IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society.
Well, it is still a bit of a head-scratcher. Let me try to explain.
To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.
Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.
“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”
A favorite method of trying, as Ms. Samuelson and other legal scholars explain, is to copyright the accoutrements surrounding the public material. So while the laws and court decisions themselves may be in the public domain, the same is not necessarily true for the organizational system that renders them intelligible or the supporting materials that put them into context.
In other words: the beer is free, but you have to pay for a specially designed stein. (Of course, you could always choose to cup your hands.)
Into this maze of fuzzy law and competing ownership claims enters Carl Malamud, who for 15 years or so has used the Internet to liberate information that nominally exists in the public domain. He has pulled up federal court decisions, corporate filings to the Securities and Exchange Commission and, in an example of near performance art, the copyright registrations at the United States Copyright Office.
“So many people have been moving into the public domain and putting up fences,” he said in an interview from his office in Sebastopol, Calif., where he runs a one-man operation, public.resource.org, on a budget of about $1 million a year. Much of that money goes to buy material, usually in print form, that he then scans into his computer and makes available on the Internet without restriction.
Currently, safety codes for plumbers are “totally unavailable unless you pay $100 per copy,” he wrote in an e-mail message; a boiler safety code costs $13,000. (For that price, shouldn’t they throw in the boiler?)
As of Labor Day, he had put, he estimates, more than 50 percent of the nation’s 11 public safety codes online, including rules for fire prevention. “We have material from all 50 states, but we don’t have all 11 codes for all 50 states,” he said.
His financing comes from open-information advocates like the eBay founder Pierre Omidyar’s foundation and Google, but his goal is to get $10 million over a three-year period to “solve the problem” of uploading the overwhelming bulk of the country’s legal material.
To avoid legal fights, Mr. Malamud said, he takes the trouble not to scan material packaged within shrink wrap and bearing warnings that whoever breaks the seal agrees not to reuse the material. In those cases, like the American Society of Mechanical Engineers’ Safety Code for Existing Elevators and Escalators, he says, he finds another source without the implied license.
“If you require citizens to know, read and obey the rules, then it is in the public domain,” he said.
Even some critics of the current system say they understand why copyright has infiltrated the basic codes of the government. Peter Martin, a law professor at Cornell who was a pioneer in making legal material available on the Internet, explained the dilemma. A company “will say to some city, all your city council has to do is pump out ordinances, we’ll help you organize it and we’ll get to copyright it,” he said. “That is part of the quid for our quo.”
Professional organizations like the American Bar Association and the American Medical Association stress that they are performing a valuable, and expensive, service, by creating a code to rationalize the way doctors or lawyers behave, and deserve to be compensated. Take away the incentive, and there is no innovation, so the argument goes.
Rick King, executive vice president and chief operations officer of the North American Legal unit of Thomson Reuters, which owns many legal and medical databases, did not necessarily see Mr. Malamud’s cause as a threat. “I do think they are complementary,” he said about public.resource.org and his company’s legal research publishing, “as long as people are respectful of the parts that are copyrighted.”
He stressed that with more and more information being available online, his company’s value-added material would become even more valuable.
“If I am a regulator working for the E.P.A.,” Mr. King said, referring to the Environmental Protection Agency, “do I want to go to Google or a free database, or go to a Web site and see the historical changes in the code so I can understand why a code has changed the way it has?”
Mr. Malamud said his goal was to goad the government into releasing this information in the most open way possible so he could move on to new causes.
This summer, Oregon decided to release its laws into the public domain and make them available on line, but not before it challenged Mr. Malamud for printing its laws without permission. The state, which publishes its own laws at relatively inexpensive prices, claimed copyright of the laws’ organization and presentation.
Dexter Johnson, the legislative counsel of the Oregon Legislative Assembly, advised that the legislature not begin a potentially lengthy lawsuit against Mr. Malamud’s organization. Still, he hardly sounded thrilled by the change in access to the state’s laws, and the potential loss of state revenues.
“Where the Internet really succeeds is allowing different people from different walks of life to collaborate,” he said. “Laws don’t work that way. Statutes are designed so that everyone knows what they are.”
Is Mr. Malamud’s effort a good thing? “I think the jury is out,” Mr. Johnson said.