By: Gage McMullen
“Law is the operating system of our society… So show me the manual!” reads a banner on Public.Resouce.Org.[1] Below this are six links labeled “Bulk Data” and individually named things like “California Building Codes,” “Official State Codes,” and “Public Safety Codes of India.”[2] Following one of the links tends to take the user to a page that hosts a scanned PDF copy of the designated code. Sometimes, however, the page will return an error. A short explanation will appear informing the user that the document is unavailable because “Public Resource is litigating for your right to read and speak the law.”[3]
Malamud’s work is based on the government edicts doctrine, that “no one can own the law.”[4] Nevertheless, many of the published safety codes that govern projects undertaken by companies, government employees, and individuals are not readily available.[5] These codes can be prohibitively expensive or held at a single library in the state.[6] To bring attention to these aspects of local government, Malamud actively defies copyrights that various organizations have on the law.[7] In one of Public.Resource.Org’s several copyright-based projects, the organization purchases and scans paper copies of various safety codes and hosts the PDF version of the document on its website.[8] In tracking users’ responses, Malamud discovered that a wide array of people were accessing the safety codes so that their own personal or business projects could conform to the code.[9] In addition, several users discovered issues with codes, and many discovered that their local safety laws were outdated.[10] Public.Resource.Org was recently the respondent in a suit that went before the Supreme Court.[11] The 2020 case, Georgia v. Public.Resource.Org, centered around Georgia’s official annotated code.[12] As Malamud has done in the past, he purchased the code and hosted it on Public.Resource.Org.[13] After being told to take down the copyrighted work and subsequently refusing, the state of Georgia took action to have the material taken down.[14] Georgia argued that while the code itself could not be copyrighted, the annotations in the published edition were not legislation and, therefore, could be copyrighted.[15] The Supreme Court held against the state of Georgia in a split decision with several justices dissenting.[16] The majority held that the test was not “whether the given material carries ‘the force of law’ but rather if “the author of the work is a judge or a legislature… in the course of his judicial or legislative duties.”[17] Despite this victory, the strength of the dissents demonstrates that the principle of open access to U.S. law is in danger of further erosion.
[1] Public.Resource.Org, http://law.resource.org (last visited Sept. 5, 2020).
[2] Id.
[3] Public.Resource.Org, https://law.resource.org/pub/ars/manifest.ars.html, (last visited Sept. 5, 2020).
[4]Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1501, 206 L. Ed. 2d 732 (2020).
[5] Lydia DePillis, Want to Read the Law? It’ll Cost You., The New Republic (Apr. 10, 2013), https://newrepublic.com/article/112871/carl-malamud-lawsuit-fight-make-building-regulations-truly-fee.
[6] Id.
[7] LawResourceOrg, Show Me The Manual, YouTube (July 14, 2012), https://www.youtube.com/watch?v=2tOJdGaMvVw.
[8] Public.Resource.Org, http://law.resource.org (last visited Sept. 5, 2020).
[9] LawResourceOrg, Show Me The Manual, YouTube (July 14, 2012).
[10] Id.
[11] Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1501, 206 L. Ed. 2d 732 (2020).
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1501, 206 L. Ed. 2d 732 (2020).
[17] Id.