He's giving you access, one document at a time

The Press Democrat | September 3, 2008
By Nathan Halverson

California's building codes, plumbing standards and criminal laws can be found online.

But if you want to download and save those laws to your computer, forget it.

The state claims copyright to those laws. It dictates how you can access and distribute them -- and therefore how much you'll have to pay for print or digital copies.

It forbids people from storing or distributing its laws without consent.

That doesn't sit well with Carl Malamud, a Sebastopol resident with an impressive track record of pushing for digital access to public information. He wants California -- and every other federal, state and local agency -- to drop their copyright claims on law, contending it will pave the way for innovators to create new ways of searching and presenting laws.

"When it comes to the law, the courts have always said there can be no copyright because people are obligated to know what it says," Malamud said. "Ignorance of the law is no excuse in court."

Malamud is spoiling for a major legal fight.

He has begun publishing copies of federal, state and county codes online -- in direct violation of claimed copyright.

On Labor Day, he posted the entire 38-volume California Code of Regulations, which includes all of the state's regulations from health care and insurance to motor vehicles and investment.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Malamud isn't just targeting California. He posted safety and building codes for nearly all 50 states, and some counties and cities such as Sonoma County and Los Angeles.

This is not uncharted territory for Malamud. In 1994, he pushed the U.S. Securities and Exchange Commission to post corporate filings online, opening the door for companies such as Google and Yahoo to create elaborate financial Web sites. In June, Malamud helped convince the state of Oregon to stop claiming copyright over its laws.

Now Malamud wants to do the same for California -- and everywhere else. And he's willing to go to court to make his point. He thinks the court system will rule in his favor, establishing a precedent that all government agencies must follow.

"If that happens, it opens the doors to innovation," Malamud said.

To get the California Code online, he digitally scanned a stack of documents that weighed 150 pounds. Now anyone can download the 33,000 pages, and print whatever they want from his Web site, public.resource.org.

Traditionally, governments provided publishing companies such as LexisNexis copies of laws to print and bind for people. It was practically the only way to get the laws distributed to people. LexisNexis claims to have the "world's largest collection of public records."

But the Internet has changed how people can share information. Increasingly, government agencies -- including Sonoma County -- contract with LexisNexis and other publishers to post their laws online.

"Most of the county staff now just look up the codes on the Internet," said Jennifer Barrett, Sonoma County's deputy planning director. "You can quickly search for keywords or a section. It's quite easy to find what you are looking for."

But LexisNexis does not format the online laws for easy printing or downloading, Malamud said. And that hampers how people can access the laws.

LexisNexis is the exclusive distributor of Sonoma County statutes, selling print versions for $220. It offers free access to the county's codes on the Internet, but its Web site is relatively archaic and doesn't include the features common in newer sites.

If the county provided those laws in a free, standardized digital format, others could design Web sites with more modern search and presentation features, Malamud said. Social Web sites could pop up where, for instance, plumbers could provide useful annotations to building codes -- perhaps blending Wikipedia with Facebook for a more useful law site.

LexisNexis declined to comment for this story. Its primary competitor, Thomson West, which publishes California laws under a contract with the state, does not claim copyright over government statutes, a spokesman said.

California asserts copyright protections for its laws, contending it ensures the public gets accurate, timely information while generating revenue for the state.

"We exercise our copyright to benefit the people of California," said Linda Brown, deputy director of the Office of Administrative Law, which manages the state's laws. "We are obtaining compensation for the people of California."

Malamud must get permission from the state to post codes online, Brown said. She was not familiar with Malamud's actions, and could not comment on what steps would be taken to protect the state's copyright.

Malamud might be seriously outgunned in regards to the financial and legal resources of the governments he is facing. But Malamud has a track record of defeating much larger foes, said Lawrence Lessig, a professor at Stanford Law School and founder of its Center for Internet and Society.

"I think his work is extraordinarily important," Lessig said.

While there is a lot of commercial interest in stopping Malamud, his strategy of showing how easy it is for governments to post laws themselves makes a strong argument to the public, Lessig said.

Malamud thinks it will take him another three years to establish that no one can assert copyright over any U.S. law.

Like in his previous battles, he's not going it alone. His nonprofit has received about $2 million so far, with money coming from Internet pioneers such as the foundation of Pierre Omidyar, who founded eBay. Malamud expects it will take several million more to finish his campaign.

He also has some heavy-hitting legal academics on his side.

Professor Pamela Samuelson, co-director of the Berkeley Center for Law and Technology, has also questioned the legality of copyrighting standards and laws.

"If it's the law, the public should have access to it," she said.

Samuelson points out that the idea of copyright was established to provide people incentive to create. People are given exclusive legal rights to their paintings, writings and other works because by selling those rights they can attempt to make a living.

There is no similar need for financial incentives to establish standards such as building codes, Samuelson said. For the most part, volunteers spend long hours drafting proposed standards for things like plumbing and building. Governments often take those standards and adopt them into law.

Once the standards become law, she doesn't think people can claim copyright protections. But like Malamud, she sees the courts making the final ruling.

"I don't think it's an airtight case for either side. But I think the law favors that if something is a law, it's in the public domain," she said.