Oregon: A Clash between Copyright and Open Access
Dames, K. Matthew, Information Today
There's a notion that "Government information is not protected by copyright."
Of the many copyright myths that have gained traction, that one notion is among the most enduring.
Earlier this year, the state of Oregon challenged this myth and its presumptive inviolability when its legislative officials attempted to claim copyright protection for information related to its statutes. The controversy brought into focus those issues that lie at the junction of copyright law, open access (OA), and public policy. The story also ultimately calls into question how a government raises or maintains revenues without raising taxes during a time of increasing economic stressors and shortfalls.
The Oregon Story
Oregon's legislature publishes its law in a compendium called the Oregon Revised Statutes (ORS). According to the preface for the electronic ORS, the state's Legislative Counsel Committee is the body responsible for its publication. Justia (www.justia.com) is a Palo Alto, Calif., company that makes legal resources freely available to the public, including case law, codes, and regulations. ORS is among the state codes to which Justia provides access (http://law.justia.com/oregon/codes), and it does so by reproducing Oregon's statutes on its website.
There are practical reasons why a person may prefer to use Justia's version of ORS instead of the committee's official online version. Arguably, Justia's presentation of ORS is more accessible than the committee's online presentation of the same information (www.leg.state.or.us/ors). Where Justia's layout is simple, clean, and readable, the committee's website has a number of basic online presentation problems, including an inelegant and complicated searching mechanism and the use of frames.
In April, Oregon legislative counsel Dexter Johnson sent Justia a letter titled "Notice of copyright infringement and demand to cease and desist." In the letter, Johnson claimed that the version of ORS that Justia posted contained copyrighted material that was owned by the Legislative Counsel Committee of the State of Oregon (the "Committee"). The letter claimed the committee was claiming copyright protection not over the statutes themselves, but instead "the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables the index and annotations and such other incidents as are work product of the Committee in the compilation and publication of Oregon law." (A full copy of the letter is available at www.tinyurl.com/3zzphf.)
Upon receiving the letter, Justia's Tim Stanley inquired about licensing ORS and was told that the license fee was about $30,000 for 2 years.
Stanley did what many people now do when served with what seems to be an outlandish copyright infringement claim: He blogged about it. Stanley's April 19 blog post on the Justia website shot through the web's legal community at warp speed, partly because of his positive reputation in legal information circles. Stanley was a co-founder of FindLaw, which was one of the web's highest trafficked legal websites when he and partner Stacy Stern sold it to Thomson West (now Thomson Reuters) in 2001. Stanley also is well-known in Silicon Valley, having graduated with bachelor's and master's degrees from Stanford University and having raised at least $11 million in angel or venture capital funding for FindLaw in the late 1990s. In short, Stanley's involvement with the matter was able to bring the copyright and public policy aspects of this issue to light in a way that likely would not have occurred had Oregon served its letter on another, less well-respected party.
Throughout the episode, Oregon officials faced another problem besides the positive reputation of the man they approached: Their copyright claim may have been weak.
Copyright in Government Works
Interestingly, the shakiness of Oregon's copyright claim has little to do with the aforementioned myth about government information. …