. Do you still pay at the pump with a credit card? What if you need gas at 3 a.m.? Do the legislators and citizens never travel to other states and see that even a smart chimp could be taught to pump gas properly?

There are a couple filling stations here in San Antonio that do not have an attached store and are fully automated.
5.9.2008 1:52pm
PDXLawyer (mail):

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).
5.9.2008 1:55pm
One of the things I'm most proud of Ohio for is being so out-in-front on technology issues and open-access issues in its laws and court systems. In Ohio, you have:

1. A free, official compendium of the Ohio Revised Code and the Ohio Administrative Code.

2. A public domain judicial opinion posting system that applies to the Ohio Supreme Court and the Ohio Courts of Appeal, in a searchable database also free to the public.

3. Public court docket systems throughout the state, with about 30% providing PDF access to all documents in court files.

4. One of the first Federal District Courts in the country to adopt PACER, ECF, and online case filing (the Northern District of Ohio), plus one of the first Federal District Courts to adopt a 'digital courtroom.'

There's a lot my state does wrong, but this is one area that's really good.
5.9.2008 1:55pm
Bill Poser (mail) (www):

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....
5.9.2008 2:11pm
Sigivald (mail):
Whit: Don't blame the Oregon government alone for the "no self-serve" law. The population as a whole doesn't support removing the ban enough to get it repealed (the last time I can find documentation of a ballot measure for it coming up was 1982, but I swear I recall a much more recent one, or perhaps it was a bill in the State legislature, and the polling was sufficiently against it that it never went anywhere).

Pete: It's a full-employment act for high-school kids. Yes, you can pay at the pump with a credit card, and you can get gas at 3 AM... if you can find a station that's open. Not hard by the freeway, can be difficult other places.

And yes, everyone in Oregon is aware that people can pump gas properly - but apart from the "full employment for high-school kids" aspect, they propose ridiculous justification like "fire hazard" (dating back to the 50s, when gas was more volatile), and "oh, those amateurs who aren't untrained high-school kids making minimum wage, they'll spill a lot of gas and cause pollution!".

Nobody believes a word of it, of course.
5.9.2008 2:14pm
Whadonna More:

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?
5.9.2008 2:15pm
PDXLawyer (mail):

I agree, this is something for Ohio to be proud of. I've always found it annoying that the Federal Courts seem determined to make a few bucks off of PACER, rather than focusing on improving public access to court information. There's also an unfortunate dynamic between court clerks and local bars, who "consult" with the (good) result that procedures are convenient for the lawyers with high-volume practices in these courts (including large firms with docket departments), but the (inexcusable) result that others are faced with byzantine procedural/format requirements.
5.9.2008 2:19pm
Jim Rose (mail) (www):
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.
5.9.2008 2:19pm
Allan (mail):
Well, if this piques your interest, what about statutorilly required forms that are only available for purchase from a private company?

That was the case in Colorado. I wanted a release of liability for a second mortgage I had paid off. The statute said that the release could be on any form that met the requirements of the statute. But the County Clerk insisted on an "approved" form that was only available from a printer (in quantities of 100, I only needed one).

My second mortgage holder was from out of state, so it did not need more than a couple copies of the form itself.

IMHO, any form that is required by the state or endorsed by a public entity, should be available at no charge.
5.9.2008 2:21pm
David M. Nieporent (www):
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.
5.9.2008 2:24pm
PDXLawyer (mail):
Whadonna More:

Actually, no. West only recently came out with an annotated Oregon Revised Statutes and it doesn't seem to be a big seller. Oregon has a population of 3,000,000, so it isn't a very big jurisdiction, and the annotations are about 1% or less of what you'd find in an annotated US Code. The Oregon Legislative Counsel sells them in paperback, but they are expensive and you have to buy a new set every 2 years (no pocket parts).

For the last several years I've just relied on the Legislative Counsel's website - its free and relatively easy to use.
5.9.2008 2:27pm
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."
5.9.2008 2:46pm
Anderson (mail):
Before they left the City, the laws of the decemvirs, known as the "Twelve Tables," were engraved in brass and publicly exhibited; some writers assert that the aediles discharged this task under orders from the tribunes.

Apparently, it did not occur to the decemvirs to charge the public per viewing.
5.9.2008 3:00pm
I have no life so I just love reading statutes (mail):
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.
5.9.2008 3:08pm
Railroad Gin:
On a somewhat related subject, does anyone have any thoughts about standard jury instructions? In Arizona, the compilation of those have to be bought from the State Bar. Jury intructions are in effect just as much the law as a court opinion or a statute. And the state bar is a quasi-governmental organization. I would think they would not be entitled to copyright protection, but thats not the case.
5.9.2008 3:29pm
Mark Jones:
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....
5.9.2008 3:35pm
pcharles (mail):
Oh, did I mention that Thomson-West Publishing publishes and sells the Oregon Revised Statutes (and makes it available, for a fee, over its Westlaw service)?

Actually, Thomson-West publishes the print version of the Oregon Revised Statutes Annotated (ORSA), which is different from the official print version of the Oregon Revised Statutes. The Oregon Revised Statutes (ORS) is published every two years by the Oregon Legislative Council.

Come on, you should know the difference between and unofficial statutory code and an official statutory code. More often than not, official statutory codes are unannotated; however, the ORS happens to be annotated (although they stick the anntations in a separate volume which makes using them cumbersome).

There is a difference between the two. West adds value to the statutory code in that they provide annotations to the appellate case law and secondary sources. They also update the ORSA in a much better and more timely manner with annual pocket parts as well as multiple advance legislative services and interim annotation services throughout the year. The ORS does have annotations to the print code; however, they are relegated to a separate volume at the end of the set. I hate using the ORS.

Lexis makes an annotated version of the Oregon statutory code also for a fee.

The Oregon Administrative Rules (OAR) and the Oregon Bulletin are available for FREE on the Oregon Secretary of State's web site. As someone previously mentioned, the Oregon Revised Statutes (ORS) are available for FREE on the Oregon Legislature's web site.

I do agree that copyrighting statutory codes and administrative codes is cheesy and wrong. Don't even get me started with the Veeck situation where the Southern Building Code Congress International creates the model building code and pimps it to municipality to adopt but still retains a copyright to the code. The is a conflict between the circuits regarding the issue in Veeck.
5.9.2008 3:40pm
Tom G:
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.

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.
5.9.2008 3:42pm
Railroad Gin:
No doubt thats what most gas station owners would want to do if the law were repealed. But sooner or later one of them will figure out that he lower his price, attract more customers and actually make a bigger profit. This is pretty basic economics.

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

This is no more inane than requiring that a coffin be bought from a mortician or that you need a full-fledge cosmotology license to braid hair. Unfortunately every state has idiotic laws such as these.
5.9.2008 3:47pm
Mark Jones:
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.
5.9.2008 3:51pm
pcharles (mail):
Tom G.: Along those same lines, I hate it when most newspapers discuss a court opinion without giving the case name or docket number. How hard is it to put the actual case name?
5.9.2008 4:00pm
poi (mail):
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.
5.9.2008 4:09pm
Fred the Fourth (mail):
Another more recent historical example: Back in about 1970, a president of a homeowner's association contacted the Santa Clara (CA) County council office to request copies of the last ten years of county budgets. The initial reaction of the person on the other end of the phone?

I kid you not, and this is a quote: "I think that's classified."

(The budgets, of course, are published by the county every year. The pres was just trying to save time by going to the source, more fool he.)

Governments may be necessary, but they are not your friend.
5.9.2008 4:22pm
Kathi Smith (mail):
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.
5.9.2008 5:20pm
Borrowed Time:
Back in the pre-West days, I recall reading case law on FindLaw that still reflected the copyright notice of the site that originally put the material online. I'm not surprised that the same sort of aggregation has carried over to Justia from FindLaw, as it's a lot cheaper and easier to aggregate materials put online by others than it is to be the first to put it online, but I'm a bit surprised that something like this didn't happen sooner.
5.9.2008 5:44pm
PDXLawyer (mail):
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.
5.9.2008 6:09pm
Bruce Hayden (mail) (www):
Chris above has a link to VEECK v SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC., and it is worth reading here. That 5th Circuit case rejected copyright for privately created building codes enacted into law.

The problem for SBCCI there was that once a building code was adopted by a municipality into law, it essentially became a fact, and as we all know, facts are not protected by copyright. Add this to the fact that you cannot phrase a law differently than it is written, since every word counts with laws. So, no credit for organization, etc.

I can see how Oregon might make a case that its annotations might be protected by copyright - except that most of the annotations consist of the facts of when and how a statute is amended. Yes, there may be a small number of ways that this can be done, but once a scheme is developed, it is typically carried out uniformly. Thus, it is fairly close to Fiest's refusal to provide copyright on the alphabetical organization of a phone book.

The numbering and organization of the statutes is even worse in regards to copyright. Those numbers are the ones that you need to use to refer to the statute, in legal briefs, citations, etc., and are thus now facts. Displaying this organization in numerical order or the like is back to Feist and the alphabetized phone book. Some sort of truly original display might be protected, maybe. But numerical, alphabetic, or even Quoranic (i.e. by length) would not be protected.

What might possibly be protected by copyright are the case law annotations. Some editorial discretion and original expression is likely found in many such statute annotations. But strip them out, and nothing protected by copyright remains.
5.9.2008 6:11pm
pcharles (mail):
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.
5.9.2008 6:13pm
Kanchou (www):
Beside the issue of whether those information are available online. There are also the issues whether it's the "official" version that one can cite, too. And there are also the issue of authentication.

I know several of the people who worked on this project: "State-by-State Report on Authentication of Online
Legal Resources" by American Association of Law Libraries.


I believe those are of interested to people who frequent this blog.
5.9.2008 6:14pm
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.)
5.9.2008 6:18pm
Bruce Hayden (mail) (www):
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)?
Amending 17 USC may be out under federalism grounds (i.e. 10th and 11th Amdts.)

BUT, there is nothing keeping the states from doing just what the federal government did there. And, to some extent, the open records acts of some of the states have de facto done essentially that.
5.9.2008 6:18pm
Where do I send money for the legal defense fund?
5.9.2008 6:31pm
Jonathan F.:
Amending 17 USC may be out under federalism grounds (i.e. 10th and 11th Amdts.)

I don't think so. Copyright is an exclusively federal matter, and what Congress giveth Congress may take away. If, though, there were state-law copyrights parallel to federal copyright, then it would probably (though not obviously) be true that the federal government could not abrogate them. But there are not.
5.9.2008 7:06pm
"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.)
5.9.2008 7:21pm
A couple of days ago, as I saw yet another new warning sign on a gas pump (this one about static electricity), I remembered that my mother ran a small rural store with a gas pump for 40 years. Folks were pretty casual about filling up their cars. Up until sometime in the 1970s it was routine for folks to gas up their cars with the engines running and if they were smoking a cigarette or cigar most likely they would not bother to extinguish it. And you know what? Gas stations were not routinely going up in flames. Static electricity? Folks would have laughed in your face for worrying about that.

Yes, safety is important, but there is a point where some of this stuff just becomes silly.
5.9.2008 7:44pm
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.
5.9.2008 8:47pm
Duncan Frissell (mail):
Just the other day I discovered that the New York State Codes, Rules, &Regs were finally online (for free). The NJ Admin Code went up a year or two ago. Great for those of us too cheap for Lexis.

In NJ, we just give our credit cards to the attendant who runs them and pumps. Stupid law but we have cheaper gas anyway (refineries) so it doesn't really cost much.

Employment protection like the Jones Act and all those other laws that killed the merchant marine, shipbuilding, and port operations in the US.
5.9.2008 9:14pm
PDXLawyer (mail):
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.
5.9.2008 9:52pm
Ak Mike (mail):
One of the reasons states retain copyrights is to protect the works of scholars in state universities and scientists in other government departments.
5.9.2008 10:43pm
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?
5.9.2008 11:34pm
EPluribusMoney (mail):
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 get some kind of payment or perks for giving exclusive rights to one publisher. There was a federal case where one legal publisher sued another (I think one was Michie, maybe the other Thomson) and the court did a long historical opinion of why laws cannot be copyrighted. Then the parties settled and both parties asked the court to un-publish its opinion! And I think the second opinion says the first opinion is withdrawn. But it's out there.
5.10.2008 12:59am
PDXLawyer (mail):
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.
5.10.2008 1:41am
Tony Tutins (mail):
Ignorantia legis neminem excusat extra Oregon
5.10.2008 2:05am
Paul Karl Lukacs (mail) (www):
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.
5.10.2008 10:23pm
While one versed in copyright law can certainly wax poetic about state claims to copyright, I take a much more pragmatic approach. Publish the darn thing if you want and then wait for the fun when the state has to formally register its claim to copyright with the Copyright Office. Does anyone seriously believe that the state has even a remote chance of being able to name all of the "authors" (as it must for the registration to be valid and enforceable)? Throw in all of the authors who are not subject to work for hire and the situation becomes even more interesting.
5.11.2008 2:25pm