Oregon Law: owned by The Man.

Some of you might not know me, but we work together. That’s right, we legislate. We pass laws by proxy through the legislature, and directly too, when we vote on ballot measures.

But according to the Legislative Counsel Committee (LCC), we don’t own the laws we make; they do. And they get to decide who can and can’t publish them.

They’ve been saying this, apparently, since 1953, but it came to a head last April. That’s when when the LCC — a committee of several prominent legislators — issued a “takedown notice” to Justia.com, ordering them to stop publishing the Oregon Revised Statutes (ORS) on the web. Justia is a company that publishes laws from various U.S. states, in a standard and well-indexed format. (Here’s an example from another state.)

Public.Resource.Org (P.R.O.), a non-profit partner of Justia, took exception, and made the case for a change — both out in the blogosphere, and by retaining counsel and challenging the decision on legal grounds.

P.R.O. got the committee’s attention; this Thursday, June 19, the LCC will hold a hearing, and will consider their arguments. I’ll be giving the case on behalf of Oregon Wikipedians and bloggers. Here are two key points:

Internet offers new opportunities

Our newly Internet-enabled democratic society has a chance embrace its civic duty in new and promising ways. The efforts of Justia.com, making the law more accessible to any interested party, only scratch the surface of what’s possible. Given the ability to publish Oregon’s laws, innovative organizations (for-profit, non-profit, and non-organized alike) will continue to find ways to make them more accessible to Oregonians. Increased access allows citizens to embrace their role as lawmakers, and as law abiders, to an extent never before possible.

Other early efforts include the List of Oregon ballot measures on Wikipedia, the Meyer Foundation’s recently launched, and acclaimed project Connec+ipedia, and the publication of specific laws as supporting exhibits on any number of blog posts.

Accuracy concerns are legitimate, but copyright law is the wrong tool

Those defending the LCC’s decision have expressed concern that nefarious web publishers might post inaccurate versions of the ORS.

While it’s true that this could happen, copyright law is the wrong tool for defending against it.

First and foremost, anyone publishing a public resource stakes a piece of their own reputation on its accuracy. An organization like Justia.org has plenty of incentive not to falsify the law: they would lose credibility and clients if they were ever revealed to have messed up.

If some unknown publisher were to post something called “Oregon law,” the public would (rightly) be skeptical of its accuracy. Publication does not confer truth; I’m sure we all remember our parents and teachers telling us “not to believe everything we read.” If we haven’t yet internalized that message, it’s high time we corrected that.

Not good enough? Fine — pass a law, then! I’d be happy to help get the word out. It’s perfectly reasonable to prohibit deliberate falsification of the law — but copyright law is far too crude an instrument for that. Claiming copyright prevents good faith organizations and individuals from advancing the public discourse; but a more targeted law, independent of the spurious “ownership” issue, could more effectively single out the “bad guys.”

Oregon law already takes this approach, in the case of the Seal of Oregon. The Seal’s design, enshrined in the 1859 Constitution, is clearly exempt from copyright, as it was created well before 1923.

But its use is restricted by ORS 186.023. Not by copyright law, but by a law pertaining explicitly to this valued resource.

A law prohibiting the publication of inaccurate versions of the ORS would make sense. But that’s not what the LCC has done here.

So let your legislators, and the members of the LCC, know that we need to keep the entire ORS in the public domain, and available for various advocacy groups to expand our civic discourse. Here’s a list of LCC members:

Senators: Peter Courtney; Kate Brown, (running for Secretary of State); Ginny Burdick; David Nelson; Jackie Winters; and Floyd Prozanski.

House members: Jeff Merkley, (running for the U.S. Senate); Greg Macpherson; Dave Hunt; Andy Olson; Dennis Richardson; and Diane Rosenbaum.

(Oh, sorry, maybe you shouldn’t take my word for it…after all, I might have made a fake list! Here’s a link to the official list.)

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34 Responses to “Oregon Law: owned by The Man.”

  1. Excellent Blog. I’ve been reading along and just wanted to say hi. I will be reading more of your posts in the future.

    – Jason.

  2. It’s perfectly reasonable to prohibit deliberate falsification of the law — but copyright law is far too crude an instrument for that.

    No kidding. In fact, it’s exactly the wrong instrument.

    Let’s say I build a website called “Oregon Law” and make up a bunch of entirely bogus stuff. Copyright law wouldn’t apply — after all, it’s a brand new creative work, created by me! I own the copyright, not anybody else…

  3. perhaps maybe a lot more of us need to start publishing the laws. i’d be happy to stick them on my website, just to stand in solidarity. (plus i am, sadly, very familiar with ORS 25.) i can’t beleive this could be held up in court.

  4. Very good point, Kari.

    T.A., looks like Jack Bog had the same notion — though Chapter 289 seems to be his chapter of choice.

    What a bunch of reckless scofflaws I’m running around with!

  5. Bach Nelson Says:

    sounds like a tax – – – and a pain …

  6. OK, Pete, as you remember, having some knowledge about the subject, I tried to respond to your first post on this subject, but gremlins ate it. A longer post will follow. I will just mention this though. A point a lot of people seem to be missing, aside from the copyright issues, is that the LC does publish the entire ORS on the web, and it’s fully searchable. Again aside from the copyright issues, why does anyone even need to put up a mirror site?

  7. Katr, I’ve never been angrier with the gremlins!

    Why does anyone need to mirror this stuff? Lots of reasons, but any list I come up with will be limited by my imagination…

    First, I’m not nearly as satisfied with the state’s current site as you are. First, it’s all plain text; any given page has zero links to anywhere useful and related. I’m told there are accessibility and HTML compliance issues. And there’s no internal linking either (think Wikipedia’s tables of contents.)

    But even assuming that all that stuff gets addressed soon, there will still be ways to present certain parts of the ORS for certain purposes, that the government won’t anticipate. For instance, if an attorney wants to present some landlord/tenant law to his client base, he might want most (but not all) of the stuff from several pages of the ORS. Much better to selectively copy and paste, using the “official” ORS as a citation, than to list off chapter numbers and expect readers to click through.

    Also, an attorney who contacted me in an email pointed out that older versions of ORS are of vital importance to him, but are NOT hosted by the government. (Sorry to shout.)

    Look at the New York law that I linked above — I think even at first glance, you’ll see it’s much more readable than the state web site’s version of ORS.

  8. I’ll take a closer look tomorrow. As far as the internal linking and html issues, all I can think is hmm, how are they gonna afford to pay for someone to do that? I think the LC would love to improve and modernize the accessibility of ORS, but they have to convince the LCC to give them the money to do it. I honestly just think these problems are because Oregon government moves at a glacial pace, and is not due to any malice on the part of the gubmint. I’m really quite surprised at some of the vitriol expressed in some of the reactions to this issue.
    The reference to old versions of ORS (which, BTW may be very useful to lawyers, but might just confuse everyone else) make me realize that this issue has only been possible for the last ten years or so. Until there was an Internet, nobody had any recourse but to go find a print copy of ORS. I can’t say I ever did. Not to say that access to today’s ORS shouldn’t be as modern as possible, but we should thank our lucky pixels that we can access it electronically at all.

  9. As far as the internal linking and html issues, all I can think is hmm, how are they gonna afford to pay for someone to do that? I think the LC would love to improve and modernize the accessibility of ORS, but they have to convince the LCC to give them the money to do it.

    Actually, that could be almost entirely automated. Any semi-competent programmer could write the script in 30 minutes.

    It’s possible because the text references are fairly consistent. “Notwithstanding ORS 250.035, the statement…” You’d just write a code snippet that looks for all those “ORS ###.###” lines and links ’em up.

    Not hard. Better yet, if you could link up all the old versions, in places like “478.230 [Amended by 1953 c.369 §2; 1967 c.609 §11; 1969 c.667 §14; repealed by 1971 c.647 §149]”

  10. Katr, about the intent — I’ve come to completely agree with you (though that’s not where I started). If the present post reflects any vitriol, that’s a mistake, and something I’ll be trying to weed out this morning as I write my official testimony…thanks for that bit of feedback, it’s pretty important. AGF and all that.

    But as for the way you connect the issues — Chuck Sheketoff helped me understand this — they’re really not all that closely related. And since the LC has nothing to do with giving direction to IT, best not to bring that subject up in a hearing like this.

    But if you simply take it as a given that the LC will always be a bit strapped for cash and a bit behind the curve, that makes it all the more important that they leave open the possibility of lawyers, law students, encyclopedia writers, bloggers, non-profit and foundation workers to meet their own needs.

  11. Ross Day Says:

    Pete-

    This is a great post and article, but I would like to come to the defense (sort of) of the LCC (I can’t believe I am doing this).

    (please excuse the condescending tone of this comment, I mean absolutely no disrespect)

    You see, in the legal profession, we use books called reporters. Reporters are books that contain cases, attorney general opinions, and administrative agency decisions. The reporter for Oregon Supreme Court decisions is known as the Oregon Reporter. The reporter for decisions of the Land Use Board of Appeals is known as the Oregon LUBA reporter, and so on.

    The Oregon Revised Statutes are themselves a reporter. The actual laws of the state of Oregon are housed in the Oregon Laws. Those are the laws that actually “belong” to the people of the state of Oregon.

    The ORS’s, on the other hand, are nothing more than a cumalative reporter of the laws passed by the legislature. In that sense, the ORS’s are published by the state of Oregon in its proprietary capacity, which means the ORS reporter can be protected by copyright law.

    This is a fact that many lawyers, let alone lay people, aren’t aware of. In fact, on rare occasions, the ORS do not contain the entirety of a law passed by the Legislature. I actually found a law relating to employment agencies where the ORS left out a critical part of the law actually passed by the legislature.

    The point is, the ORS are nothing more than a reporter published by the state of Oregon. Think of it as nothing more than a book published by any other author.

    With that being said……..

    Keep in mind that the state of Oregon allows West publishing to “republish” the ORS. That may be the real rub here. I am sure that West pays the state for the right to republish the ORS. If you guys can get away with republishing the ORS for free, I suspect the LCC is worried it will lose the ability to exact a royalty from West publishing (which also republished court decisions, luba decisions – as does Lexis Nexis). I might focus my comments on this aspect.

    I wish you the best of luck, but I think you may have an uphill battle. Hopefully my comments help you refine your argument so you will be successful today!

  12. Ross yes, this is extremely helpful. It matches my understanding very closely — though I’m very happy to have technical terms like “reporter” explained to me.

    I’ve been struggling to figure out whether the motivation for this came more from protecting the people of Oregon from being tricked by “fake laws,” or the royalty issues you mentioned. I’d like to address both in my testimony, but don’t know how much weight to give to each.

    But, your point is well taken, and I acknowledge that it’s currently permissible for the State to copyright most of its works and collect royalties.

    But that’s something we’re trying to get changed, too. Baby steps…

  13. Ross Day Says:

    Pete-

    A couple of other thoughts after thinking about your post.

    Again, this is a great article and a terrific battle you are taking on, I hope you are successful.

    You talked about a law prohibiting the publication of essentially incorrect versions of the ORS (I assume you mean publication on the internet).

    There are two constitutional problems with such a law, and I can guarantee Peter Courtney, Kate Brown, Floyd Prozanski, David Nelson and the rest of the lawyer on the LCC will call you out if you offer such a solution.

    First, there are free speech concerns, mainly with the Oregon Constitution’s free speech protections. Such a law as you propose is aimed at the content of the speech, rather than the speech’s harmful effects.

    Second, to the extent such a law attempts to regulate internet content, I think the feds have jurisdiction in that regard to the extent the internet is an instrumentality of interstate commerce. So I think such a law would be pre-empted by federal law.

    Just my additional thoughts…..take ’em or leave ’em.

  14. Pete, just a couple thoughts, which I had addressed in that long-gone gremlin-eaten post. Forgive me if you’ve been over this ground before…

    Even the version of ORS that the LC puts up on the web has a disclaimer that it shouldn’t be considered the official law:

    Although efforts have been made to match the database text to the official legal text they represent, substantive errors or differences may remain. It is the user’s responsibility to verify the legal accuracy of all legal text.

    The only official version of ORS is the print version published by the ORS itself. So anybody copying and reposting the ‘net version of ORS might not make that clear and I think that’s definitely a concern. Thomson-West pays a license fee to republish ORS but I suspect the main concern is not that the LCC can soak licensees for hefty fees, but that if T-W wants to publish and profit from a competing version of something that the LC already has an excellent version of, they darn well better pay for the privilege.

    As you may recall from our discussion on the wiki, The Oregon State Bar Bulletin published a comparison of the competing products.

  15. Kari,

    Actually, that could be almost entirely automated. Any semi-competent programmer could write the script in 30 minutes.

    It’s possible because the text references are fairly consistent. “Notwithstanding ORS 250.035, the statement…” You’d just write a code snippet that looks for all those “ORS ###.###” lines and links ‘em up.

    Not hard. Better yet, if you could link up all the old versions, in places like “478.230 [Amended by 1953 c.369 §2; 1967 c.609 §11; 1969 c.667 §14; repealed by 1971 c.647 §149]“

    Yes, the consistency within the text is intentional and constantly improving. There is already a program used by the LC for searching the ORS, so you are right, finding all the references and linking them up shouldn’t be a problem. As far as the old versions, I assume you mean linking to the full text of the old versions of the law? The LC only has the session law on state leg. website back to 1995, and I’m not sure what year they first published the ORS online, but they should have everything in electronic form at least back to 1995, and probably for several years previous. But going back to 1953? Sounds like a massive scanning project to me. One that is worthy, but time-consuming and expensive.

  16. P.S. Pete, as far as “vitriol”, I don’t think your posts reach that level at all (the pointy comment about the “official list” just made me laugh), but glancing at some of the other stuff about this on the web, it seems like some people are reacting with hysteria about the bad bad gubmints and not taking the time to really look into this complex issue. As I know you realize, the “shame on you bad bad gubmint” approach will not win you any friends at the capitol.

  17. What if the ORS was just released with a creative commons license, or some variation thereof? Wouldn’t that accomplish what both sides want to accomplish?

    The state would have recourse against bad actors, while the good people of the internet would have the right to republish and annotate the text…

    Seems like a win-win to me. If they did that, would it be an acceptable endpoint?

  18. I’m not sure why publishing accurate text of the real laws wouldn’t also fall afoul of free speech considerations, if misrepresentations would, and I still don’t really understand how a public text published by a public entity can not be in the public domain. Is there an Oregon statute to that effect? Has it ever been challenged?

  19. Jim Edmunson Says:

    I was on LCC in the 90s and we had all sorts of pressure to grant an exclusive license to this or that private for-profit book publisher to print and sell the ORS (which, correctly noted elsewhere, is a compilation of public domain laws that is subject to copyright).

    The public policy was that the State of Oregon compiled the ORS and therefore owned it. The state retained legal ownership or copyright and only would consider non-exclusive licensing to permit private companies such as West to publish law books. That way if West (or anyone else) misprint or edited the statutes the state could step in and enforce its license agreement. Accuracy, access and public protection were why we had this policy.

    There are good lawyers and legislators on the LCC today. Peter Courtney and Kate Brown, in particular, have a boatload of institutional knowledge. I can not imagine they ever would restrict internet access just because some corporate publisher paid to print and sell law books. The State of Oregon can and should freely license any group that wants to reprint our statutes, if only for $1, so long as the state retains the right to make sure what is published is what actually was enacted.

  20. anonymous Says:

    Please note that Ross Day is with Oregonians in Action, a private-property-rights group. The issue of whether the text of state statutes is proprietary has long been a topic of debate among law librarians: although the claim of public domain was clear for many years, the debate arose when West republished state public documents with its own editorial enhancements, and claimed its own copyright in the entire resulting text. The Legislative Counsel’s office tried years ago to cut a deal with West and was rebuffed. That office has no proprietary rights in the text of the laws as passed by the Legislature, and has a duty to make them publicly available free of charge.

  21. Ross Day Says:

    Ok, you outed me. I am the lawyer at Oregonians In Action. What relevance does that have to this article, I don’t know.

    Nevertheless, I think Jim Edmundson’s comment is excellent and better explains what is going on with the whole copyright issue.

  22. That way if West (or anyone else) misprint or edited the statutes the state could step in and enforce its license agreement.

    Jim et al… If some publisher misprints or misedits their copy of the ORS, why should the State of Oregon care?

    In the event of a disagreement between two lawyers’ version of the law, the judge would surely turn to the official copy published by the State.

    And then that publisher would almost certainly go out of business. I can here the chatter now: “Hey, buddy, don’t waste your money on ABC Inc’s copy of the Oregon law, they screwed up the whole section on family law.”

    What’s the big deal? Especially in the age of the internet – when the state could even publish the one true copy of the laws right on the net (at zero cost), where it’d be available (at zero cost) to anyone that wants it.

  23. Jim Edmunson Says:

    Why should the State of Oregon care? A better question is why should we the citizens care? Time for deep thoughts.

    First off, the State is not a nameless superpower. We are the government — yup, you and me and even the guy/gal next door who votes wrong every election. If we don’t have pride in “our” work then why do we even do it? If we believe in the power of self rule, then we’d better care about careless corruption of “our” work product. In other words, why do we care about any of it? So the first answer is “for the same reason we care about any of it.”

    My second answer may not sound much like a what many people believe is a lawyer talking — but I think our precious legal resources should be utilized for serious disagreements, not frivolous arguments over whose book whose lawyer read before wandering into court. Want to hold down legal expenses? Want to pay by the hour to hire a lawyer to argue over misrepresented versions of statutes? C’mon. This one is a no-brainer — we, oops, I mean the state, easily can make sure the official laws are accurately published so when it comes to the black letter everyone has the same rules. Sports teams function okay with an official rule book. Shouldn’t serious legal matters at least meet that standard?

    I wholeheartedly agree that the ORS should be free on line. In practice, it is now. Most attorneys — small firms like mine especially — utilize the web as our law library. The non-lawyer public uses it, too, and they will be deceived by official sounding “state laws” that have been edited or even carelessly published. If we consider corruption of our state laws isn’t “a big deal” after they are enacted. then why worry do we care about who enacts them in the first place or how they do it?

    Politics isn’t a spectator sport. If we care about the process, then I hope to hell we care about the outcome. Facts are tough enough (not to mention expensive) to litigate in appropriate cases. But going to court to ask a judge to decide which version of a law is accurate is a waste of time and money.

  24. Fair enough, Jim. Which leads us back to my earlier suggestion – which I think you agree with…

    What if the ORS was just released with a creative commons license, or some variation thereof? Wouldn’t that accomplish what both sides want to accomplish?

    The state would have recourse against bad actors, while the good people of the internet would have the right to republish and annotate the text…

    Seems like a win-win to me. If they did that, would it be an acceptable endpoint?

  25. I’m glad to see the debate alive and well. Just one question at the moment, as trying to get rested for tomorrow — Jim, it seems to me that you’re looking at this as an “either/or” situation, when nobody is proposing that it should be. I think we’re all in agreement, that it’s important for the State to maintain a reasonably accurate version of the law online (though attorneys tell me that even ORS has its occasional inaccuracies!)

    I also think we’d all agree that in serious disputes, it would be a pretty negligent attorney who relied on a third party’s version of the law, rather than going straight to the source.

    But the sort of negative scenario you bring up, it seems to me, could only arise if the State stopped publishing ORS online, or if attorneys started using an inferior source of their own volition.

    So isn’t your argument a bit of a straw man?

  26. Jim Edmunson Says:

    Fair enough. But not a straw man argument either, just a scenario if we were to let the publishing world (electronic and print) fashion its own version of the state laws. The point is that public control is public oversight, and oversight is to protect the public, not hinder its access. Maybe the $1 license idea does the trick without the onerous $30,000 fee Oregon reportedly charges the big legal publishing houses for the electronic version. That is economic exclusivity for all but the corporate rich.

    And yes, the reality today is that no lawyer licensed in Oregon is affected by this in any substantial sense. We have access through the Oregon State Bar to a great database (Casemaker) that not only includes ORS but federal and state court cases, administrative rules and decisions, and collections from other states. Plus, with a little digging, most if not all of that data is on state and federal web sites at no cost and with search functions.

    The big publishing houses selling leather bound libraries at ransom prices — once dominant and unavoidable to even a solo practioner — are endangered species in the legal world. Thank you internet.

  27. Maybe the $1 license idea does the trick without the onerous $30,000 fee Oregon reportedly charges the big legal publishing houses for the electronic version.

    Or better yet, the creative commons license. Even a $1 fee creates bureaucratic procedure – while the creative commons license basically allows anyone to use it; but if anyone violates it, the state would have recourse.

    It sounds as if everyone here (despite where we’ve started) is coming ’round to the same idea… the state should retain some form of ownership, but allow anyone to republish it and annotate it, provided they replicate the content exactly.

  28. Which, btw, leaves only one question: Should the creative commons license be restricted to only those who motives are not-for-profit? Or should the state continue to charge pricey licensing fees to for-profit entities? (And what constitutes “for profit”? If I put it all on a website, and then just run some ads next to it to pay for server space, is that for-profit?)

  29. Headline-report from this morning’s hearing can be found at http://onward.justia.com/ – where Tim Stanley says (in part): “After taking legal counsel from Dexter Johnson, talking with Karl Olson, Carl Malamud, three Oregon citizens and myself, they unanimously voted to place the Oregon Revised Statutes into the public domain”

    Way to go!

  30. Thanks Mom! Yes, I’d say this was pretty much an unqualified success.

    I was very excited by the people who chose to testify — PSU professor and open source leader Bart Massey, and Amy Sample Ward, a mover and shaker who has brought us the Chalkboard Project and Connec+ipedia.

    The team from Justia and Public.Resource.Org made an excellent presentation, and all the legislators in attendance showed genuine interest and asked tough questions. In the end, they voted unanimously to not defend the copyright claims over the Oregon Revised Statutes.

    Watch here for a more extensive wrapup in the next few days, with audio and/or video of the hearing. Thanks everybody for your excellent comments — they were very helpful in getting my testimony prepared!

  31. […] I wasn’t selected this time — what with the Oregon Revised Statutes issue I got embroiled in, I don’t know where I would have found the time to get a presentation […]

  32. […] advocacy, collaboration | Tags: copyleft, government, legislature |   Last Thursday, as you may have heard, the Oregon Legislative Counsel Committee (LCC) held a public hearing on its policy of […]

  33. […] the agencies that produce them. Readers of this blog may recognize this concept, as it ties in with what we accomplished with the Oregon Legislative Counsel Committee last […]

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