The States Can’t Copyright Their Law

This week, the SF Chronicle ran a story about a man named Carl Malamud who is creating a website where he would like to provide the public with access to our laws for free. He is posting case law, statutes, municipal codes, and law in its various other forms. However, he's run into a major problem. Some of the state governments are asserting that they hold a copyright of their laws and are threatening to sue him.

Reading the story surprised me for a few reasons:

1. As an intellectual matter, it shocks me that there are people who actually believe that they can or should be able to copyright the law that we are all held accountable to.

2. The author of the story is clearly ignorant of the current state of the law. Here is the legal analysis in its entirety: "Malamud says he believes that he's on solid ground if he is sued. Some legal experts agree." That's it. I don't expect journalists to be legal experts, but this is piss poor for an article that is supposed to be reporting on this copyright dispute.

In five minutes of Google time, anyone could have learned that Section 105 of the Copyright Act, while directly not on point, prevents the Federal Government holding a copyright in its works, including the law. That's a good starting point. As for state law, the Fifth Circuit recently wrote "'the law, whether it has its source in judicial opinions or statutes, ordinances or regulations, is not subject to federal copyright law." Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791, 800 (5th Cir. 2002) (en banc). Then, instead of their worthless quote above, the paper could accurately report that the state's copyright claims are all frivolous and compete bullshit.

3. Lastly, this story is at almost half a year old. It was reported in the Washington Times on April 19, 2008. Over five months ago. Yet, the Chronicle reports it as if it is new news on September 27, 2008. The blogosphere also covered it in several places including here, here, here and here. What took the Chronicle five months to catch on to this story?

I really hope that this story is an outlier in terms of quality, but I fear that it is not.