ThinkProgress recently received a very special package courtesy of technologist and public domain advocate Carl Malamud and his organization Public.Resource.Org. It included one of the twenty-three books that makes up the District of Columbia (DC) Official Code published by Thomson Reuters subsidiary Westlaw with its binding stripped, a proclamation of digitization, and a flash drive shaped like George Washington containing a digital copy of the entire code.
The reason this package was so special is that currently, there is no officially sanctioned way to download the DC code in digital format. The DC government claims copyright over the code and has outsourced the actual codification work to different private entities, previously Westlaw and currently LexisNexis — meaning that the DC government can’t provide you a digital copy of the law by way of a Freedom of Information Act (FOIA) request because they aren’t in charge of it, nor are you allowed to replicate information from the Westlaw site that serves as the only official source of the code online thanks to the End User License Agreement (EULA), thus prohibiting external groups from creating easier to navigate versions of the code. Steve Schultze at Freedom To Tinker explains why this a problem:
“Copyright exists to incentivize people to create new works. The federal government is not allowed to copyright things, because they don’t need the added incentive, and it would be bad if they started charging for access to something like the text of laws that they promulgate. If ignorance of the law is no excuse, the law must be public and knowable.“
Malamud and his organization posted the code online, and contend it is legal because copyright does not apply to government edicts — and the Supreme Court has sided with this interpretation on more than one occasion, with Wheaton v. Peters and Banks v. Manchester both agreeing that the law cannot be subject to copyright, and the United States Copyright Office practices compendium saying copyright does not apply to most government documents for public policy reasons “whether they are Federal, State, or local.”
But the relatively straightforward guidance on how copyright cannot apply to these types of documents hasn’t stopped other states from trying to enforce copyright over their laws. Oregon attempted to assert copyright over its laws in 2008 in a cease and desist letter to Public.Resource.org and Justia, but eventually backed down.
Vladlen David Zvenyach, who oversees codification for the city council, has said the city has no intention of pursing action against Malamud and claimed the DC government asserted copyright to prevent the publishers it contracted with to codify the law from claiming ownership, telling the Washington Times, “[i]f Lexis is the one doing it and the state goes around and alters it, they could be sued by the publishers. Our copyright is intended to protect us against them, not protect them against the public.”
A former senior fellow and Chief Technology Officer at the Center for American Progress, Malamud led the “Yes We Scan” campaign aimed at digitizing government documents. The White House responded favorably to the concept, but has yet to make any substantial progress.