Just last week, I was ruminating on the viability of state claims of copyright in government records. At the time, I was pretty confident that a state wouldn't be crazy enough to claim copyright in its own statutes, both because caselaw suggests this would be legally invalid and because it would be shoddy public policy. Now, the Legislative Counsel Committee of the State of Oregon has sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee's claim is not as outlandish as it initially sounds, but it is still quite problematic.

The Committee is not claiming copyright in the text of the law itself. Smart thinking -- Tim Armstrong at Info/Law does a better job than I could marshalling the cases suggesting that any copyright claim to the text would be doomed. (The most exciting of these cases is Veeck v. Southern Building Code Congress Int'l, 293 F.3d 791 (5th Cir. 2002) (en banc), if only because it's from this century.) Instead, the Committee claims copyright in

the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law.

It's hard to evaluate how much original material the Committe might have added to the Revised Statutes without an in-depth comparison of the finished product with the raw output of the state legislature. But, off the top of my head, it looks extremely suspect to claim rights in the overall organizational structure and the numbering for each statutory section. First of all, the arrangement of statutory sections based on subject matter created by the legislature and numbering them one after the other probably does not rise to the (admittedly low) level of originality required for copyright protection. Moreover, recognizing the state's copyright in these features would effectively allow it to bootstrap a monopoly on the underlying statutory text. Sure, courts have recognized that compilers generally can protect the "arrangement and display" of unprotectible materials, but I can't see how anyone could publish an intelligible competing version of the Oregon statutes without relying on the officially recognized structure and section numbers. This is the law, after all. You can't just make up section numbers and put the titles, chapters, and individual sections together in some fanciful new way. That would defeat the whole purpose of giving the public access to statutes so that it might "know the law." Nash v. Lathrop, 5 N.E. 559, 560 (Mass. 1886).

Oddly, Carl Malamud of public.resource.org, another online source of free caselaw and statutes, has preemptively entered the fray. He wrote to the Committee on April 13, indicating that Justia had shared its cease-and-desist letter with him and notifying it that he had disabled the public's access to the Oregon Revised Statutes on his site. He followed up on April 15, notifying the Committee of various technical deficiencies in the version of the statutes publicly available on the Legislative Assembly's website. In general, I'm a big fan of Mr. Malamud and his projects, but I think his letters in this case muddy the waters by bringing up a host of issues unrelated to the Committee's copyright claim and by exagerrating the nature of those claims (e.g., the April 13 letter says that the C&D claims that "these state statutes are state secrets," which it emphatically does not).

This is one to monitor.