Supreme Court rules Georgia state law annotations not copyrightable [pdf]
supremecourt.gov
supremecourt.gov
In my opinion, the argument that copyright extension incentivizes authors/creators doesn't hold much water. I generally observe that there are plenty of people willing to create and publish things with absolutely no hope of profit or legal protection, and yet we bend over backwards to extend our protections for the lucky few to the tune of the author's life + 70 years. Even more if for hire. Tell me how that's in the public interest.
If you accept this is a good thing, then the degree problem becomes one of proportionality. I agree that life + 70 years is exorbitant, but that particular formula is relatively easy to change legally. Practically, you have to fight powerful interests (Disney) to change it, but it can (and IMHO should) be done.
One interesting notion is to fully privatize the problem of artificial scarcity. This might look something like leasing a Disney device (for example) to watch Disney content. This seems like something of a nightmare, until you realize that you don't really need to watch movies.
Among other matters:
- Your devices are no longer fully under your control, and don't answer to you.
- Even where DRM isn't itself directly. malware (Sony: https://en.wikipedia.org/wiki/Sony_BMG_copy_protection_rootk...), it inevitably creates backdoors for APTs.
- The legal proscriptions on analysing and assessing ADRM mechanisms create both minefields for researchers and multiply the existing security threat risk.
But most critically, and pretty much fully torpedoing your voluntarism argument, device vendors may be contractually or legally prohibited from producing non-DRM-afflicted devices in their own relationships with DRM gatekeepers, meaning that there are no (or very crippled or expensive) DRM-free alternatives.
Witness ongoing efforts to plug the "anologue hole" (https://www.eff.org/issues/analog-hole) in various devices and software.
FWIW, my complete crap Chrome browser on my complete crap Samsung Android device refuses to allow me to screenshot this HN thread claiming it is a "DRM protected page".
I'd love to replace the device with something vaguely comparable. Between licensing restrictions, monopoly coercion, and market dynamics, there is literally nothing available.
Or more briefly: Your assertion is absolutely unsupported by empirical experience.
Just tested with Firefox on Android (Moto E4 phone). Firefox did not block taking a screenshot of this thread. Perhaps you may wish to test Firefox yourself to see if it better obey's you than Chrome does.
But sadly it does, and while it does the options available are try something else or do without. In this case you can try Firefox for Android on your phone to see if it behaves better than Chrome.
It's to point out the problem that shouldn't exist, its root cause, and only one very minor, mundane, and utterly ridiculous consequence. Of a problem that should not exist.
At all.
For any reason.
But thank you regardless, your heart at least is in the right place.
What is this problem that shouldn’t exist, this root cause? And in which scenario does it go away: with the status quo laws or with their removal? And why would the scenario remove that root cause problem?
In addition to all of the other objections, the biggest failure here is of the technical measures to actually prevent copying. Even when it's prohibited by law and the pirates are a bunch of hobbyists, DRM gets broken time and again. You can imagine what would happen if copyright didn't exist and then breaking the DRM allowed for-profit businesses to legally distribute any of the content they extracted.
Copyright without DRM >>> DRM without copyright.
Though it should definitely be one or the other and not both. If copyright exists then DRM is not only useless, its existence is pure harm because all it adds to copyright is restricting things the copyright doesn't give the copyright holder a right to restrict, like free speech and fair use.
I like your point about DRM vs copyright. I guess I've always seen DRM as the "ounce of prevention" that replaces the "pound of cure" that copyright enforcement entails - although distribution platforms like YouTube increasingly reduce that pound to closer to an ounce (at the cost of more abuse). I think your point would be valid if enforcement of copyright was simpler and cheaper; perhaps you've read stories about photographers whose work has been used by large companies, without compensation, usually because the asset was included in projects done by 3rd party contractors. Its very expensive for an individual to enforce their rights. But yes, if the justice system itself were fixed to be fast, cheap, and fair, then I would agree that copyright alone would be the preferable solution.
Well I assume if we repeal all copyright then the laws against breaking DRM will be repealed too.
Imagine if J.K.Rowling wrote the first 3 Harry Potter books but didn't see a dime because the second they got popular everyone with a printing press started selling them royalty-free. Would she have finished the series? I got to read all 7 books because J.K.Rowling was incentivized to write them by her copyright.
I think most of us agree that copyright has value but its become excessive.
There really isn't any difference in terms of incentive for the author between 30 years and the current life of the author + 70 years (or whatever the current term is).
The copyright on the first Harry Potter book should have expired by now. Copyright expiration should not be merely a distant possibility that we rarely think about, as it is today.
This isn't how copyright was meant to work.
https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act#S...
CGP Grey on copyright: https://www.youtube.com/watch?v=tk862BbjWx4
There's studies of sales of works (books etc) and iirc, at least with books, the vast majority of sales are within the first several years, with income trailing after that. This has come up in discussions of zombie rights to works, where a publisher sits on something out of print without releasing new copies because the return isn't enough. It's like the textbook reason for limits on copyright terms. Last I looked at it, 30 years was more than sufficient to cover the bulk of sales in almost all cases. If you think back 30 years now, that would be works released pre 1980s and earlier. That makes intuitive sense to me.
My thinking is author's life for unpublished works (to protect works-in-progress), 10 years after publication unconditionally, followed by a sequence of renewals that require some level of public availability to be granted.
Obviously, there's a lot of details to be worked out: What constitutes publication? How long is the initial unconditional period? How many renewals are allowed and how long is each? What are the actual requirements to get a renewal?
Edit for examples.
Cyan, creator of Myst and Riven, had two very successful Kickstarter to fund new works. First, they raised $1,321,306 to make Obduction, then $1,433,161 for Firmament.
Elite: Dangerous raised £1,578,316 for a modern remake.
Yes, it works for books, too: https://www.kickstarter.com/discover/advanced?category_id=18...
So once again: you seriously think that J.K. Rowling, a completely unknown author with a manuscript repeatedly rejected by publishing houses, is going to be able to raise sufficient funding on Kickstarter for her first work?
They were only able to make up the rest because they knew copyright meant they'd get paid more when they shipped via sales where as without copyright it would just be copied.
Here's an article on Elite:Dangerous saying the actual budget was 8m
https://www.eurogamer.net/articles/2014-09-11-elite-dangerou...
Yes, but AAA games and e.g. feature films are among the highest-cost works to make. They're very much an exception, not the rule.
(unless the game was being made for free as a hobby and the kickstarted was just for fun and not actually funding).
Both Obduction and Firmament are for sale. They aren't free games.
As to revenue Patrons, Trademark, etc also work. Shakespeare for example had zero copyright protection and still wrote quite a bit.
PS: If anything the massive sums she received from the HP series discouraged her to write more.
But she owned the copyright to it, and could trade that copyright for a contract on the book. That is, she had a viable monetization mechanism if her work was good.
So once again: absent this, provide a plausible way Rowling could have made money on her first book.
The way she made money was extremely implausible.
This is like arguing we need the NBA because it provides a job for LeBron James.
It's sort of like why would anyone pay to attend MIT, when you can watch videos of the lectures for free on youtube? Oddly enough, MIT is doing better than ever.
He created an ebook version of The Martian, freely downloadable at the time. People did give him donations though. He only added it to Kindle for $0.99, because Amazon wouldn't let him distribute it for free. It look off from there.
When people would rather give the author $0.99 to make it easy to access on Kindle, than download it for free, and it becomes a bestseller, then that is a plausible way for an author to make money.
I'm not saying this couldn't work, in theory, but I think in practice that the # of parasites has the potential to make such a model unworkable. But maybe not! I'd be perfectly happy if you're right and it worked.
More generally, non-excludable goods do not work well within a free market system. If you want them produced, you either set up a state mechanism for funding them (which many countries do for e.g. film, by creating national film funds), or you somehow make them excludable (e.g. through copyright). The other options aren't really effective.
There'd be a small first-mover advantage for being the first to print a book and smaller operations not worth copying would still operate but J.K. Rowling wouldn't be a billionaire.
No one's disputing that. But she's also creating a lot more value at the same time. It's a wash.
Yes, that's called democracy. Copyright must be a system that is acceptable to most of us. In fact, copyright itself is more "byzantine" than just having the State issue a stipend to anyone who produces a work of art - yet must we be OK with such a solution?
Similarly, Joseph Galambos considered that people who coined words were due a royalty when they were used. Is is unfair that we decide to use that work for free instead?
Copyright is also the tool of open source code licensing. How exactly would a viral license operate when, lacking copyright, the authors have nothing to license?
This is such an obvious notion and it's not discussed nearly as often as it should.
It's not like my employer will be sending my last paycheck to my children 70 years after my death...
Property rights in general are anti-competitive and support rent-seeking. That's actually very much the point of them; to insulate a particular interest from those who would compete with the person to whom the right is granted and enable the grantee to reliably extract value from the subject of the right, including by monopoly rents.
Two things have messed with that deal - corporations are now treated as people, who live forever, and copyright extension allows corporations to extend copyright past the lifespan of the public they've made that bargain with.
I'd argue that a bargain that you can never collect on is not a valid bargain - the whole basis of copyright has been undermined - now it's just a monopoly.
Some novelists spent years collecting rejection slips (e.g. Stephen King; Larry Niven did it full time with a trust fund), which is probably irrational. But with no pot of gold at the end, only the properly delusional or wealthy could justify that investment.
OTOH copyright enforcement isn't that effective, so publishers meaninglessly vary textbook editions yearly, with expiring access to essential online content.
To rely on people producing things producing things without economic incentive is essentially the argument for anarchosocialism. It might work to some small degree for passion projects, but what the overall volume of creative production would collapse as creatives would have to find other ways to support themselves.
In the 19th century in Germany, Germany had no copyright or patent laws. There was an explosion of creativity and technological progress, and Germany became the European leader economically and technologically.
But the evidence for lack of copyright being useful in that period is very weak: https://www.wired.com/2010/08/copyright-germany-britain/
Most of the great German authors of the period had to hold other jobs to support themselves, which made completing works slow and halting. Goethe supported himself as a courtier/bureaucrat/officer of the Duchy of Saxe-Weimar until his mid-40s, Hegel was a teacher and academic administrator, Kleist barely made a living off of of publishing a magazine and stints in Prussian government service, etc.
But what they have done is leverage the status the books conferred into lucrative careers.
And yet, they were nonetheless able to be great authors. Now, contrast German authors of the 20th century, when copyright law was adopted. There's just no comparison.
There is no doubt that copycats would benefit enormously from an absence of patent protection, but innovators would doubtless invest less capital in innovation if they could protect it.
Germany, U.S., and Chinese copycats were about to free-ride on the license fees paid by English manufacturers to patent holders. If the English never established a patent law, then there would be nothing for them copy and the overall welfare of society would be reduced.
Which could work if we were to implement something like universal basic income, or progress to an agalmic economic society. I'm not optimistic on either of those.
Most of the world does not live in western countries (As a simplification think Europe, Australia, US, Canada etc).
In general, most of the world's valuable intellectual property has originated from Western countries.
What intellectual property law does is provide a monopoly on selling/producing something to a company or individual. The thing that is interesting about intellectual property is that it is not tangible. If someone is assaulted, or their physical car is stolen- the damage is very real and tangible.
However with intellectual property we have a worldwide system where copying intellectual ideas is equated to the same thing as physically stealing.
For example, imagine I setup a factory that outputs clones of the "Land Rover Range Rover" in East Timor. I may be allowed to sell the vehicle domestically, but exports of the vehicle to "advanced economies" will undoubtably blocked due to IP infringement.
This is a highly questionable practice for a few reasons.
1. Worldwide consumers would benefit for lower prices on Range Rovers 2. The production of Range Rovers in my knock off factory does not prohibit Land Rover from producing their vehicles 3. The special interest groups who benefit from the Range Rover monopoly are much wealthier than the rest of the world, and the monopoly only serves to reinforce that.
Intellectual property is fundamentally a way for the wealthy (people who can afford lawyers) to prevent potential competitors from implementing ideas.
There is no monopoly on differentiating mathematical functions, or calculating the current in an electric circuit. Yet somehow there are laws prohibiting copying designs for integrated circuits. It is all nonsense and the only winners are IP holders and lawyers.
World without IP: No Range Rovers.
Your imagined world of cheap range rovers if we suspended IP only works once but destroys all future incentive to create.
Fanfiction runs into legal trouble with copyrights.
The problem is that when it comes to the really sticky, complex issues that affect huge swaths of human rights, it's very possible for justices, in your words, to "rely upon fact and logical argument," but base their end goal/optimization function on either "what did the founders of the country factually and logically intend" or "what do the norms and ideals of modern society suggest would be factually and logically sustainable" without regard to the opposite viewpoint.
A real balance between these viewpoints keeps the pendulum from swinging out of control; it serves as a low-pass filter on the often-wild steering of policy, or the whims of a short-term-focused electorate. But it's equally important that the ultimate power reside long-term with the people. And one very possible outcome is that our justices succumb simultaneously to a pandemic, during an administration that, to be as charitable as possible, does not seem particularly concerned with nuance, system stability, or universal enfranchisement. And it's a lot to ask of a justice to hold both the meta-meta-viewpoint and legal precision in mind, especially as it seems likely that constitutional questions will be in play as November approaches. All we can do is hope they will rise to the occasion.
Anything like that would not be something expected from country's best laywers. A judge given a quarter million USD salary must be the best of the best in performance, and not to deputise his most important duties.
> it's clear that regardless of their backgrounds and circumstances of their appointment, each justice is incredibly intelligent and engaged.
I heard of much less charitable descriptions of the process, with the most frequent being about the well known mental decline of some judges.
> The problem is that when it comes to the really sticky, complex issues that affect huge swaths of human rights, it's very possible for justices, in your words, to "rely upon fact and logical argument," but base their end goal/optimization function on either "what did the founders of the country factually and logically intend" or "what do the norms and ideals of modern society suggest would be factually and logically sustainable" without regard to the opposite viewpoint.
This is one of very many problems. US court system has become too much more than just a legal institute it should be.
The point my law instructor told me was that a judge just a lawyer on the government payroll, and half of them should be sent back to the law school so bad their skill level was. Then, if you can not trust half of them with most basic judicial duties, why should you entrust them with the fate of society, moral guidance, and big matter topics?
Basically, the elites in the West tend to think too many things about lawyers, when they shouldn't.
He was a lawyer by trade, and he was not happy with society putting lawyers in charge of running itself at all.
$250k is what 4th year lawyers at big firms like Cravath make. Partners can make 10x or more, and a lot of the work of partners is done by associates. [0]
If an associate has clerked for a supreme court justice, they can expect bonus of $400k. [1]
I don't know of a justice who has gone back to private practice, but it doesn't take too much to imagine that their salary would be much, much more than a quarter million USD.
[0]: https://abovethelaw.com/2018/06/first-firm-matches-the-new-a... [1]: https://abovethelaw.com/2018/11/400k-is-now-the-official-mar...
If you accept a salary for a job you actually do the job. Period.
The fact is that the world is too complicated to figure out via facts and logical analysis, and that’s why ultimate control of policy rests with elected politicians. We’re seeing this play out at a grand scale right now. In the US, classes are cancelled for the rest of the year. Meanwhile, German students went back to school a week ago. And in Sweden, lower schools were never even shut down in the first place. Logical analysis doesn’t tell you what are the appropriate trade offs between keeping the economy running and keeping people safe. What the purposes of the welfare state should be isn’t a fact waiting to be discovered through empirical methods. These are all political judgments. Even where facts and logical analysis could play a role, it often doesn’t, because experts don’t agree on often very simple facts, or the experts’ answers are too complicated to be actionable.
Fam is doing about as well as one could expect with two working parents and a 4yo stuck in the house.
Hope you and yours are holding up as well.
Where do you fit Italy, Spain, or even Portugal in your logica analysis? Because arguably the US is being hit harder than any of those countries and yet they are respecting their quarantine with notable results.
Meanwhile, neither Germany nor Sweden has suffered as much as neither Spain or Italy.
Sweden has had 2,300 COVID-19 deaths for 10 million people. The USA has 25 times as many deaths, but 32 times the population. Indeed, American cities with similar population and density to Stockholm have far fewer deaths. Washington DC is a little smaller and has similar density, but has had 165 deaths, versus over 1,100 in Stockholm. (Deaths are doubling in both countries every two weeks, so they seem to be at similar points in their overall trajectories.)
Similarly, the death rate in the US outside of NYC is comparable to that of Germany. (NYC has no counterpart in Germany; it’s almost three times as dense as Berlin, and more than twice as tense as Munich.)
But that’s a political decision the Swedes have made, and maybe it will prove to be the right one. It could be that, in the fall, the virus resurges in places where people have been sheltering and have not developed anti-bodies, while Swedes manage to avoid that resurgence because they never shut down. No expert can tell you which way it will be. They can tell you a discrete fact (sheltering in place will save more lives than otherwise), but are in no position to plug that fact into a value framework and reach a decision. But politicians must make a decision one way or the other.
Which for the US remais about 14 days (a marked imprvement over 2.14 when I first started looking at it), it's about 26 days for Italy.
When looking at exponential (or recently exponential) phenomena, rate-of-change matters vastly more than absolute value.
(And I'm not evev factoring in undercounting, testing failures,and other attempts to game the scoreboard here.)
You should check the facts. In the past few weeks New York alone reported more covid infections and deaths than Spain's total from the start of their outbreak, and New York has around 25% the population of Spain.
New York also has between 2 to 3 times the number of active covid cases that Spain has, which indicates the death count will only get far worse than what it already is.
> American cities with similar population and density to Stockholm
You may try to cherry pick anything, but the facts are the facts.
You’re the one who is cherry picking. 97.5% of America doesn’t live in NYC. What’s going on in NYC isn’t a proxy for the USA as a whole. If you want to talk about NYC, we can do that—we could compare to Barcelona or Madrid or something similar. NYC has suffered for some reasons very specific to it. (Due to its role as an international travel hub, it is estimated that up to 100 different people started chains of infection in NYC, versus less than 10 in California). But even including NYC, the USA as a whole hasn’t been as hard hit as Sweden, much less Spain.
And excluding NYC (where, again, 97.5% of Americans live), the USA has been even less hard hit. My state is about the size of Switzerland, and has had half as many deaths.
I enjoy the irony of criticizing someone for cherry-picking, while using NY as a proxy for how the whole of the US is doing.
Perhaps you could've picked the state that is most directly comparable to Spain in population and land size, California: 1/10th as many people dead per million. (But that too would be cherry-picking)
Country, Deaths / 1m pop, Cases / 1m pop
USA 171, 3,045
Spain 503, 4,907
Italy 446, 3,298
Sure if you cherry pick the worst city in the US and compare it to Italy or Spain then yes you can make it look like there are more cases in the US and be technically correct but overall the US is doing better then Italy and Spain.
It's also worth noting that the death curve probably has a 2-3 week lag behind the infection curve. At a 2 week doubling rate, even if you miraculously came out with a vaccine tomorrow and immunized the whole population you would still have yet to experience half of all deaths from the disease.
[0] https://www.nytimes.com/interactive/2020/04/23/upshot/five-w...
There are some disasters, but even then you get beautiful rebuttals (e.g. Kagan's dissent in Rucho v. Common Cause)
A single person churning out brilliant opinions over decades would be more impressive to me.
This ruling split the judges in an uncommon way, which was even more welcome.
But not every case is divided 5–4 along the line of which party nominated the justice. There are a lot of ideological currents that don't fit cleanly into political parties
I saw a counterexample just this morning. An editorial was arguing that the Court's "interference" in the Michigan election threatens democracy, and the only solution is to pack the court.
Second of all, in practice, the influence of money in politics is overstated.
Hillary Clinton outspent[1][2] Donald Trump by 2x in the 2016 election, and still lost. In fact, she had far more corporate backing[3][4] than Donald Trump, and still lost.
In the 2020 Democratic Primaries, Michael Bloomberg spent $1 billion[5] (!!) on his campaign, and won just 9.4% of the popular vote (1.38% of pledged delegates).
Tom Steyer (a no-name billionaire), spent $343 million[6] on his election, and won a humiliating 0.38% of the popular vote (0% of pledged delegates). Interestingly, you would think he would have at least 1/3 of Bloomberg's vote, which suggests that the vast majority of the variance in Bloomberg's vote share can be attributed to his existing name recognition as a famous businessman/politician.
Bernie Sanders spent $195 million[7] on his election, having spent less than Bloomberg + Steyer and while having handily beaten both. Joe Biden spent $105 million[8] on his campaign, less than Bernie, and still beat him by 3 million votes.
Elizabeth Warren spent $121.31 million[9] on her campaign, and also handily beat Bloomberg + Steyer while having spent far less than them, while losing to Biden while having spent more than him.
Those are just the anecdotes (of which there are many more).
Decades of research[10] suggest that money probably isn’t the deciding factor in who wins a general election, and especially not for incumbents. Most of the research in the last century found[11] that spending didn’t affect wins for incumbents and that the impact for challengers was unclear[12]. Even the studies[13] that showed spending having the biggest effect, like one that found a more than 6 percent increase in vote share for incumbents, didn’t demonstrate that money actually causes wins. In fact, those gains from spending likely translate to less of an advantage today, in a time period where voters are more stridently partisan. There are probably fewer and fewer people who are going to change their vote because they liked your ad.
So this argument is dubious both legally as well as prescriptively.
[1] https://www.opensecrets.org/pres16/candidate?id=n00000019
[2] https://www.opensecrets.org/pres16/candidate?id=n00023864
[3] https://www.opensecrets.org/pres16/contributors?id=n00000019
[4] https://www.opensecrets.org/pres16/contributors?id=n00023864
[5] https://www.opensecrets.org/2020-presidential-race/candidate...
[6] https://www.opensecrets.org/2020-presidential-race/candidate...
[7] https://www.opensecrets.org/2020-presidential-race/candidate...
[8] https://www.opensecrets.org/2020-presidential-race/candidate...
[9] https://www.opensecrets.org/2020-presidential-race/candidate...
[10] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2605401
[11] http://journals.sagepub.com/doi/10.1177/0002764203260415
[12] https://www.jstor.org/stable/2138764?seq=1#metadata_info_tab...
[13] http://www.sas.rochester.edu/psc/clarke/214/Gerber98.pdf
https://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_...
Citizens United was an instance of the government sliding down a slippery slope of precedent, which forced that precedent to be re-evaluated. The facts (the government attempting to punish someone for distributing a political movie about a political candidate) were so stark, they revealed the defects in the precedent that may have been obscured previously. Moreover, the government made clear at oral argument that there was no limiting principle to its position—it acknowledged that, had the Court ruled the other way, nothing stopped the government from book banning and other core free speech violations.
The the normal way this is maintained is to have narrow opinions on the specific issue at hand. As such I can agree politically and still say the ruling was unequivocally incorrect.
and just because precedent is overturned doesn't mean it is wrong. I don't like Citizens United as much as the next person, but I think this requires a constitution change.
It’s 2020 and we still don’t have a gender equality amendment even though the majority of states want one.
...let alone amendments for healthcare as a right, abortion rights, and proportional representation.
In my experience with the US Federal Gov't (through my wife and family) applying the boring law is the norm, and what's not normal is when political actors inject themselves or create a narrative about an issue to suit their purpose. US Federal Employees are deeply apolitical as a workplace culture.
We see a lot of the latter, but there's only so much bandwidth for it. Most work is boring and getting done in a professional manner
Your optimism is refreshing, but this is not how law works.
Judges and lawyers start from a conclusion, and then find case law to back up their conclusion.
Now, to be fair, most judges and lawyers who are competent tend not to go far off the established precedents. This is especially true at lower levels where higher judges are going to review your case--nobody wants to be the judge who gets overturned all the time.
Judges are not engineers. The law regards "truth" as subject to negotiation without objective boundaries. An engineer regards "truth" as "the thing that kicks your ass when you contradict it".
What they decided way back then was that opinions of state court judges, like opinions of Federal court judges, were not copyrightable. They also decided a little later that annotations written by a state-employed annotator where the state did not claim copyright on the annotator's work could be copyrighted by the annotator.
What's new in this case compared to those cases that originally established the government edicts doctrine is that it was a state that was trying to assert copyright ownership of the annotations.
The EFF has some coverage on the issue [0][1].
[0] https://www.eff.org/deeplinks/2019/11/eff-court-dont-let-pri...
[1] https://www.eff.org/press/releases/publicresourceorg-prevail...
Public.Resource.Org photocopied and distributed the complete standards, cover to cover, including ASTM's illustrations, logos, etc. But what aspect of the manuals are the actual law? The technical measurements? From what I understand, the Georgia annotations became law by reference in their entirety. I don't think it's obvious here and I worry the court will rule against them :/
Regardless, I love Public.Resource.Org's work and wish them the best.
Yes, ultimately, the issue of technical standard is still untested in court and remains a problem, it will take a prominent lawsuit before it's resolved.
> But what aspect of the manuals are the actual law? The technical measurements?
What Public.Resource.Org is doing is still a gray area, as you said. But I guess it will not be a total loss - if there are legal challenges in the future, they can publish a "censored" version of technical standard and defend that.
There is obviously a market for annotations, what stopped LexisNexis from just doing the annotations on it's own initiative and selling the result itself?
What doomed their copyright is that they took state money to do it. Is it just corruption and they figured they can charge both sides?
Because the annotations angle is a red herring? In the Oyez transcript of oral argument[1], Citron (for the respondent) made what I believe to be a relevant remark disputing the petitioners' assertion that legal annotations would be more expensive:
> One is the actual useful versions of these codes are already plenty expensive. There's a lot of discussion of the cost for a printed volume, but online access, which is what really most practitioners need to use, most people want to use, it's much more expensive than the $400. But, even accepting that the price is lower, I think that favors us, because what's going on there is an exchange of -- you're going to accept a price cap in exchange for the right to publish this officially, not for publishing the annotations, because Westlaw makes the annotations and is allowed to charge six times as much. Lexis isn't going to agree to do the annotation work in exchange for a price cap. What it wants for the price cap is the right to publish it officially.
As I understand the game being played prior to this decision (to be sure, IANAL): although annotations undoubtedly have market value, the market (for liability and other reasons) will nevertheless tend towards official sources, and if you're the official publisher granted monopoly, who cares if the thing being sold has a price cap ($?) when the subscription to the service that provides access to said official thing won't ($$!)...and even if said subscription cost was pragmatically constrained by market forces, the dragnet scales from typical legal/government/academic players in the arena to capturing a proverbial crap ton of otherwise unmarketable endusers on the receiving end of the law ($$$!) while taking share away from direct competitors ($$$$!!). Then make a free, unofficial version available in an attempt to pacify public dissent, but seed a mandatory disclaimer that it may contain errors, so anyone with skin in the game who can pony up will be compelled to do so.
The principle is obvious, and so while I can understand the dissenters' line of reasoning somewhat, it's absolutely flabbergasting to read some of their bullshit. Here's Thomas:
> Lastly, the annotations do not impede fair notice of the laws. As just stated, the annotations do not carry the binding force of of law. They simply summarize independent sources of legal information and consolidate them in one place. ... The majority resists this conclusion, suggesting that without access to the annotations, readers of Georgia law will be unable to fully understand the true meaning of Georgia's statutory provisions, such as provisions that have been undermined or nullified by court decisions. That is simply incorrect. As the majority tacitly concedes, a person seeking information about changes in Georgia statutory law can find that information by consulting the original source for the change in the law's status -- the court decisions themselves.
How magnanimous! It's appalling that this is the opinion of one of our top jurists: Want to practice law in Georgia? Better go find it, and hope you find all of it. But wait, there's more!
> The majority's rule will leave in the lurch the many researchers who relied on the previously bright-line rule. Perhaps, to the detriment of all, many States will stop producing annotated codes altogether. Were that to occur, the majority's fear of an "economy-class" version of the law will truly become a reality. ... For example, Georgia asserts that Lexis sold the OCGA for $404 in 2016, while West Publishing's competing annotated code sold for $2,570. Should state annotated codes disappear, those without the means to pay the competitor's significantly higher price tag will have a valuable research tool taken away from them.
Cry me a river! Listen to this shit: He thinks that the law will get more expensive if we don't let Lexis keep taking a cut. No, the law ought to be free, and the state ought to bend over backwards (or forwards) to ensure that the law is published so widely and legibly that there truly is no excuse for not being able to access it. The twenty-five states across the USA that currently publish annotated codes are in for a bit of a rude awakening, as they will be asked to stop dicking their citizens.
[0] https://en.wikipedia.org/wiki/Copyright_status_of_works_by_t...
What this case is about was some kind of annotated version of the statutes that included case notes and precedents and such. Georgia tried to claim that was subject to copyright. The Justices disagreed, claiming that the annotations were primarily created by legislators in the course of doing legislative work, and thus also could not be copyrighted.
https://www.supremecourt.gov/DocketPDF/18/18-1150/114285/201...
> First, the author of the annotations qualifies as a legislator.
Whoa! There is a massive amount of such code, and the folks writing it are usually thought of as private lawyers, rather than public legislators. That's a big deal, since the legislative process cannot be unconditionally private, but has to be balanced to keep the public informed.
We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade (or some other more established opinion that you like, depending on your political leanings)? I can't tell how serious this is, but it sounds like another attempt to weaken stare decisis to me (again, with the disclaimer that I am not a lawyer or legal expert of any kind and maybe it's not nearly as bad as it sounds to me?)
Those in the majority instead say “If judges, acting as judges, cannot be ’authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” They say this extends to the annotations as “That of course includes final legislation, but it also includes explanatory and proce- dural materials legislators create in the discharge of their legislative duties.”
Whether the majority is correct in their decision or not, I think this is definitely a reasonable clarification of past precedent. I think Justice Thomas’s dissent is accurate when it says that this was not as clear cut a confirmation as the Majority opinion’s writing makes it out to be, but I think saying the decision is incongruous with previous precedent is also incorrect.
> We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade
That's... pretty much exactly what they did for Roe v. Wade.
I still see the case as being about the legislature creating law but then assigning the copyright to that law to someone else. That was decided long ago in the government edicts precedents. Without this overturned decision, this leaves you in the position that you cannot access the Official Laws without being forced to go to the owner of the copyright for access.
I personally don't think this is a coincidence. I would guess that Ginsburg's thinking is heavily influenced by conversations with her daughter. Or perhaps Ginsburg's strongly held opinions on copyright influenced her daughter's career.
> Beyond doubt, state laws are not copyrightable. Nor are other materials created by state legislators in the course of performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. (Ante, at 8–9). Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (Ante, at 9) (emphasis added). The core question this case presents, as I see it: Are the annotations in the Official Code of Georgia Annotated (OCGA) done in a legislative capacity? The answer, I am persuaded, should be no.
Also, IANAL, but my understanding is the annotations are de facto required reading for practitioners of law. They give all the background and history of the law, without which, you would be at a severe disadvantage in the courtroom.
1. In a state like LA, where annotations aren't included, would a lawyer purchase an annotated version from a 3rd party? I assume the information contained in the annotations is expected to be known, regardless of how it is obtained.
2. If a state elects to publish annotations as part of the only published code, does that lend any extra weight to the annotations (effectively, by putting them in the same book, and making that book the only copy of the state code, the state has signaled "these notes are the way we intend you to read/interpret/practice the law").
As to 2, I think the primary evidence for extra weight would be the number of citations to the ‘official’ annotations in rendered opinions, but that it would not be an official jurisprudential rule.
The majority opinion is that the key point is authorship. Officials whose work has the force of law (aka judges and legislators) cannot be authors for purposes of copyright of any work produced in their official capacity as a lawmaker. Their argument is that the annotations are published by the legislative body of Georgia in an official capacity, and therefore are not subject to copyright.
The first dissent disagrees with the majority's interpretation of the government edicts doctrine (lawmakers cannot be authors of, and therefore cannot hold copyright on, works produced in the discharge of their lawmaking duties), finding it too broad and not obvious. The core point is that the type of work matters, and that in this case the type of work is not legislative.
The second dissent argues also that the type of work matters, and that annotations such as those under consideration do not created in a legislative capacity. This agrees with the majority argument about the government edicts doctrine, but disagrees about whether this work constitutes a government edict.
[0] This is mentioned spanning the bottom of page three and the top of page four of the majority opinion (pages six and seven of the PDF):
> In exchange, Lexis has agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free.
It is a precedent-based doctrine that says official works of officials whose work carries the weight of law cannot be copyrighted. This is because the law belongs to the people, from whom its authority derives. Thus, a lawmaker (legislator or judge engaging in lawmaking duties - official works) cannot be the author of their work, because their work (the law) belongs to the people. Copyright protections are granted to authors.
This was precedent established in the 1800s, and has now been upheld in this decision. It seems a quite significant decision in this area.
EDIT: I now realize that George effectively only published an annotated version of its laws, which can only be purchased (it seems) from LexisNexis. While a free version is available, this version appears to be prepared by LexisNexis (all of this is my understanding from ref 1)
1. https://arstechnica.com/tech-policy/2019/12/justices-debate-...
It is difficult to make an argument from a negative, but it is interesting to note that no one seems to care that Lexis distributes the text.
Also, if you go to Georgia's legislative web site and click on the link for "Georgia Code"[0], this takes you directly to Lexis Nexis. This seems as official as anything you'll find. The fact that a government contracts a third party to provide a service does not imply that that government is failing to provide said service.
As an analog, if I am a landlord, I am required to maintain any premises I let in a state that is fit for humans to live in. Whether I hire third party contractors to do the work to maintain these conditions or do the work myself, I am discharging my duties as landlord. No one would ever complain that I hired a plumber rather than fixed a toilet myself (assuming that the work is of the same quality).
[0] left-side nav bar, under "Legislation" heading, second from the bottom of its section.
Edit: I'll note that the arrangement as laid out in the syllabus of the Supreme Court decision reads differently than that in the Ars article. The syllabus clearly states that the annotations are produced as a work for hire by a division of Lexis for the Georgia Assembly in a contract managed through the Code Revision Commission (a committee of the Georgia legislature). The copyright vests in the state of Georgia. The Ars article implies (based on my reading) that the copyright belongs to Lexis. These two readings provide very different starting points.
Separately, the Ars article raises FUD about the copy of the statutes hosted on the Lexis website, but the state of Georgia clearly links to this as the code. Lexis, as a third party without the ability to make law (and as an organization of lawyers) has some hedges it probably has to make when posting legal documents. Georgia claims this is the official text of the statutes. I'll defer to Georgia on this matter and accept the Lexis text as canonical.
And if so, what is the larger significance?