The US Court Ruling
November 12th, 2018
We have been waiting on the Federal Court of Appeal (FCA) to Rule on the Canadian Standards Association/s (CSA’s) curious claim to privately own the law. In this Country, the CSA claims to own about 2,000 of Canada’s laws.
A medley of similar cases are underway in the United States and most of these feature the same defendant, an outfit called Public.Resource.Org., Inc. (PRO). You see, PRO was doing on a larger scale what PS Knight is doing in Canada. They were making public laws available to the public.
Well, quite a few people in the US got quite upset about what PRO was doing. Imagine, if PRO made public laws available to the public, then outfits like CSA couldn’t charge money for the right to read the law. There are mounds of money to be had by restricting public access to public law, essentially putting the law itself behind a paywall. And in the same way that CSA drafts Canadian law, these US laws are drafted by volunteers, so the outfits making the killing on access payments didn’t actually pay to develop the laws that they’re monetizing.
So, no outlay; all income. It’s quite a racket.
One such racketeer is the State of Georgia.
As an aside, ever notice how so many of these dodgy dealings are done by civil servants? Anyway, back to Georgia….
This State filed a lawsuit against PRO seeking “injunctive relief against PRO’s ‘widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia.’ [the Code]”
The “annotations,” by the way, are the technical interpretation particulars of legal texts. They’re the instructions included in legal text that you comply with when obeying the law.
On October 19th of this year, the US Court of Appeals for the Eleventh Circuit issued its Ruling in the State of Georgia vs. Public.Resource.Org., Inc. (No.17-11589).
The Ruling is a thing of beauty. It begins thusly; “Answering this question” of who owns the law “means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts which govern their lives.”
“In most states.” it continues, “the ‘official’ Code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People.”
A quick note; As the United States is a republic, all law is deemed as inherently public domain and therefore uncopyrightable. As Canada is a Crown confederation, all law is deemed Crown property and is copyrighted Queen’s Printer in the name of the Crown on behalf of the people. When US Courts refer to “uncopyrightable,” this term is the legal equivalent of Canada’s Queen’s Printer copyright; same landing, just a different structural path to getting there.
Back to the Ruling; “To resolve this question, then, we […] drill down on the core attributes that make the Code annotations what they are—namely an exercise of sovereign power.” [emphasis added]
The reference to “sovereign power” is the important part. Civil servants tend to profess a curious notion that they can draft laws, lobby for laws, enjoy the powers of legislative committees, and enforce the results of all that legislating, and yet insist that those legal texts are somehow not the law, nor are their legislative activities legislative in nature. You know, if it walks like a duck and quacks like a duck, it must be a lemon cheesecake -that sort of thing.
Well, the Court didn’t do the duck-and-cheesecake argument. From the Ruling; “When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work.”
Quite so. And it gets better.
“The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable. This is because these works represent the quintessential exercise of sovereign power.”
Notice the emphasis on “sovereign power”? We’ve seen the same thing in Canada. Several cases like these have gone to the Supreme Court and in each case the Court has ruled that if an entity is empowered to exercise governmental authority, then that entity is deemed to be a governmental authority. If the work they’re doing is governmental in nature, then these entities are governmental in nature. Not rocket science, eh?
But that contradiction of being both government and private is really profitable. Government Agencies like CSA claim to be private in order to profit from their governmental authority. You know, all of the power of government without any of the responsibilities; all of the freedom of private business without the constraints. You can see why they fight so hard to keep the contradiction.
The US Court resolved the contradiction pretty well with this one. Note the language; “Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.” [emphasis added]
Then the Court dispensed with the whole duck-and-cheesecake in their verdict, and in entertaining fashion; “As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable […] We conclude that no valid [private] copyright interest can be asserted in any part of the Code.”
That’s where it landed, and that’s good for us. In certain situations, and under a convolution of precedent, the Rulings of US Courts can be valid in consideration in Canadian Courts. It happens, happily, that this is one such situation, so we’ve sought -and received- permission to submit a supplemental filing to the FCA on the US Ruling.
The CSA had an awfully steep hill arguing that they privately own Canadian laws. Their argument entailed an overturning of Queen’s Printer copyright laws in every Province and territory in Canada, and in the Federal Government as well, and an overturning of 800 years of legal precedent, and the restriction of judicial (and other government) usage of legal texts, pending royalty payments to the civil servants who have already been paid to draft them.
Silly, yes. And their arguments in the FCA Hearing didn’t go awfully well either. I know, I was there.
This US Ruling in favour of public law just made CSA’s awfully steep hill awfully steeper. Are you familiar with schadenfreude? For our part, we’ll try to rise above this.
At CSA however, I predict tantrums. That’s been their default response to loss.
And after the initial tantrums, as their anger fades to fatalism, at the end of the day these pointless, profiteering bureaucrats will trundle to some swanky restaurant somewhere to drown their sorrows and eat their fill, perhaps of roasted duck. Or cheesecake.