Many Americans may be surprised to learn their laws are attached to a price tag and slid beneath a copyrighted paywall. For years state governments have partnered with publishers to update and sift through their jumble of constantly changing legal codes. Though the original texts remain free, annotations, section titles, chapter summaries — and almost every alteration to make the texts coherent and digestible — can only be reproduced with a fee paid to the publishers. State governments allow the transactions in exchange for deferred publishing and editorial costs.
Want the official annotated version of the Code of Georgia? That will be $378, please. Want the Code of Idaho? If you live in state, it’s discounted at $547. Want the annotated Mississippi Code? That will be $613 — all current prices from the states’ publisher, LexisNexis.
First reactions to the notion of copyrighted state codes can incite consternation. After all, how just is it to require obedience to laws seemingly held at ransom? It’s a motive for knee-jerk judgments against publishers generating profits and governments delegating services to cut costs.
However, for state governments and the code-publishing industry, blame is dependent on the definition of what is considered “open.” In recent years, a national debate has stirred from conflicts between historical definitions of “open” (such as by formal requests or library visits) and today’s definition of open data, where information is digital and downloadable. In the fray, publishers have attempted to protect their decades-old business models, and opposingly, activists and civic hackers have argued that citizens are entitled to all law — however it’s packaged.
‘Rogue Archivist’ Intervention
Acting as a lobbyist and vocal threat to the code publishing industry is Carl Malamud, an author and the president and founder of Public.Resource.org, a site dedicated to the promotion of free municipal, state and federal legal codes. The media has labeled Malamud a “rogue archivist” for his personal campaign to “liberate” state legal codes by publishing them on his website.
Malamud’s definition of open code means it is open in all circumstances, whether edits and annotations have been made or not. He advocates that legal code should be free, online, searchable, linkable, downloadable in bulk and privately or commercially reproducible by citizens — similar to open data standards set by governments.
“I’m a firm believer that when you put technical information up on the Internet people have the opportunity to educate themselves, to create new businesses, and just as important, they have the opportunity to know what the law says and obey the law,” Malamud said in a video on his site.
The problem he attempts to remedy is what he views as an antiquated or narrowly defined definition of open code by certain governments. In the past, libraries were the original distribution centers of all open data: a book is published, a library purchases it and citizens gain access via library visits. This traditional concept of open, Malamud believes, is now the new definition of closed.
Challenges stem from usability. If state laws need to be referenced continually or outside of a state, for example, library visits become impractical. And while publishers such as LexisNexis maintain sites that publish state code for free access online, such as in the case of Georgia, a disclaimer informs visitors that the printed version of the code remains the official version and there are no links provided for individual sections. It’s dually noted that the company’s digital annotated code cannot be reproduced in any form without written permission from the Georgia Code Revision Commission (GCRC), the organization that maintains the copyright so LexisNexis can act as the state’s official distributor.
In response to such constraints, Malamud has confronted the issue through lobbying efforts to legislators and by publication of state laws on Public.Resource.org.
To date, his lobbying has prompted the U.S. Securities and Exchange Commission to publish corporate documents online and C-SPAN to make its video archive of government proceedings widely accessible. In January, Malamud testified at a congressional hearing to make laws exempt from legal copyright and continues to publish municipal, state and federal codes to his site when possible.
However, his protests and tactics have not gone unchallenged. Malamud has received cease and desist orders from states for his code publication. On July 25, 2013, GCRC Chairman and Georgia Sen. Josh McKoon wrote a letter alleging copyright infringement and threatened to seek monetary damages. When Malamud refused to delete Georgia’s published code five days later, McKoon described his response as “unacceptable.” The dispute is still ongoing and according to correspondence to Malamud from McKoon, dated on April 2, the state is still asserting copyright.
McKoon did not return emails inquiring on his position.
When asked for the state's perspective and background on the issue, Wayne Allen, legislative counsel for the Georgia General Assembly, referred to an article from the Georgia State Bar Journal chronicling the state's partnership with the Michie Co., which was subsequently acquired by LexisNexis. The article dated the partnership back to 1978 when Georgia undertook a major project to recodify and annotate its laws.
"Beyond that [article], I have no further comment to offer on the matter at this time," Allen said.
Malamud faces similar threats of copyright infringement from Idaho and Mississippi.
Hackers Offer Aid
The civic tech community is accustomed to turning industries on their head. The crowdsourced lodging startup Airbnb threw a jab at hotels, Lyft car services shook up taxi companies and the platform Neighbor.ly handed average citizens the ability to invest in large local real-estate ventures.
The OpenGov Foundation is attempting to spur similar disruption for legal code publishing at the city and state levels. The foundation is dedicated to developing technologies that support citizen participation in government, and through its AmericaDecoded platform, have worked with cities to publish municipal codes that are annotated and compiled for easy use through algorithms and crowdsourced editorial support. The organization, co-founded by Executive Director Seamus Kraft and Rep. Darrell Issa (R-Calif.), has published nine different jurisdictions so far with a trajectory to unleash more.
However, despite much success with city municipal codes, the group has walked a fine line to ensure it doesn’t overstep when publishing state laws. It’s been the case for OpenGov’s work on Maryland’s code — officially distributed by LexisNexus — that is still in beta but to be released soon online with its own application programming interface.
"To respect the copyright, we've gone around and hacked that whole process and created our own. Our goal is to gift that code back to the state Legislature and the people of Maryland,” said Kraft.
Like Malamud, Kraft argues that the law, however it’s presented, should be freely accessible to the public regardless of the format it’s placed in or what type of jurisdiction — city, state or federal — it belongs to. Insufficient resources, he said, is no longer a justifiable excuse for most state governments considering how relatively cheap it can be to update and publish code.
"We're doing these decoding projects for dollar amounts that are in the thousands, single digit thousands," Kraft said. "And for many state governments that's a rounding error in most budgets."
Ultimately, OpenGov’s mission is to offer the service to as many states and cities as possible and systematically turn the nation’s legal codes to open by default. For each municipality and state, Kraft said the hope is to install an algorithmically automated — or near automated — updating system that will gather new codes and adjust texts and chapters as needed. As the process stands, AmericaDecoded outsources editorial work to freelance writers who replace copyrighted chapter titles, summaries and other annotations with non-copywrited counterparts.
Kraft is optimistic that many jurisdictions can leverage the services, but pragmatically, he concedes no single solution is set in stone for all. His overarching position, however, is that when codes are published they should come free of charge and be easy to access and reproduce.
"The right answers aren't established by any stretch of the imagination beyond the foundational notion that in a free society free access to the laws that govern us is a basic right of citizenship,” Kraft said. “A citizen can't be expected to comply with the law unless the statutes and codes can be accessed openly and without costs.”
The Publishers’ Perspective
Impulses can easily heave blame at industry frontrunners, those publishers such as LexisNexis and West that capitalize off states’ copyrighted code. Yet, a historical look back shows the role of code publishers has been far from profiteering and more evolutionary with the growth of technology.
“I really wouldn’t characterize Westlaw or LexisNexis or the large publishers in a bad light; their business model is just different,” said Lawton Langford, chairman and CEO of the Municipal Code Corp. or MuniCode.
Langford’s company, based in Tallahassee, Fla., has been publishing municipal codes since his father founded the company in 1951. Today, its 3,000-plus municipal codes come free of charge for citizens to research, download, link to and reference — a byproduct of a business model that charges municipalities low sums (on average about $5,000) in exchange for annotation and online publication.
In the past, Langford said it was a common case for cities and states that didn’t desire the management duties and costs of publishing to make an agreement with a code publisher to free up resources. The publisher wouldn’t charge a jurisdiction for editing and printing. However, the company would be granted exclusive sale of the jurisdiction’s official annotated code for compensation — the state enforcing its copyright of the code on the company’s behalf. The process went on for years.
When the Internet and digital records became ubiquitous counterparts, the dynamic changed. Printed consumer publishing costs no longer were a blockade, and governments could distribute their legal codes for free. This option of free code now casts dark shadows on states and publishers still operating under the decades-old business model. It’s also unlikely large publishers will transition out of the business model themselves considering the difference to revenue streams.
Langford said the reason cities publish free code online is because there isn’t a market large enough to compel publishers to take on the labor and some printing and editorial costs. While not speaking on their behalf, he said it's doubtful governments could compensate state publishers like LexisNexis or West to rival current revenues.
“Because the [municipal code] market is so small we couldn’t sell this product, these words, and cover our costs, and so we get hired by the local governments to editorially and legally scrutinize and codify their laws enabling us to provide access for free," Langford said. "At the state and federal level, because the market is bigger, there’s a greater opportunity for those publishers to cover their costs by selling books or charging for access.”
Jeff Pfeifer, LexisNexis vice president of primary law, said heavy traffic on the company’s free-use sites is evidence, despite recent protest, that the public is making valuable use of state laws. More so, he argued against the misconception that LexisNexis is opposed to the public’s access of laws and statutes — considering the company maintains the open sites for free.
“The current business model offered by LexisNexis and other legal publishers allows states to minimize or eliminate public expense while producing a world-class codified set of statutes. LexisNexis receives no compensation for its work other than the ability to sell the print version of the code produced in conjunction with the state,” he said.
Change to the approach, Pfeifer said, would come at a high cost to states. He warned it may cause states to employ considerable staff resources to deliver a comparable expertise and product.
“We believe that the current business model carefully balances the public's right to access the laws of the state with the financial benefit delivered to the citizens of each jurisdiction,” Pfeifer said.
Where the Burden Lies
The battle for the definition of open code is no less heated in Congress and there appears to be no final word in the debate. In a House Judiciary Committee on copyright in January, organized to help decide the issue, representatives met for a back and forth that pivoted arguments around author ownership.
Georgia Rep. Doug Collins spoke in favor of current copyright laws. Speaking to Malamud at the hearing, Collins defended Georgia’s partnership with LexisNexis under a pretense that, whether associated with state law or not, all private authorship should be protected, annotation or otherwise. Collins likened republication and full digital access to annotated codes as no better than cheating.
“We respect the work," he said. "We don’t go out and say ‘Well, I’ve got the book. Let’s go out and copy it, send it up, just simply because I don’t want to do the work.’”
Issa adamantly opposed Collins on the issue with the stance that even annotated laws belong in the public domain — especially when taking into account code copyrights are still owned by states and state governments are supported by citizens.
“Isn’t, in fact, every single person who participates in the creation of the law — or the inclusion by a standard — not in fact an author,” Issa argued.
The issue remains unsettled and may not be decided for some time. Each side has its adherents, and traditional revenue streams are hard to steer in new directions. In light of all the complexities it wouldn’t be improbable for the industry itself to solve the problem long before legislators do. Tech innovators, like the OpenGov foundation and others, are progressing with these workaround solutions. Whether they’ll be pervasive and sustainable enough to stick is a question for coming years.
"The bottom line is that however this is accomplished,” Kraft said, “it really is a core job of the government. … Legislatures are under a duty to draft and promulgate these laws: that’s the federal government, that's state government, that's county government, it's municipal government."