Sued for copyright infringement for putting legal materials online
nytimes.com
nytimes.com
According to the article, 20 other states around the world are making similar copyright claims.
The written laws of a state (along with annotations commissioned by the state) are, in effect, the source code for running the state.
Citizens must behave as specified by this code. Otherwise they are fined, incarcerated, or worse.
Shouldn't the code that controls people's lives be free, open-source?
What is unreasonable, and why this is getting attention on HN is because Malamud's actions in publish the annotations has been described as "terrorism". Perhaps this is just one boneheaded lawyer speaking carelessly, but maybe it's a deliberate attempt to conflate political activism, which may often involve breaking the law or defying authority in a harmless way in pursuit of a political goal, with terrorism, which involves breaking the law in a violent or dangerous way for the same ends. It's important that such a distinction is kept, and the state cannot depict any and all political motivated misbehaviour as "terrorism"
The only official version of the law is the annotated one. Thus the only official law is deemed secret without payment by the state. Thus you cannot know the true law in Georgia without paying.
Not to mention the official annotations are considered authoritative. Lawyer and judges reference them, making them part of the law.
These annotations do not appear to be essential to understanding the law. They appear to be explanatory aids.
At least 3 judges disagree with this (quoted from the article):
> “The annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws,” Judge Stanley Marcus wrote for a unanimous three-judge panel of the court
It seems like you're arguing that it's reasonable to keep these annotations private because it's already impossible to understand the law without other stuff that is private, not because these annotations are not essential to understanding the law.
The relevant distinction is between what sources are binding and what sources are not. The statutory text is binding. Case law in the same jurisdiction is binding. The annotations produced by a private company, or private scholarship published in a treatise, are not binding.
What's surprising is not that it's very hard to understand the law; it's big and messy and evolving.
What's surprising is that in practice one has to pay money to even try to understand what the experts are talking about. It's impossible to find all the relevant texts to study in a library, for example. That seems deeply undesirable; it exacerbates the problem you described of people being expected to follow the law when they can't possibly understand it.
He described his own actions as "terrorism", and the state is throwing that back in his face by basically going "See, even he called it 'terrorism'! That means he knew what he was doing was wrong!"
It's really petty and juvenile for them to do this, but they aren't making an actual allegation of terrorism.
The federal government of the United States claims this as well, for example see Gilmore v. Gonzales.
You are subject to classified laws and regulation to which you do not have access.
It seems to me that the idea of secret laws is incompatible with the very foundation of liberal democracy.
That's not entirely correct: http://volokh.com/posts/1134369043.shtml
> Now, just to be clear, I have no idea whether the TSA's decision not to publish the text of its regulations is a smart one. I can understand why they don't publish the names on the No-Fly list, but it's not obvious to me why they can't publish the regulation or rule (or the relevant part) requiring an ID. Maybe this is a misguided law, or an appropriate law being implemented in a misguided way. I don't know; as I said, this isn't my area of expertise. Further, I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.
> At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.
> Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file a version of its brief under seal. According to the government's claim at oral argument, the version of the brief filed under seal would have included the text of any regulations TSA follows. The Ninth Circuit rejected the motion without comment, however, and if one judge's comment at oral argument is any sign, it may be because the actual text of the regulation isn't essential to the case. As best I can tell, then, DOJ hasn't filed the undisclosed regulations with the Court because the Court rejected its motion to do so under seal, and the alternative, filing it in open court, would have defeated the purpose of having the text of the regulations unpublished.
Correct.
> ...and can be litigated in criminal . . . court...
Overreaching. This rarely happens.
> ...litigated in . . . not civil court...
They certainly can be litigated in civil court. They almost always are.
> ...you can be arrested for violating them...
Extreme overstatement. This is almost never the case.
Fair notice is pretty narrow. I am pretty sure (could be wrong), that there is no requirement to codify even. If a state wanted, it could leave its laws uncodified and require you to go through every page of legislative records to discover what the law is. What it can’t do is pass literally secret laws and then hold them against you. There are states that still have common law crimes inherited from before the revolution. These are crimes that the state legislature has never defined, but are recognized by judicial custom (though it is widely agreed that even the courts in those states could not define new crimes in this way)
What is this?
Where is "The Republic of Georgia" documented as a common name for Georgia?
"The Republic of Georgia" was the name of the country Georgia prior to the breakup of the USSR.
https://public.resource.org/about/donate.html
A recurring monthly donation is probably most valuable to them (see "Other Donation Options").
That said, it is absurd that materials that have the force of law (being consulted and cited by judges themselves in rendering judgements) can be controlled by a commercial entity. I wish Malamud the best.
Carl, fortunately, is a bit more laid-back than Aaron was — I don't think suicide is in the cards — but we should absolutely see this lawsuit as a continuation of the same appalling, absurd caricature of justice that killed Aaron.
From the federal court opinion [1]:
"The annotations were initially prepared by Mathew Bender & Co., Inc., an operating division of the LexisNexis Group, (Lexis), pursuant to an agreement it entered into with the State of Georgia. Under the terms of the agreement, Lexis is responsible for the ongoing publication and maintenance of the Code, and all editorial, publication, and distribution costs. In exchange, Lexis was given the exclusive right of publication by Georgia. But, notably, Georgia holds the copyright in the annotations in its own name. The publication agreement also specifies what types of annotations should appear alongside the statutory text, and provides detailed and specific directions as to how Lexis is to generate and arrange this content. The agreement also provides that the Code Revision Commission (the “Commission”) supervises the work of Lexis and has final editorial control over the contents of the OCGA.
The Commission is a body established by the Georgia General Assembly in 1977 that was originally tasked with undertaking the recodification of all of Georgia’s laws, a project that had not been done since 1933. The Commission is comprised of Georgia officials, including the Lieutenant Governor, four members of the Georgia Senate, the Speaker of the Georgia House of Representatives, four additional members of the Georgia House of Representatives, and five membersappointed by the president of the State Bar of Georgia. Following its successful recodification of Georgia law and the publication of the OCGA in 1982, the Commission is now responsible for updating the OCGA and supervising Lexis’s editing and publication of the OCGA."
[1] http://media.ca11.uscourts.gov/opinions/pub/files/201711589....
I feel like there should be some personal penalty for those unborn government who willingly engage in acts that are not in the letter of the law and cost the taxpayer money.
Incidentally, "copyright terrorism" is an expression the Church of Scientology lawyers have used against critics nearly 25 years ago:
> The church said that it supports itself through donations for these services, and the former member was engaged in "copyright terrorism."[1]
* * *
[1] https://www.rcfp.org/church-scientology-sues-critic-seizes-c...
The defendant was told he could publish the actual law, and his own analysis. However it gets really murky when “Georgia’s courts have cited to the annotations as authoritative sources on statutory meaning and legislative intent.”
I can see the argument against this being freely publishable. If I wrote a textbook which explains some badly written and archaic laws really well, and lawyers and judges started to look to it as the de facto law, should that void my copyright? On the other hand, the public should have free access to the interpretation of the law as enforced.
Given copyright only exists under the law, in the rare case that this happens, a sensible fudge would be to make a compulsary purchase of the copyright for the assessed market value, so it can become public domain. Much in the same way as you would do for any other property when you need to build municipal infrastructure through it. The law is essentially municipal infrastructure anywazy, so it isn't that much of a legal stretch.
Side-note: I don't really care that my above post has been downvoted, but it seems pretty counter-productive to the HN cultural goal of intellectual discourse for people to downvote input from actual practitioners in the field just because they don't like the answer.
I would expect any reasonable government to do one of:
- Write their own, non-copyrighted version of the law in question.
- Pay you decent amout of money and become copyright owner prior to including your textbook in the official law code.
I think that's the primary difference between civil and common law: in civil law legal system you cannot have "de facto laws" - either something is codified in form of (non-copyrtightable) parlimentary bill or executive order, or is not a law at all.
This isn't effectively true in practise. While there is no foundation of stare decisis in Civil law, there is the commonly recognised concept of jurisprudence constante (stable law). That is: judges will often look to precedent in making decisions, but are not bound by it. A pattern of past decisions will often be highly persuasive because there is interest in not interpreting the law arbitrarily, and courts tend not to want to make a decision they expect will be overturned on appeal.
This sentiment discounts whole segments of the population with mobility or visual impairments, for starters. Why shouldn't courts become more open over time to scrutiny, taking advantage of technical advances to increase transparency and by proxy faith in the institution of the courts?
So its the interpretation that is used. Then shouldn't the interpretation be open to public? What kind of justice system is this?
The lower court ruled that the annotations were public domain, and the Supreme Court will (hopefully) concur. The state (of Georgia) has a ... requirement(?) to defend (and enforce) the statutes (and contracts) as passed by its legislator. If the state (of Georgia) didn't enforce its own laws, now, that would be a lawless, chaotic state; they'd also not be able to engage in contracts with companies (too much risk). Instead, this thing is going through the well-understood & time-worn constitutional process, as intended: the state (of Georgia) did a thing; a citizen did a thing; they sue each other; and, now, the Supreme Court will decide: is the citizen in the right or is the state (of Georgia) in the right.
The kind where a federal court tells the State of Georgia to do exactly that.
The best that money can buy.
I think it is time for people to stop having faith in the legal system. It is dangerous waters to tread, but our current system is filled with abuses that are only allowed to continue because people maintain faith.
Are private companies actually writing annotations that affect judges decisions? That sounds like they are effectively writing the law.
Or, if they're just compiling judges' writings, how do they have copyright on those?
That isn't unprecedented. When Congress passes a law, the executive branch has wide discretion on how to interpret the law into executive action.
What you do is you pack your laws into something else for example a new fancy construct you have just build. Let's call that new construct "bubbles". So your law is now inside your bubbles and you put copyright on you bubbles... Until the SCOTUS says "NO!" again.
It's 3y/o playing government for their business friends.
For example, the law might say that it's illegal to operate a pressure vessel unless in satisfies all the requirements of ASME Section VIII Division 1 or 2. As you might guess, the ASME boiler and pressure vessel code is a copyrighted work owned by the ASME.
The law says: pressure vessels must be pretty sturdy even when really hot.
A standard comes along and proclaims to abide by said law, while fleshing out the details of how sturdy and how hot. Lawyers and judges then make reference to it as what the law always meant, and effectively give it legal force.
Sometimes it's a bit less direct. They law might require a vessel operator to have insurance and the insurance company will demand that the vessel conform to some private code.
There isn't always a "correct" in any way you can prove. Often you just have norms.
If someone heats the vessel up to an arbitrary temperature X, and it explodes, yet the standard which everyone except you followed said it must withstand arbitrary temperature Y, then the court may be inclined to ignore your arguments that temperature X was good enough.
Rather than being something you can derive from nature, laws and standards often contain arbitrary values which take into account margins for human error or other "reasonable" measures.
In this way, norms gain legal power.
So although using 'terrorism' is clearly ridiculous, the rest of it is not so clear cut.
Also note that the laws with the annotations are available in public libraries. So freemium.
I don't understand why they need a relationship.
Good annotations are incredibly valuable. When I was in law school, both West and Lexis were publishing annotated versions of both federal law and the law of every state, entirely on their own. Pretty much every lawyer bought the relevant West and/or Lexis products for their practice areas, and pretty much every law library bought more complete sets of these products.
Has something changed making it so the publishers need financial encouragement from the state to make annotating worthwhile?
This is a separate from the (also unbelievable, to me) issue that a paid private corporation writes these annotations that are then referenced with the force of law by the courts.
But delving into the details the failure is judges and other referring to annotations of laws as the interpretations of the laws which then build history and are held precedent, without first making sure any such interpretations are freely available to the wider public.
The judiciary is a specially empowered part of democratic process and has powers but also responsibilities, and has a primary responsibility to uphold the democratic process and free access to the the entire process of laws and their interpretations, and a deviation from this calls into question an individuals suitability for such an important role in the democratic process.
Serious question.
What do, say, reporters in Georgia do when they write a story about court proceedings or what-have-you? Is the state code just never referenced? Or explained? Or even just written out so that people can see what happened and how it worked?
Is the general public simply not allowed to know what laws they live under? Or is it that only people authorized by the government are allowed to tell people what the law says? (Which, to me, sounds even more problematic.)
It says that court decisions are always public. As are statutes. You can't, to my knowledge, render your court decisions "not" public, by simply referencing an annotation and then saying, "well, we have a contract with a publisher".
This legal obligation cannot, to my knowledge, be contracted away. So what kind of contracting was done to make this happen? This is my question. How did they manage this so that a take down notice is suddenly legal, as opposed to explicitly illegal?
Clearly, this shouldn't be possible: a work contracted by the state is a work by the state (ie a work for hire), and should be public domain. But there's money involved, and that tends to be the deciding factor in legal decisions in the US.
What's in this contract that makes that legal? That's what we need to get to, because whatever it is making this behavior legal, it has to be removed. And it has to be made explicitly illegal by the Supremes. (You wouldn't think you'd need to do that, but there's always a few politicians everywhere who can't be trusted to act in good faith.)
In a "we the people" mindset, it's obviously dumb that citizens shoulnd't have full access to the law and anything needed to understand it.
But if you're a dispositional authoritarian, then you like having power and serving those with more power. Rule of law runs counter to that, so dispositional authoritarians won't like making it easy for citizens to challenge or restrict their use of power.
The other thing is that there are two approaches to commerce. One is where people relish a free-market competition. A lot of restaurant owners are like this: they are generally happy that other restaurants exist, and see other restaurant owners both as competitors and colleagues. But there's also what I think of as the crony capitalist mindset, where monopolies and exclusive sweetheart deals are the desired outcome. At least some, and perhaps a lot of government contracting is like this. Authoritarians give contracts to crony capitalists; crony capitalists give money and support to authoritarians.
In that latter model, citizens are a resource to farm, not the ones who run the government. So of course anybody upsetting that cozy authoritarian approach would be seen as a terrorist.
The legal brief from the plaintiff, hyperlinked from the NYT article, dated 2015, actually says:
> Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.
* https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...
It is purporting to quote M. Malamud xyrself, describing xyr own acts. To see whether that is actually true, one follows it to exhibit 2.
* https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...
* https://archives.cjr.org/campaign_desk/carl_malamud_public_p...
... where we find that it is a 2009 article from Columbia Journalism Review that says:
> It was a threat to commit “standards terrorism,” as Malamud later put it;
... with "later put it" hyperlinked in the original CJR article to https://museum.media.org/eti/ and the court exhibit containing that same URL explicitly. So the question is whether M. Malamud indeed described xyr own actions as "terrorism" there.
Indeed, xe did:
> While Tony certainly sympathized with my goals, I wasn't quite sure how he was going to react to this form of standards terrorism.
* https://museum.media.org/eti/Prologue01.html
So: Back in 1992, M. Malamud describes xyr own actions as "standards terrorism". That's picked up by Clint Hendler of the Columbia Journalism Review some 17 years later and directly ascribed as M. Malamud's own words; and 6 years after that, the plaintiff points out that that is how M. Malamud characterizes xyr own actions. Then the New York Times, the Los Angeles Times, the Atlanta Journal-Constitution, and others misreport that as the plaintiff accusing M. Malamud of terrorism.
And the falsehood that the state of Georgia claimed that M. Malamud was a terrorist becomes the accepted truth to such a degree that even Wikipedia's article on Carl Malamud has stated it for the past 4 years.
* https://en.wikipedia.org/w/index.php?title=Carl_Malamud&diff...
Something like this happens quite a lot, to a greater or lesser extent. Nobody (well, copyright abolitionists would, out of principle, but I'm talking people who just want to get stuff done and get on with their life) would argue that I would lose copyright to my book, because it's so successful.
Now the IEEE pays me to write said book. This is where things become murkier (maybe). Because now, has my book become an extension of the standard? Does it depend on the relationship between me and the IEEE? Say, if I have access to drafts of the standard, and I provide feedback, does that make my book closer to being part of the standard? If my book just has clarifications and no opinion in it, does that make a difference? I would still say that, as long as it's possible to implement the standard without the book, it's not 'part' of the standard. But as the standard gets less clear, at some point, it becomes impossible to implement something in an interoperable way without having the book. Should I lose copyright my book in such a case? And does it still matter whether the IEEE has paid for it?
One difference between the IEEE and legislators is that one can say 'screw the IEEE, I'll just make my own protocol'. You can't do that with law. Is that sufficient a difference to make someone lose their copyright? Or should the IEEE just have paid me outright, as a contractor, to write the book, so that they can give it away for free? But then why bother with the book at all? After all, the book is just for making things easier, it's not a 'source' as such, regardless of how much easier it makes implementor's lives.
I don't think this is as clear or as outrageous a case as people are making it out to be here. We don't want to discourage people from making annotations, summaries and explanations. Maybe legislators should just write more clear laws to begin with. But the more you do that, the more you open yourself up to 'backdoors' and 'hole in the law' trickery. Not to mention that it becomes even harder to get political will to support a text in the first place - making perfect the enemy of good enough.
It makes going to the source very important as my previous reasoning used to be “Are you against Terrorism/Sexual Predation? Yes. Cool, here’s how we deal with it.”
Now is much more labor intensive as it’s now “are you against Terrorism/Sexual Predation? Well, that depends on the particulars...”
> [...] The last time the Supreme Court addressed the matter, in 1888, it ruled that “the whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.”
A solution to how ridiculous old laws are is automatically expire them. That way, the politicians are forced to reevaulate them.
England had a case in the 1800s where everyone forgot that trial by battle still existed from the middle ages. Someone invoked it and it was upheld, but parliament quickly found it within them to repeal the law after that case.
An approach with sunset dates ensure the most important laws are at the forefront of national discourse, and ensures that lawmaking doesn't degenerate to "keep trying til you pass it, then smooth sailing because no one ever actively looks at these things anyway."
Legislated law is not something to be treated lightly; especially at the Federal level in the United States, where the protection of liberty is a first class objective of the government's existence in the first place.
Vote to uphold, I assert, is a clearer demonstrator of the Will of the People rather than vote to repeal. Vote to Repeal allows refuge in obscurity for keeping laws in force that most would not even wish to have in effect just by virtue of the majority of people being ignorant of them.
Also, it cuts down on the tendency of law scholasticism to create a privileged class through the exploitation of loopholes, and archaic blue laws.
If a law is truly worth having, let it be tested in the fires of reaffirmation. That which is without question, should pass with minimal controversy. That which is in woeful need of update or reformulation, will be brought to the forefront of the national consciousness and reshaped to better serve the interests of the Public. That which is no longer the Will of the People may be safely set aside to fade into the gentle repose of history, and the Public shall enjoy a restored liberty for it's having done so.
My two cents.
Each aspect of the law is carefully considered and debated every N years before being reaffirmed or rejected?
Or,
Every N years the legislature passes a pro-forma "the laws are still the laws" bill, which no one bothers to read or debate or modify in more than a cursory sense?
Every N years, a pro-forma bill is drafted, but a few legislators will take the opportunity to grandstand about the existing legislation that relates to the theme of their upcoming re-election campaign. This result in a few high-visibility but ultimately low-impact tweaks.
Two edge cases will also arise less frequently. First, the extra importance of the pro-forma bill means that fillibuster threats have extra leverage. This will play out similarly to the government shutdown. Second, in instances where one party controls both houses and the Presidency during re-up time, sweeping legislative reforms are more likely (e.g. repealing Obamacare would have been easier if repeal was the default).
Laws are, and should be treated as maintenance items. If you can't be bothered to have a token yes vote, it doesn't belong on the books.
If nothing else, it also keeps the culture intact, and gives a more realistic rendering of your long term representatives voting proclivities and priorities. It forces politicians to take a position, and live up to it instead of taking refuge in building their career around niche special interests.
I acknowledge there are good points being made, and that yes, there has to be a willingness to change the way we approach the legislative process. I still believe it would not be as problematic as people think.
There's second and third order incentives created to have better discipline with regards to the structuring of legislation in order to facilitate easy processing by those bound by it, and those charged with reaffirming.
This manifests as a disincentive to create rider networks on unrelated bills, the ability to structure congressional committees around bundles of related subject matter (a procedure that currently works), and it allows the new voter to at least have their voice heard, and vote counted in regards to fundamental issues of the laws they are bound by. This takes it from something other people forced on you, to something you voted for. This would greatly increase the closeness of the voter to their government. Should dramatic upset happen, it represents a signal that a cultural consensus needs to be arrived at.
I doubt that the vast majority of people are so deluded to not be able to agree on the basics on a regular basis. I do, however, think that there may be a preference for less mainstream political movement in the absence of a requirement to agree on the fundamentals with regularity. Polarization becomes much more difficult when we're forced to come to a compromise to preserve what is truly important.
And what is truly important is that which can be passed no questions asked.
Deadlock is the gift of the Founders, but getting something done, even if it was a foregone conclusion, goes a long way to maintaining faith in the system.
And guess what? In X so many years, if the legislative process doesn't pan out...just let it drop, and go back to what worked.
Nothing even structurally changes. It's just default bill behavior that does.
I’d love to type more but I’m on my phone and down to one thumb due to an injury. Sorry for not engaging more on this!
The problem both legislators and developers face is one of triage. There is always a high-priority backlog, and this means trivial issues that are stupid but not severe tend to go unaddressed unless someone goes on a personal crusade.
In the abstract, I agree that sunset would be ideal, but in practice I worry it would cause even more of a triage problem than legislators already face, which I think this proposal would address.
This sort of legal amnesia has major drawbacks. Hand politicians the opportunity to make crisis and they'll take advantage of it. Do we really want debt-limit style brinksmanship around murder statutes?
Moreover, cleanly sunsetting laws within our common law system is hard. Case law builds on statute. Regularly wiping away vast portions of case law will have unanticipated consequences.
Of course with neccessary complexity so high today that wouldn't be that workable - every individual EPA regulation may be important but only come up to specific subsets.
The closest thing I could see as viable would involve Cryptography and standard law files as the mode of distribution and a server which accepts uploads of valid laws - which could be defaulted to "one person with another server ensures everything remains in force".
Do they? Or do they think they're somehow immune to murder being suddenly legal?
Yes. Presumably politicians don't want to be murdered by their opposition. It wouldn't lapse more than once.
There are a lot of good reasons that this is a really bad idea. But the fundamental reason is that there are always a few politicians everywhere who can't be trusted to act in good faith.
It's a part of the U.S. legal code that can't even be changed by legislatures with sudo access.
(Although SCOTUS can apparently update the firmware.)
If only we had some kind of distributed system that could be used, to maintain a complex codebase with thousands of contributors... oh wait we already have git. Imagine if federal law was a monorepo, and state, county, city laws were branches. It sounds like a nightmare to manage, but lawyers are increasingly tech-savvy and, for example, bitbucket allows one to edit files from a web interface and immediately create pull requests. Additionally, there are already consensus-based and k-of-n cryptosystems that could be used to review and sign pull requests -- this could be the basis of a true technological republic.
What happens is you have mass renewal laws, which end up being de facto non-expiring laws with a veneer of expiration.
My argument sounds like “can’t work 100% so do nothing” but laws that are given sunset clauses because of their controvesiality (e.g. USA Patriot Act) are routinely renewed as their very existence seems to justify their continued existence, while the sunset clause had been added to mollify objectors.
And on that "the whole work done" is also another prominent anachronism of US flavour of British common law.
Other common law countries, let alone mainstream civil law countries do not maintain automatic correctness, authoritativeness and infallibility of institute of justice, from which stems the absence of unqualified immunity of judges in a lot of nations.
A scope of legal authority must be very strictly and clearly defined, and based upon constitutional and fundamental legal principles, with easy pathways to invalidate it if done in wrong. In other words, there must be critical criteria of its validity.
In US on other hand, in principle and in theory, a judge or juror can issue a ruling completely contravening a law in most the most antithetical, polar way, and nothing will be able to do anything with him, and his ruling will be legally valid.
Is that not what appeals and jury selection processes are for?
Or to eliminate prosecutorial discretion.
The actual case seems to be a copyright dispute over whether or not the State of Georgia can copyright its own laws.
I disagree with that claim and I think it is irresponsible for a lawyer to call what he was doing a "form of terrorism" or "part of a strategy of terrorism". I think it's even more irresponsible for a lawyer to equate what he was doing and his words, a "form of standards terrorism", to unqualified "terrorism".
Now every time this guy is googled, his name will be associated with terrorism, thanks to this suit, putting doubt on his work, which is meant to balance the power between the state and its citizens. You don't see why the state calling this guy a terrorist is reprehensible?
But it's not a story about Georgia trying to smear Malamud, it's a fairly dry story about the copyright case[1] they're bringing against him. Responsible editors don't take legal stories about appelate copyright cases and slap "terrorism" in the headline, they just don't.
[1] It's even a fairly subtle copyright case. The laws themselves are public domain, what he copied was the annotations (e.g. links to relevant court cases) that appear in the heretofore-privately-published law texts. Do curated links count as copyrightable material? I don't know! It's an interesting subject and I'm interested to read about it. But not when it's headlined as a terrorism accusation.
The federal court opinion [1], which rules in favor of Malamud's NGO, does not once mention "terrorism". The case is a copyright one. (And an important one at that.)
I'm guessing the quote was from the lawyers' remarks, not the actual charges. So serious faux pas more than abuse of power.
[1] http://media.ca11.uscourts.gov/opinions/pub/files/201711589....
We don't have any context beyond a Georgia lawyer saying "strategy of terrorism." Given how broadly that term is used nowadays, sort of like "war on X", this could have been a reference to Public.Resource.Org's legal or PR strategy or many other things.
It's a terrible choice of words, particularly for a government lawyer. But I don't see the evidence in the text to support the headline that he was accused, formally or informally, of terrorism. (Nor that he believed he was fighting terrorism, versus copyright, accusations or charges.)
TL; DR A lawyer using the term "terrorism" loosely is not the most interesting facet of this case.
Actually, we have both context and original source documents, going back to 1992. Consider discussions on this page, which I suspect will include lots of people arguing the accusation, as a case in point of how very few people read and do their research.
If the government lawyers said "he is behaving like a terorrist" or "this is terrorism," I'd agree with you. But we don't know that. We just have government lawyers describing something, within unknown context, as a "strategy of terrorism" and a headline running that into an accusation.
Whether and how it happened is irrelevant.
It's a fair challenge. My response isn't that you're wrong, just that the article provides insufficient evidence for me to agree with you. Describing a legal action as a "strategy of terrorism" is, to me, a faux pas. Describing a person's activities as a "strategy of terrorism" is abusive if employed to dissuade them from continuing a legal battle and possibly defamatory.
But I do think it is bad practice for the state to turn up the rhetoric in its legal disputes when it turns a legitimate adversarial dispute about the legality of actions into an improper attack on a citizen’s character. But on the other hand, there are plenty of circumstances where we feel it is totally proper (e.g. criminal prosecutions, but probably also lawsuits for fraud, gross negligence, and intentional physical injury). It is hard to balance the state’s dual roles as neutral arbiter/enforcer of the law and adversarial participant in it. The executive/legislative/judicial split helps, but does not solve it.
USA is one of few countries where there is close to nothing amounting to codified criminal abuse of office laws, the few criminal abuse of office laws are state level in USA. The wider official crimes class of offences, is also poorly represented, if not to say not being recognised as such.
Even if you compare USA to worst offenders on that front, from how it was in USSR, to China and other joke polities. They did jail more office abusers than US. Sounds silly, but look at the digits.
While this was never indicative of political commitment, and USSR was horridly corrupt through its whole history, there was at least a minimal acknowledgement that completely useless/incompetent people must be kicked out from official positions, or after demonstrable public screw up.
Here is a list of things amounting to official crimes in self respecting polities:
- Criminal incompetence
- Criminal dereliction of duty
- Insubordination
- Providing criminal agency
- Criminal conflict of interest
- Exceeding official authority
- Conduct of crime under official authority (have no idea for a better translation)
- Criminal deprivation of rights
- Failing official audit
- Criminal violations of cadre/appointment/recruitment policies/procedures
- Loss of official records/communications/accounting
- Income/assets beyond known means while serving in office (a charge as such, literately)
Any real code will have few times more of the above, and of stuff nowhere remotely considered an official crime in USA.
There is a lot of law, at the federal and state levels, concerning abuse of power [1]. This takes the form of both statutes, which tend to use the term of art "malfeasance in office," e.g. [2], and court precedent (both of which are the law).
> there was at least a minimal acknowledgement [in the USSR] that completely useless/incompetent people must be kicked out from official positions
Office abusers tend to lose their office through elections and term limits. Where this safety valve doesn't exist, a more pointed approach is needed.
[1] https://en.wikipedia.org/wiki/Abuse_of_power
[2] https://law.justia.com/codes/louisiana/2011/rs/title14/rs14-...
And that law is of very abstract, and ephemeral kind — the very criteria of fault in how USA approaches official crimes.
And as I stated above, most of that law is state level patchwork and case law rather than federal level statutory rules.
No, it's highly specific, drawing from cases going back to the founding of the Republic.
> most of that law is state level patchwork and case law rather than federal level statutory rules
Statute isn't stronger than case law. They're both law in a common-law system [1]. (Insider trading, for example, isn't defined in federal statute, but it's still commonly penalized.)
No, it isn't.
Even if you do not consider the moderately modern exercise of official crimes laws, the few that were used are few. As what I know of their historicity, most of early work on that lines were about official crimes being an offshoot of treason/sabotage/sedition/subversion and such.
And if you start discussing their moderately modern exercise, then, well, as I stated above, the court record of abuse of office cases is of charges not reaching the court to begin with or being dropped.
> Statute isn't stronger than case law.
Statute is a clear writing in text saying "things A, B, and C are a crime." When it comes to that, case law is weaker because it is much more open to interpretation with it being a collection of opinions, interpretations, philosophising, from time to time bordering on "legal theology."
It is much weaker against official crimes in reality, when DAs can wiggle their way out of need to fill charges using numerous excuses provided by law's openness to interpretation
P.S. That Louisiana law that you pulled, well, is a Louisiana law, not federal.
For corruption, charges tend to come up. For more ambiguous forms of abuse, the investigations tend to do the political damage required to push people out of office. At the end of the day, you want a high bar for removing elected people from office. (You want a higher bar still for jailing them.)
> Statute is a clear writing in text
So are court opinions. Clear writings, in text, that describe the ruling's logic in detail.
Statutes can be re-interpreted by courts just as easily as precedents--it's a total myth that one form of the law is weaker than the other. If anything, case law is more concrete than statute--tangibly speaking, what courts decide is more important than what you think the text of a statute means.
Or anyway that somebody had to carry the can for unfortunate events: saboteur engineers, murderous doctors, what have you.
law enforcement falls behind the false state of qualified immunity, which can apply to every person in the confines of law enforcement, and that derived from a bad court ruling that perpetuates till today.
worse, people do not understand the full import of many laws and instead focus on how they negatively affect a disliked group. this allows politicians at all levels to protect themselves as well as punish those they don't like all with public support.
Abuse of office happened not be the part of Ch.11 of US Criminal code (Title 18, not 25) as was told by a comment below
The second major error is that you conflate the presence of such criminal laws with anti-corruption measures. In reality, the existence of laws that allow jailing someone for making mistakes at work ("incompetence," "failing official audit," etc.) is a tool of corruption. Simply appoint the right auditor and you can eliminate anyone who disagrees with you. Making poor job performance a crime, for someone with no mens rea, is inherently totalitarian and abusive.
Lastly, it is simply not a factually correct statement to say that the "USA has very little in terms of law on personal liabilities of officials and their scope."
(a) First, I'll address the support you cited. Your reference to 25 C.F.R. § 11.448 is inapposite: it doesn't support your position because it isn't a statute, and it is utterly inapplicable anyway because it only applies on certain Native American reservations. A Bureau of Indian Affairs regulation was not a good choice for you here. See https://www.law.cornell.edu/cfr/text/25/11.448 and https://www.law.cornell.edu/cfr/text/25/11.118
(b) I'll address the presence of the law you claim does not exist.
(i) Brief overview. Title 5 of the U.S. Code (5 U.S.C. § 101 et seq.) is the statutory law that governs federal employees (except uniformed members, who are governed by title 10, title 14, or title 32, depending on component and status). Additional crimes are in title 18; additional constraints are found in specific titles depending on subject matter (e.g., the VA is governed by title 38).
(ii) Specific examples (procedurally): Chapters 43 and 75 provide specific guidance on holding federal civilian employees accountable for malfeasance of any sort. Any lingering questions you have about the U.S. system should probably begin there.
(iii) Specific examples (substantively): Since criminal statutes seem to hold special significance for you, let me direct your attention toward 18 U.S.C. § 201 (bribery), 18 U.S.C. § 203, 209 (supplementation of salary), 18 U.S.C. § 205 (representational conflicts of interest), 18 U.S.C. § 208 (personal conflicts of interest), and so on. Additionally, take a look at 10 U.S.C. § 892 (military failure to obey an order and/or dereliction of duty).
I give you +1 for a good, substantiated argument
But still, US has very lax stance on official responsibility, and very fundamentally on the idea of whether a failure to perform duty in office or required specific performances pass as an offence for an official.
> Making poor job performance a crime, for someone with no mens rea, is inherently totalitarian and abusive.
Does US has a stance on failure in official duty being mens rea defensible? A number of Western democratic state don't think so. I'm not meaning for something like an ordinary clerk failing to show at work being a case of it, but for government officers with highest levels of responsibility — positions onto which people certainly don't get by simple promotion.
Your citation was not to "title 25," either. This was not a numerical mistake. You cited the regulatory code, rather than the statutory code. They are entirely different bodies of law.
> the point that most of the official offences are not a matter of title 18 (criminal code) stands
Yes. Another point that still stands is that you fundamentally misunderstand how important it is not to over-criminalize behavior of this type.
The surest sign that a regime is corrupt is that it imprisons those it claims are corrupt. See, e.g., https://www.scmp.com/news/china/article/1679489/xi-jinping-v...
Well yes, I will not be a lawyer. After all finally remembered, ch 11 of title 18 (criminal code) is what was buzzing in my head at the time. Somehow "abuse of office" felt like it belonged there.
I concede on that, IANAL defence does not work when you engage in a dispute with a lawyer with encyclopedic knowledge of the code, and you totally embarrass yourself :)
> Yes. Another point that still stands is that you fundamentally misunderstand how important it is not to over-criminalize behavior of this type.
And you cite China as an example, out of all countries...
Lets follow this logic: a single stroke of a pen by a senior government officer of a big country can easily cause enough damage (economic, property, life, moral) for it to be comparable to a war loss. Just let the guy go? Last time I checked, generals loosing wars were usually relieved of heads, not jobs (even in USA, during the revolutionary era.)
The senior-most official positions must be coming with responsibility other than something like "suspension of no more than 14 days," and this is what a lot of nations subscribe to, and not all of them are communist satrapies.
In big part of Western Europe and former UK colonies Misfeasance in public office is at least a matter of an administrative liability with a lot of actionable laws against it.
From the suit[0]:
Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms.
Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3.
I wonder what Exhibit 3 is and if it actually shows Malamud referring to his actions directly as terrorism. I wouldn't know how to look that up. Does anyone?
EDIT: It's from the prologue section here: https://museum.media.org/eti/
It's a joke that the lawyers used this as justification for sneaking the word "terrorism" unqualified in their suit.
0 - https://law.resource.org/pub/us/code/ga/pro_v_georgia/gov.us...
"Misdemeanor Terrorism" was one of the charges I believe.
The lawyer that said that this is 'terrorism' should be disbarred. This is borderline slander.
Agree with you there. Either it’s terrorism or it isn’t.
* https://en.m.wikipedia.org/wiki/2002_Tampa_Cessna_172_crash
* https://en.m.wikipedia.org/wiki/2010_Austin_suicide_attack
Curiously they both seem to have been described as “not” terrorism (though I’m not totally sure that was the final conclusion).
He wasn't. He was 100% entitled to use his library access, and download every file he did download.
https://en.wikipedia.org/wiki/Aaron_Swartz#United_States_v._...
Or are you arguing that he was indeed entitled to distribute them afterwards? If so, can you walk us through the process of arriving at this conclusion?
I say all this, but I want to be clear that the punishment he received was far in excess to the underlying crime.
Still not a breach of copyright, and not even a crime, I believe.
> Certainly, putting them on the internet after the fact isn't legal.
But he didn’t do that. He may very well have planned to do that, but he never did, and this was never a factor in the case against him, IIRC.
What really did him in was that he went out of his way to use an alternative means of access _after_ being kicked off. He knowingly trespassed again after being told that he wasn't welcome, which completely obliterates any defense of "I didn't know what I was doing wasn't allowed".
If you watched the case, even that point was nearing defeat.
The TOS they cited were pulled and inspected. Really, nowhere there the "oblige to not to abuse the system with means of viruses, logical bombs, ..." term was breached, unlike what initial hearing with technically illiterate judge found.
Claiming "terrorism" is a significant detriment to the story.