Last Thursday, as you may have heard, the Oregon Legislative Counsel Committee (LCC) held a public hearing on its policy of claiming and enforcing copyright over much of the Oregon Revised Statutes (ORS).

The LCC had claimed the copyright since its inception in 1953. But those who testified—including a strong contingent from the Oregon wiki community—brought a familiarity with case law on similar issues, and modern Internet usage, that proved convincing; at the end of the hearing, members of the LCC voted unanimously to stop claiming copyright over any portion of ORS, and also showed some interest in pursuing more specific legislation in the future.

Background

The hearing resulted after the LCC ordered Justia.com, a California-based company that publishes the laws of many states on its web site, to take down its copy of the Oregon Revised Statutes. Justia partnered with Public.Resource.Org (PRO), a California-based non-profit, to retain an attorney and resist the pressure to remove Oregon laws from their site and, more generally, the notion that any portion of the ORS is subject to copyright. (Complete archive of paper trail between PRO and LCC available here.) The LCC ultimately invited Justia and PRO to testify at a public hearing.

Remarks by Dexter Johnson, questions from the LCC

Legislative Counsel Dexter Johnson introduced the subject, and outlined the issues associated with the assertion of copyright.

As the committee members questioned Johnson, and later the witnesses, their concerns became clear. Most generally, they seemed reluctant to tinker a policy that had been in place since 1953 without good reason, but not to the extent that they were unwilling to hear other views. Specific concerns included ensuring the accuracy of published versions of Oregon law, and protecting revenue streams associated with selling licenses to large commercial enterprises. Oregon law requires the LCC to provide funding for the production of the ORS, which amounts to about $2 million.

Rep. Richardson expressed a concern that business’ desire to raise ad revenue was driving the issue, and might be at odds with best public policy. Sen. Nelson was mindful of the expense of a potential lawsuit brought by Justia; he stated that pursuing a legal battle that the LCC was not assured of winning would be against the public interest. Sen. Burdick expressed interest in licenses published by Creative Commons, as a potential compromise between a full claim of copyright with custom licensing provisions and full release into the public domain.

Testimony

Note: links to written testimony below, in the “In attendance” section.

Testimony from various parties revolved around two central points. First, that the LCC’s claim of copyright is unconstitutional, and second, that it is bad public policy.

Carl Malamud and Karl Olson testified first, making arguments strongly based in case law history. Tim Stanley of Justia.org followed, expressing the impact that the LCC’s decision would have on his business, and also expressing a desire to serve as a facilitator in effective public discourse about the law. They had been pursuing a case in Federal court, which was clearly a concern of the LCC members.

The LCC also took verbal testimony from three Oregon residents, the authors of this blog post: Pete Forsyth, a collaboration consultant; Bart Massey, a PSU professor and open source advocate; and Amy Sample Ward, formerly of the Chalkboard Project and current project manager for Connectipedia.org. A number of others, including wiki inventor Ward Cunningham and Portland attorney Matthew Whitman, submitted written testimony.

Every legislator was thoroughly engaged with the process, asking specific questions and pursuing a broad array of related issues. They had a clear grasp of the underlying legal issues. However, they did not seem deeply familiar with the way the Internet is evolving, the licensing options that are becoming common in Internet applications, and the emerging culture of open deliberation about public resources.

After some questions and a brief deliberation, the LCC voted unanimously to cease pursuing copyright over the ORS, for the first time since 1953. They also showed some interest in pursuing legislation that might address some of their concerns, that would be separate from a copyright claim; Rep. Hunt, in particular, highlighted this point upon casting his vote.

We view this as an unqualified success, and a good foundation for pursuing legislation regarding public resources in the upcoming session.

Below are additional notes about the hearing and our reflections, as well as links to video of the hearing, and the written testimony submitted.

In attendance

Committee members: Representatives Rosenbaum, Richardson, Hunt (acting co-chair); Senators Courtney (co-chair), Burdick, Nelson, and Brown (via phone).

Legislative Counsel: Dexter Johnson.

Invited testimony (with links to their testimony): Carl Malamud, president of Public.Resource.Org; Karl Olson, attorney; Tim Stanley, president of Justia.com. Oregon State Bar submitted a letter, but did not present at the hearing.

Public testimony: Pete Forsyth, a collaboration consultant; Bart Massey, a PSU professor and open source advocate; and Amy Sample Ward, formerly of the Chalkboard Project and current project manager for Connectipedia.org.

Hearing Notes

Some important areas to note about the LCC hearing, include:

  • In the opening remarks, Mr. Johnson noted that Justia.org had published the ORS under its own copyright. This point highlights the legal issue at stake nicely. When a work is truly in the public domain—which PRO asserts all state law is—this is a widely accepted practice. It’s not uncommon for a publisher to assert copyright over public domain resources, or works deriving from them. In fact, this is exactly the issue behind the “share-alike” or “copyleft” component of many Creative Commons licenses. Many Creative Commons licenses, which were discussed in the hearing as a possible compromise, allow anyone to republish a work, provided that they grant the same right to their audience; this is the core distinction from leaving something in the public domain.
  • The committee members took a deliberative approach to their decision, seeking input on a number of points, and were transparent in their concerns and conversations.
  • All present committee members were actively engaged in the decision-making, asking questions of Mr. Johnson and all those testifying.
  • As Pete aired in his testimony and was agreed to by Mr. Johnson, the opportunity exists for the Legislature to design a specialized law concerning the ORS that lifts copyright but protects from malicious use. The example is that of the State Seal, as it can be freely used by the public except for when it implies wrongful endorsement or relationship.
  • The mention of Creative Commons and other similar licensing procedures for open content on the web pertained to the idea of possible use restrictions other than the state’s copyright that would work to provide security of rightful use.

What the ruling means

In the matter of Connectipedia.org

This new open source tool, combining wiki and database functionality, was designed with those working for the common good in mind. This includes foundations, nonprofits, state agencies, and volunteers. (You can learn more at http://connectipedia.org)

This collaborative learning tool allows users to share information, links, and annotations as they relate to program areas, geographies, and project work. To do so successfully, means users are able to quote, comment on, and link to materials on the web (including government websites and the ORS) freely as they pertain to the programatic topic areas and geographic data in the site. The decision of the LCC to cease pursuance of copyright of the ORS will allow state agency and government office staff, as well as foundations, nonprofits, volunteers, and others participating in connectipedia.org to include passages, titles, annotations and other documentation of the ORS in their shared learning on the site.

In the matter of Wikipedia.org, Justia.org, and other websites

Much like the case of Connectipedia.org, the LCC decision means communities contributing to Wikipedia.org and other shared knowledge wiki/websites can quote from the passages, titles, numbering and annotations of the ORS to more accurately explain issues and work.

Justia.org can now continue to archive the complete ORS on its website (where it was already posted, without advertising, for free), as well as previous versions of the ORS. The decision also allows for groups like Justia.org to add additional functionality outside of the text of the ORS so the laws can be searched and compared between other states or other years.

In the matter of economic development and open source software

Bart Massey’s testimony focused on the development of an open source software economy in Oregon. He presented the current issue as appearing related to the Legislature’s failure, on two occasions, to pass legislation that would require state agencies to consider open source software when seeking software-related bids. He argued that for a state that is committed to fostering this developing economy, it is essential to adopt laws and policies that are not unfriendly to its community; and that doing so would not do Oregon’s international reputation any favors.

In the matter of other state works

(Future legislation) photos, charts, maps, etc. produced by government entities should be made available in the public domain. Again, both as a matter of law, and of public policy.

Resources

Links and media

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