Tag Archives: copyright

Colorado Revised Statutes Now Open and Notorious

The Colorado Revised Statutes are now openly available right here.  To find them, just look at the horizontal menu at the top of the top of the screen, and the click on ‘Colorado Revised Statutes.’

Colorado Common Law received a written copyright waiver, which allows this website to republish the state statutes in its entirety (see screenshot below).  This is a great first step toward removing the barriers of citizens being able to read and access the law online.  Before there were two impediments to anyone (not just citizens of Colorado) who wanted to read the Colorado Revised Statutes online.

Open Record request under CORA which was granted giving Colorado Common Law the right to publish Colorado state law.
Colorado Common Law’s copyright waiver and the right to publish Colorado Revised Statutes.

In this blog post, I will talk about what the state is of the impediments to reading the Colorado Revised Statutes and what else can be done to increase the accessibility.

Continue reading Colorado Revised Statutes Now Open and Notorious

Colorado’s Mixed Constitutional Messages

Dear Colorado,

You are my true love, but I can’t stand your mixed constitutional messages anymore.  Instead of me having to try to decipher what you mean would you please clarify your intent?

Your’s truly,

Joe

Free speech and copyrights are both protected constitutional interests.  Usually those interests act in harmony, but there are times when they conflict.

A copyright grants its holder the power to stop other people – noncopyright holders – from saying certain things or distributing certain messages.  A legislative grant of this private power to stop speech on the basis of its content is in overt tension with the constitutional guarantees of speech and press freedom.

— C. Edwin Baker, First Amendment Limits on Copyright, 55. Vand. L. Rev. 891, 892 (2002).

Continue reading Colorado’s Mixed Constitutional Messages

Colorado’s Secret Separate Set of State Laws

I bet you did not know it, but there are two different sets of Colorado state statutes on the internet.  Yep, two completely different sets of state law.  One set for the elite, and the other set for, well, everyone else.

Here is a little background.  I tried checking Colorado state law for a research project I was working on.  Every website I could find linked to the Colorado Revised Statutes on a private third-party website, LexisNexis.  In fact, LexisNexis forces you to sign a legally binding contract before you can even view the statutes.   I called up the Colorado Office of Legislative Legal Services, a department of the Colorado General Assembly, and asked if I could purchase a digital copy of the Colorado Revised Statutes for a reasonable price.  They responded that only the publisher LexisNexis distributes the Colorado Revised Statutes, so I would have to call them.  On a side note, LexisNexis charges $298 dollars for the Ebook version of the Colorado Revised Statutes.  I was willing to pay a fair price, which I thought would be about $25 dollars, not nearly $300.  So I then filed an Open Records Request for the Colorado Revised Statutes.  My idea was to get my own digital copy and put them up on this website as an alternative to LexisNexis.

I dealt with Colorado Office of Legislative Legal Services Director Dan Cartin and Revisor Jennifer Gilroy.  Only after my second formal Open Records request did Director Cartin tell me their little secret: there is an alternative to the LexisNexis version of the Colorado Revised Statutes.  It is right up on the Colorado Office of Legislative Legal Services website — except, for a reason I still don’t know, the apparent official policy is only to mention the LexisNexis version.  The page is semi-private and not linked to from anywhere that I can tell.  I guess it is on a need-to-know basis.  And the general public of Colorado just does not need to know, at least according to the Colorado Office of Legislative Legal Services.

Director Cartin should read Brown v. Bd. of Educ., 347 U.S. 483 (1954) because he is creating his own “separate but equal” with his policies of who may access what version of the Colorado Revised Statutes on the internet.  See my discussion of a potential due process violation below on why the LexisNexis version as the only publicized source of the state statutes is legally inadequate.  

Access for Everyone Else: Colorado Revised Statutes Accessed through LexisNexis

The public set of state statutes meant for general consumption is hosted by LexisNexis.  There is the set of state laws for general consumption.  It appears on the main page of state government websites. It is a policy to link to the LexisNexis version.  The state government websites that link directly to LexisNexis are, but not limited to: Colorado General Assembly (on the right click on “U.S. and Colorado Constitutions” then click on the sublink “U.S. and Colorado Constitutions, Colorado Revised Statutes); Colorado Secretary of State; Colorado Attorney General (scroll down and click on an individual statute); Colorado Courts governmental website (under the heading additional resources part way down the page, click on “search rules and statutes”); Colorado.gov; and even on the Colorado Office of Legislative Legal Services.  I do not know of every state government website available, nor have I checked every state government website available.   However, I have not found a single state government website that did not link to the LexisNexis version of the Colorado Revised Statutes.

Even non-state governmental websites link to the LexisNexis website: the Colorado Bar Association; University of Denver School of Law; University of Colorado School of Law (click on the drop down “what are you looking for,” then click on “state statutes”); and even the City of Longmont.

Colorado Government Links to LexisNexis for official state statute publication.
Colorado Government Links to LexisNexis for official state statute publication.

I think it is fair to say there is some sort of state level policy to link to the LexisNexis version of the state statutes.

Access for the Elite: A Semi-Private Digital Version on the Colorado Office of Legislative Legal Services Website

I know I told you earlier the Colorado Office of Legislative Legal Services links to the LexisNexis version.  It does.  Go ahead and try it.  I’ll wait.

What I had to find out through two different Open Records requests filed with the office of Legal Services is there is a semi-private version on the Colorado Office of Legislative Legal Affairs Website.  The webpage is not linked to by the main site (there may be internal links that I do not know about).

It offers a fully up-to-date official version of the Colorado Revised Statutes. Here is the link to access the official version of the law.  http://tornado.state.co.us/gov_dir/leg_dir/olls/2013titles.htm.

The official version of the Colorado Revised Statutes.
The official version of the Colorado Revised Statutes.

I know what you’re thinking.  Yeah right, this isn’t private.  Look, on the right hand side there is a link to the Colorado Revised Statutes.  This whole thing is on the up and up.  Every other state agency in Colorado is misinformed about where to find the official Colorado Revised Statutes.  The link to the Colorado Revised Statutes (highlighted in red) on the Office of Legislative Legal Services website (as indicated on my screen shot) takes you to the LexisNexis version of the statutes!  The official “2013 C.R.S. Titles for Download” are not linked to anywhere that I could find.  Furthermore, I found it peculiar the title on the website was 2013 C.R.S., instead of the more formal 2013 Colorado Revised Statutes.  Why did the Colorado Office for Legislative Legal Services not formal title?  My guess is conceal the true nature of the website from search engines, and thus their users.

When I searched Google for the 2013 Colorado Revised Statutes, the official semi private website, did not show up on the first four pages or so (then I gave up and stopped looking).  Even though Google did not show a link to the official website, it was peppered with websites that link to the LexisNexis version, including official Colorado government websites.

Search results in Google for 2013 Colorado Revised Statutes
Search results in Google for 2013 Colorado Revised Statutes

What really interested me was when I searched Google again, and searched for the title of the semi-private webpage “2013 C.R.S. Titles for Download” the first link to show up was the official semi-private website.

This text of the Colorado Revised Statutes is not linked to on state government websites
Search Results in Google for 2013 CRS Titles to Download

The official version of the Colorado Revised Statutes is not password protected.  Anyone can use the link above to access them.  Furthermore, whether intentionally or unintentionally, the Colorado Office of Legislative Legal Services put the website in the public domain by allowing Google to index it.  As you can tell from the screen shots, or if you try it yourself, Google’s algorithm performs very well when I request the Colorado Revised Statutes — the Colorado General Assembly’s website shows up as the first link.  Alternatively, when I search for the title of official statutes “2013 C.R.S. Titles for Download” the first link is to the official semi-private statutes.

Google has this search thing down.

Only the Colorado Office of Legislative Legal Services knows why: 1. they do not link to the official version on their own website; and 2. why they did use any descriptive terminology for Google or its users to be able to search effective for the semi-private version.

A Potential Due Process Violation

In one of my first posts on this website, I went into a discussion that since Colorado allows the only available copy of the Colorado Revised Statutes to be published on LexisNexis a potential due process violation.   I am not going to re-post the entire due process discussion here.  Visit the post, “A Case for Ignorance of Colorado Law – Revisited,” to read a more in-depth analysis.

My basic argument was the publication of Colorado Revised Statutes on the internet only through LexisNexis violated procedural due process.

Due process is the idea of fundamental fairness in our justice system. “No person shall be deprived of life, liberty or property, without due process of law.” U.S. Const. amend V; Colo. Const. art. II, § 25.  Included in the notion of fairness is notice. Lambert v. California, 335 U.S. 225, 228 (1957).  The public needs to have notice of the laws, so they can understand and follow them.  Before the internet, Colorado provided the state statutes to public libraries, and courts.  This allowed anyone who wanted to the ability to be able to read and know the law without restrictions.  Everyone has access to a library and court.  Along came the internet.  While Colorado still provides complimentary copies of state statutes to libraries and courts, they did not provide one on the Internet.  LexisNexis does not count as a “complimentary” or “free” copy because you have to give up legal rights and enter a binding contract to read the state statutes.  Never before in the history of the United States was it required to sign a contract to read state law.  The mere idea of it is repugnant to public policy.  We want people to know and obey the law.  Ignorance is no excuse of the law!  

Therefore, when the state of Colorado implies to the public that there is only one source for the Colorado Revised Statutes on the internet, LexisNexis, that disagrees with out idea of fundamental fairness.  Those who can afford the $298 digital version can purchase it (still with limitations, LexisNexis uses DRM on its Ebooks).  However, those who cannot afford to purchase it and do not have the means to get to the local library or courthouse have to give away legal rights to read the law.  This sure seems procedurally unfair to me.  Today, society relies on the internet.  Our computers, smartphones and tablets are used ubiquitously in education, business and our personal lives.  The Colorado Government provides car registration and driver’s license updates through it’s websites, but not the state law.  It would seem like the state law would be the most important thing to place on a state government website.  The Secretary of State makes available all of the state Codes and Regulations on its website.  However, the General Assembly prefers for us to contract away our legal rights to view state law.

I wanted to change this, so I asked for a copy of the Colorado Revised Statutes through an Open Records request.  The response to the first request by Director of the Colorado Office of Legislative Legal Services, Dan Cartin,  indicated that he did not think there was anything wrong with the LexisNexis version.  He responded to my request by directing me to the “free” LexisNexis website.  LexisNexis in their “Terms of Agreements”  places restrictions, including copying anything from their website.

I wrote back and told Director Cartin that I did not find his response sufficient.

1. The LexisNexis website is not free.  I have to agree to LexisNexis’ Terms and Conditions before I am allowed to enter the website (see the screen shot of the agreement in the “Access for Everyone Else” section above).  This is a legally binding contract.  I have to agree not to sue LexisNexis for any reason.  All the statutes on LexisNexis’ “free” site are provided as is, and the implied warranty of merchantability is expressly waived.  What this means is if there is anything wrong with the statutes, and you relied on LexisNexis to provide you accurate information because it is the only source on the internet, then tough luck.  If for some reason there is grounds for a lawsuit that is not covered by their disclaimer or limitation of liability, then you agree to sue in New York.  Yep.  If you are a Colorado citizen, looking up Colorado law, and there is a problem with the law you relied upon, you have to go to New York to try to sue LexisNexis.  All of these things you have to give up in order to enter LexisNexis’ website is called legal detriment.  Legal detriment is a term of art that basically means giving up legal rights.  To make a binding contract you need three things: an offer, acceptance, and consideration.   The offer LexisNexis makes is that little box appearing on your screen asking you to agree.  If you click agree you have made an agreement and are 2/3rds of the way to a contract.  The last part is consideration.  Consideration can be thought of a bargained for exchange where you each get something.  You get view the laws of the state, while LexisNexis gets you to promise not to sue, if you do sue, you sue in New York, etc.  The Colorado Supreme Court found this to be a valid basis of consideration to make a legally binding contract.  See Troutman v. Webster, 257 P. 262, 263-64 (Colo. 1927) (noting “it is a consideration if the promisee, in return for a promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, even though there is no actual loss or detriment to him or actual benefit to the promisor”).

So you have to make a legally binding contract to even enter LexisNexis’ site.

2. LexisNexis’ “free” site is not the same as getting the statutes from the Colorado General Assembly, either.  In their Terms of Service, LexisNexis provides a disclaimer noting that the content is provided “as is,” furthermore it disclaims basic implied contractual warranties, such as the implied warranty of merchantability.  See Terms of Service section 16.

I have no way of knowing if the content (the state laws) LexisNexis provides on their “free” site are accurate or not. This “as is” clause and since there is no guarantee of accuracy on LexisNexis’ part potentially violates Colo. Rev. Stat. § 2-5-118 (4) (stating “copies of the Colorado Revised Statutes, when published, reprinted, or distributed to interested citizens, accurately state the law in effect when those copies are prepared”). By holding out the LexisNexis site to be the official “free” version of the Colorado Revised Statutes the Colorado Legislature may very well be breaking their own law, since LexisNexis expressly disclaims any claim to accuracy with their “as is” clause.
Why does the Colorado General Assembly’s Office of Legislative Legal Services force Coloradans to give up legal rights, in a binding contract, to view the Colorado Revised Statutes on the internet, while they have a separate copy free of the legal hoops?   I don’t know.  Either way, since there is a functioning website on Colorado government owned websites that have the Colorado Revised Statutes already on them, it appears Office of Legislative Legal Services and the state of Colorado may be violating constitutionally protected due process rights by holding out that LexisNexis has the only copy on the entire internet.

States Who Assert a Copyright in State Statutes

The Colorado Office of Legislative Legal Services refused to waive a copyright claim against me, so I could publish the state statutes on this website.  Colorado does not electronically publish the statutes for the general public’s consumption.  The state government’s websites consistently link to LexisNexis where users have to give up legal rights and agree to a contract to view state laws (see picture below).  While researching the Colorado General Assembly’s claim to copyright state statutes, I thought about if other states have legislation copyrighting state legislature’s work.    What is the pattern and practice of other states?  Well it depends…

Let me start off by clarifying that this is a narrow search.  I only looked for state legislatures who expressly asserted or waived a copyright over their own laws.  Some states try to claim a copyright over state seals, while others try claim a copyright over administrative codes.  That is not the focus of this inquiry.

  • Eleven states affirmatively assert a copyright over their state statutes in the statutory text: Alabama, Colorado, Georgia, Idaho, Kentucky,Minnesota, Mississippi, Nebraska, New York, South Dakota, Vermont.
  • Oregon is the only state legislature which enjoys the periodic discretion to copyright its state statutes (Oregon may copyright its statutes).  Oregon got into some hot water back in 2008 when it sent cease and desist letters to online legal clearinghouses who republished the Oregon Revised Statutes on their websites.  The claim was ultimately settled out of court after some public blow-back.
  • Two states, Montana and Illinois, on the other hand, expressly state that copyright law does not apply to their state statutes.  Montana claims the statutes are property held by the state of Montana.  Illinois on the other hand says the statutes are completely in the public domain (no one owns them).
  • Two states have enacted their own punishments for a state statute copyright violation.  The state of Mississippi will pursue a civil violation for no less than $1,000 dollars.  South Dakota makes it a criminal violation, a class 2 misdemeanor.  These states take their laws seriously!

But why would a state want to copyright the laws anyway?  I think a state would argue that it’s laws are so import and fundamental to the operation and nature to the state that it has an important interest in the accuracy and the legitimacy of the statutes.  In other words, the state is trying to protect against misinformation.  I get it.  It is important that individuals correctly informed about the law, so ignorance is no longer an excuse.  One way that states accomplish this is by posting the statutes right on official state government websites, often times the state legislatures website.

  • Eleven of the states did publish their state laws on official state government websites: AlabamaIdahoIllinoisKentuckyMinnesotaMontanaNebraskaNew YorkOregonSouth DakotaVermont.
  •  Three of the states did not link state government websites at all: Colorado, Georgia, Mississippi.
    • Curiously, all three states’ governments official websites linked to LexisNexis as the official internet source for the state statutes.  At least Colorado will not give a reason why they do not publish the statutes themselves.

      Colorado Government Links to LexisNexis for official state statute publication.
      Colorado Government links to LexisNexis for official state statute publication.

Many of the states appear to have benign interests with the copyrights, only asserting a copyright for the benefit of the people/state.  This makes sense to use the copyright almost as a moral property interest in the laws of the state.   It becomes then a defensive tool to ward off reckless or malicious use of the statutes.

Taking all of that information into consideration, it is difficult to discern a pattern or practice.  Perhaps one conclusion that could be drawn is only a minority of states enact legislation either asserting or waiving a copyright interest over state statutes.  Other than that, the interests are so varied it is difficult to draw too many conclusions.  The statutes are below.

*** A few states do not appear to have legislation which expresses a formal legislative direction to periodically file for copyrights on state law.  These states include, but are not limited to Maryland and Michigan.

 

Alabama

The Code Commissioner shall have each volume of the pamphlet acts of the legislature at each session thereof and each volume of the code copyrighted for the use and benefit of the state.

— Ala. Code § 36-13-5.

Colorado

Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole property of the state of Colorado as owner and publisher thereof. The committee, or its designee, may register a copyright for and in behalf of the state of Colorado in any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff. The committee shall use its best efforts to ensure that any federal copyright registered pursuant to this section is appropriately maintained. Any prior actions of the committee and the revisor in securing such federal copyright are hereby validated.

— Colo. Rev. Stat. § 2-5-115.

Georgia

To register the copyright claim in all materials in the Code and any supplements thereto, to protect, enforce, and preserve all claims in such materials, to bring and defend actions in any court in connection therewith, and to negotiate and grant licenses or rights, on behalf of the state, to use such material upon such terms and conditions as the commission shall determine to be in the best interest of the state.

— GA Code Ann. § 28-9-3 (15).

Idaho

Copyright of all compilations shall be taken by and in the name of the publishing company which shall thereupon assign the same to the state of Idaho, and thereafter the same shall be owned by the state of Idaho. The commission is authorized and empowered to grant the use of the copyrights of the Idaho Code published pursuant to Session Laws of 1947, Chapter 224, and of all compilations authorized by this act, in connection with the performance of its said duties and obligations.

— Idaho Code Ann. § 73-210.

Illinois

The Illinois Compiled Statutes, including the statutes themselves and the organizational and numbering scheme, shall be an official compilation of the general Acts of Illinois and shall be entirely in the public domain for purposes of federal copyright law.

— 25 Ill. Comp. Stat. 135/5.04.

Kentucky

The information identified in subsection (1) of this section shall be made available to the public by means of access by way of the largest nonproprietary, nonprofit cooperative public computer network. The information shall be made available in one (1) or more formats and by one (1) or more means in order to provide the greatest feasible access to the general public in this Commonwealth. Any person who accesses the information may access all or any part of the information. The information shall be made available in the shortest feasible time after the information is available to the Legislative Research Commission.

— Ken. Rev. Stat. § 7.500 (2)

No action taken pursuant to this section shall be deemed to alter or relinquish any copyright or other proprietary interest or entitlement of the Commonwealth of Kentucky relating to any of the information made available under this section.

— Ken. Rev. Stat. § 7.500 (7).

Minnesota

  [T]he revisor shall send the appropriate number to the Library of Congress for copyright and depository purposes.

— Minn. Laws § 3c.12 (m).

Mississippi

(1) Copyrights of the Mississippi Code of 1972 and the notes, annotations, and indexes thereof, shall be taken by and in the name of the publishers of the compilation who shall thereafter promptly assign the same to the State of Mississippi and be owned by it. (2) All parts of any act passed by the Mississippi Legislature, or of any code published or authorized to be published by the Joint Committee on Compilation, Revision and Publication of Legislation, including, without limitation, catchlines or frontal analyses; numbers assigned to sections, articles, chapters and titles; historical citations or source lines; editor’s notes; amendment notes; cross references; annotations; and summaries of judicial decisions and Attorney General’s opinions, shall become and remain the exclusive property of the State of Mississippi, to be used only as the joint committee may direct. (3)  (a) If any person or entity uses any part of any act passed by the Mississippi Legislature, or any part of any code published or authorized to be published by the joint committee, in any manner other than as authorized by the committee, the person or entity shall be subject to a civil penalty of not less than One Thousand Dollars ($ 1,000.00) for each violation, and each day upon which a violation occurs shall be deemed a separate and additional violation. (b) If the joint committee suspects that any person or entity is violating or has violated this section, the Attorney General shall investigate the matter upon the request of the joint committee. If the Attorney General determines, after investigation, that the person or entity is violating or has violated this section, the Attorney General shall institute an action to impose a civil penalty against the person or entity, or seek injunctive relief against the person or entity to prevent further violations of this section, or both, as requested by the joint committee.

— Miss. Code Ann. § 1-1-9.

Montana

The Montana Code Annotated, supplements, or other publications ancillary thereto, as published, are the sole property of the state of Montana and may not be copyrighted.

— Mont. Code Ann. § 1-11-304

Nebraska

The Revisor of Statutes shall cause the supplements and reissued volumes to be copyrighted under the copyright laws of the United States for the benefit of the people of Nebraska. The supplements and reissued or replacement volumes shall be sold and distributed by the Supreme Court at such price as shall be prescribed by the Executive Board of the Legislative Council, which price shall be sufficient to recover all costs of publication. The Supreme Court may sell for one dollar per volume any compilation or revision of the statutes of Nebraska that has been superseded by a later official revision, compilation, or replacement volume. The Supreme Court may dispose of any unsold superseded volumes in any manner it deems proper. All money received by the Supreme Court shall be paid into the state treasury to the credit of the General Fund. The court shall take receipts for all such money paid into the state treasury.

— Neb. Rev. Stat. § 49-707.

New York

The copyright of the statement of facts, of the head notes and of all other notes or references prepared by the law reporting bureau must be taken by and shall be vested in the secretary of state for the benefit of the people of the state. The secretary of state is authorized by a writing filed in his office to grant to any person, firm or corporation, under such terms and conditions as he and the chief judge of the state of New York may determine to be for the best interests of the state, the right to publish the above mentioned copyrighted matter.

— N.Y. Jud. Law § 438.

Oregon

 The Legislative Administration Committee may adopt rules to carry out its duties under statute or legislative rules or directives, including setting and collecting fees for facilities and services and obtaining copyrights and patents on copyrightable or patentable materials developed, published or produced by committee staff.

— Ore. Rev. Stat. § 173.770 (1).

South Dakota

The South Dakota code commission shall provide the material authorized for publication by § 2-16-6 will be copyrighted by the state of South Dakota, in the name of the state of South Dakota. The commission may contract with printers, publishers and computer retrieval companies for use of the state’s copyright.

— S.D. Codified Laws § 2-16-8

Except as authorized by federal copyright law, no person may print or distribute copyrighted material from the South Dakota Codified Laws without the express authorization of the Code Commission. A violation of this section is a Class 2 misdemeanor.

— S.D. Codified Laws § 2-16-8.1

Vermont

(a)  The legislative council shall continuously maintain and update a formal topical revision of existing permanent statutory law to be known as the Vermont Statutes Annotated. The topical revision shall be arranged in a systematic and annotated form that is consolidated into the smallest practical number of volumes and indexes. (b)  The legislative council, on behalf of the state of Vermont, shall hold the copyright to the Vermont Statutes Annotated.

— Vt. Stat. Ann. tit. 2, § 421.

Colorado’s Ancillary Work Copyright

The Colorado legislature this year, in Feb. 2014, filed for another copyright concerning the state statutes (see bottom of the page for the copyright notice).   This time the copyright does not cover the entire Colorado Revised Statutes as it did in 2006.  Very generously, the Colorado legislature only filed a copyright for “original publications and “editorial work ancillary to the 2013 Colorado Revised Statutes.”  In addition to the language in the copyright filing, the Colorado Legislature also added the same exact language to Colo. Rev. Stat. § 2-5-115.  As I indicated in a previous post, I have no clue what “editorial work ancillary” to the state statutes means.

Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole property of the state of Colorado as owner and publisher thereof. The committee, or its designee, may register a copyright for and in behalf of the state of Colorado in any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff. The committee shall use its best efforts to ensure that any federal copyright registered pursuant to this section is appropriately maintained. Any prior actions of the committee and the revisor in securing such federal copyright are hereby validated.

— Colo. Rev. Stat. § 2-5-115 (emphasis added).

It appears that outside that one section in the Colorado Revised Statutes, Colo. Rev. Stat. § 2-5-115, the terms “original publications” and “editorial work ancillary” that have not been used in any other legislation on the state or federal level.  Furthermore, there has not been a single court that has mentioned the term “editorial work ancillary” in a state or federal court.  Lastly, the single word, ancillary, itself is not even mentioned in Title 17 United States Code at all (that is the section of federal law that governs copyrights).

Broadening my search a bit, I used the phrase “work ancillary,” leading to a bill that appears to have been introduced twice in the New York General Assembly (legislature).

So to find a definition, we are pretty much starting from scratch.

Statutory Construction

This is not the first time and probably not the last where an unclear term is used in legislation.  Fortunately, there is some guidance for situations like this, where there is no clue as to what the word means.

Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

— Colo. Rev. Stat. § 2-4-101.

The Colorado Supreme Court has echoed similar sentiments toward trying to understand words and phrases of the legislature.

Statutory words and phrases should be given their ordinary and accepted meaning unless they have acquired a technical meaning through legislative definition or judicial construction.  

— Parrish v. Lamm, 758 P.2d 1356, 1368 (Colo. 1988): See also People v. Browning, 809 P.2d 1086 (Colo. App. 1990).

Following the guidance of both Colo. Rev. Stat. § 2-4-101 and the Parrish court, I am going to construe a reasonable meaning from the ordinary usage of the words.

But before I start getting into common usage and things, it is probably helpful to know what all goes into the Colorado Revised Statutes to be able to determine, what is original work and what is “editorial work ancillary” to the state statutes.

Colorado Revised Statutes – Inclusion – Non-Statutory

It turns out Colorado has a whole statute (two and a quarter pages, single spaced) that describes everything non-statutory that goes into the statutes. For brevity’s sake, I am going to make a summation of the categories, and not define the subcategories.  If on the other hand you want to read everything that is a non-statutory inclusion feel free to look up Colo. Rev. Stat. § 2–5-102.

1. Extra statutory stuff – statute history, related court opinions and the annotations, cross references, etc.

2. Founding documents (both federal and state) – Declaration of Independence, United States Constitution, Colorado Constitution, court rules, etc.

3. A complete subject index and comparative disposition tables or cross reference indices relating sections of the original 1973 compilation to prior compilations and session laws.

4. The Uniform Commercial Code as a non-statutory inclusion (the Uniform Commercial Code is a set of rules for how commercial contracts and transactions should take place).

5. The arrangement and editing of the Uniform Commercial Code (yep, this is its own point, seriously).

6. Inserted as non-statutory matter, the “Colorado Uniform Limited Partnership Act of 1981″ and the “Revised Uniform Limited Partnership Act.”

7. Inserted as non-statutory matter, the “Colorado Uniform Fraudulent Transfer Act” and the “Uniform Fraudulent Transfer Act.”

8. Comments pertaining to the Uniform Probate Code (wills and trusts) in the appropriate statutes.

9. Inserted as non-statutory matter “Colorado Water for the 21st Century Act.”

10. Inserted as non-statutory matter “Uniform Power of Attorney Act.”

11. Inserted as non-statutory matter “Colorado Probate Code,” as opposed to the model version in section 10.

12. Inserted as non-statutory matter “Uniform Electronic Legal Material.”

PHEW!!!  I have not gone to look through a hard copy of the Colorado Revised Statutes to see if there is anything else non-statutory, but I think at this point I am going to take the Colorado Legislature’s word.  That is a lot of stuff!!!

Meaning of: “All Original Publications and Editorial Work Ancillary to the Colorado Revised Statutes that are Prepared by the General Assembly or its Staff”

The Colorado Legislature is not making it easy for us.  First, they are claiming a copyright to the Colorado Revised Statutes (the copyright filed in 2006 does not appear to be rescinded and appears still valid).  Second, in order to figure the “original publications” and “editorial work ancillary” to the statutes themselves (remember this was a second and separate copyright filed in Feb. 2014) we have to wade through Colo. Rev. Stat. § 2–5-102 and potentially more to get to a suitable definition.

Since there is not a definition provided by the Legislature or the courts I am going to find the ordinary meaning.

“Original publications”

Anything wholly new, not based upon a prior work, that is first published by the Colorado Legislature or its Staff (because the Colorado Legislature employs the Staff, and under the work for hire doctrine….arrghh!).

I think this reasonably means any new legislation that is not based upon a citizen initiative / proposition.  For example, a case could be made that the Colorado Medical Marijuana 2012 statute that the Colorado Legislature filed for copyright protection, may or may not be an “original publication.”  The first law was a citizen’s initiative that was passed by the people of Colorado.  Any new law that the Legislature writes on its own and is not a derivative of an earlier law (by the citizens or another state) probably will be considered an “original publication.”

“Editorial Work Ancillary”

This is where things get a bit trickier.  Since I couldn’t find a definition anywhere, I turned to Merriam Webster (is that common enough?).  Ancillary – adjective – providing something additional to a main part or function. Ok, so anything collateral to the the law.  The main part of the Colorado Revised Statutes is the state law, so anything else could be considered ancillary.  The Colorado Legislature probably did not use the correct copyright terminology here (we’ll cut them some slack because this is not even copyrightable subject matter).  Probably a better term other than “editorial work ancillary” would be “compilations and derivative works.”  As federal law, the United States Code states:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

— 17 U.S.C. § 103 (b).

The pre-existing materials could be considered the main part under our Merriam Webster’s ancillary definition, above.  Thus, any material contributed by the Colorado Legislature or its Staff (can’t forget the Staff), that is mentioned in Colo. Rev. Stat. § 2–5-102, and not written by someone else previously probably qualifies as “ancillary.”

Conclusion

In the end, none of this really matters.

Again the Colorado Legislature or its Staff’s (can’t forget the staff) work product  fits either under the “work for hire” doctrine meaning the Colorado Legislature works for the people of Colorado.   Thus the people of Colorado ultimately own’s all of the Colorado Legislature and its Staff’s work product making the copyright null and void.

In the alternative, federal courts have been reluctant to give copyright protections to any level of government (federal, state, local) unless there is a compelling privacy interest.  Federal copyright law even carves out an exception stating copyright law does not apply to the federal government and courts have applied that to state and local governments.

Colorado Legislature, please stop wasting time and resources by filing for copyrights that in all practicality will not even stand up in a court of law.  Ps. Please learn the industry terms of art, too.

 

Again, here is screen shot and text from the United States Copyright Office’s website:

This copyright protects ancillary works of
This copyright protects ancillary works of the Colorado Revised Statutes 2013
Type of Work: Text
Registration Number / Date: TX0007830665 / 2014-04-04
Application Title: All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.
Title: All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.
Description: Book.
Copyright Claimant: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services. Address: 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States.
Date of Creation: 2013
Date of Publication: 2014-02-11
Nation of First Publication: United States
Authorship on Application: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, employer for hire; Domicile: United States; Citizenship: United States. Authorship: text, compilation, editing.
Previous Registration: 2012, TX 7-668-240.
2011, TX 7-540-344.
Pre-existing Material: text.
Basis of Claim: text, compilation, editing.
Rights and Permissions: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States
Names: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services

 

Colorado Legislature’s Other Copyrights

I think I have firmly established that the Colorado Legislature intent to copyright the Colorado Revised Statutes.  They created their own state statute claiming a copyright in pretty much all work done by or behalf of the General Assembly (the legislature).  Colo. Rev. Stat. § 2-5-115.  Additionally, the Colorado Office of Legislative Legal Services (COLLS) on behalf of the Colorado Legislature, has filed a copyright in 2006 for protection of the entire Colorado Revised Statutes 2006.

By definition of a copyright, it gives the state of Colorado the right to restrict its work product. Even though courts have generally held at every level of government – federal, state, and local – that government employees working within the scope of their jobs do not have copyright protections for their work product, unless a compelling exception applies.

Curious as to what other copyrights the Colorado Legislature has asserted, I went back to the United States Copyright Office’s website and searched a little more.  In this post are a couple of more interesting recent filings for copyright by the Colorado Legislature.

All Original Publications and Editorial Work Ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules

This copyright protects ancillary works of
Colorado copyright protecting ancillary works of Colorado Revised Statutes 2013
Type of Work: Text
Registration Number / Date: TX0007830665 / 2014-04-04
Application Title: All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.
Title: All original publications and editorial work ancillary to the 2013 Colorado Revised Statutes and Colorado Court Rules.
Description: Book.
Copyright Claimant: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services. Address: 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States.
Date of Creation: 2013
Date of Publication: 2014-02-11
Nation of First Publication: United States
Authorship on Application: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, employer for hire; Domicile: United States; Citizenship: United States. Authorship: text, compilation, editing.
Previous Registration: 2012, TX 7-668-240.
2011, TX 7-540-344.
Pre-existing Material: text.
Basis of Claim: text, compilation, editing.
Rights and Permissions: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services, 200 East Colfax Avenue, Room 091, Denver, CO, 80203, United States
Names: State of Colorado by and through the Revisor of Statutes under the Committee on Legal Services

This first copyright application claims editorial work ancillary to the 2013 Colorado Revised Statutes.  I tried looking up the term “editorial work ancillary” in a legal database this morning and I could not find the phrase used except for in Colo. Rev. Stat. § 2-5-115.  It appears the word ancillary, itself, is not even mentioned in Title 17 United States Code at all.  “The committee, or its designee, may register a copyright for and in behalf of the state of Colorado in any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff.”  Colo. Rev. Stat. § 2-5-115.  According to the legislative history this terminology first appeared in Colo. S.B. 261 (2011), which in turn added the language officially to § 2-5-115.  I couldn’t find the language used by any legislation state or federal government, or in a court case to give me guidance as to its meaning.  A search through a couple of different search engines produced the same results.  In a future blog post I will explore the possible meanings of that phrase.

Regardless, it appears the Colorado Legislature in 2013 filed for and is claiming to assert some type of copyright related to the Colorado Revised Statutes.

Colorado Tax Code 2013

Colorado tax code 2013 copyright.
Colorado tax code 2013 copyright.
Type of Work: Text
Registration Number / Date: TX0007782110 / 2013-12-09
Application Title: Colorado Tax Code 2013 Edition.
Title: Colorado Tax Code 2013 Edition.
Description: Book.
Copyright Claimant: Matthew Bender & Company, Inc. Address: 701 E. Water St., Charlottesville, VA, 22902.
The Committee of Legal Services for the State of Colorado, Transfer: By written agreement. Address: 136 State Capitol, Denver, CO, 80203.
Date of Creation: 2013
Date of Publication: 2013-11-26
Nation of First Publication: United States
Authorship on Application: Matthew Bender & Company, Inc., employer for hire; Domicile: United States; Citizenship: United States. Authorship: editing.
Pre-existing Material: text.
Basis of Claim: editing.
ISBN: 978-0-7698-7299-5
Names: Matthew Bender & Company, Inc.
Committee of Legal Services for the State of Colorado

The Colorado Tax Code is found in Title 39 of the Colorado Revised Statutes.  You guessed it, Title 39 deals only with Taxation.  First, I have no clue why the Colorado Legislature is trying to assert a copyright claim over the 2013 Tax Code.  As I have been continuing to say, over and over, the law should be owned by the people – not the people’s representatives.  As you can see both from the screen shot and from the text I pasted above, Matthew Bender, somehow also asserts some sort of claim to copyright the 2013 Colorado Tax Code. The state is clearly trying to own the law and share it’s ownership stake with a private corporation, LexisNexis.

Furthermore, I searched on the internet to try to find the 2013 Colorado Tax Code and the only place I could find it was on LexisNexis’ website.  Remember, the website where you have to sign a contract of adhesion giving up the right to sue LexisNexis, and if somehow you can sue, you agree to only sue in New York courts?

Acceptance Agreement to Read Colorado Statutes
Acceptance Agreement to Read Colorado Statutes

Yeah, so in order to see the official Tax Code online, you have to sign a contract with LexisNexis and give up legal rights you have in order to view the law.  I don’t know if the Colorado Tax Code fits in the Legislature’s definition of “editorial work ancillary” to the 2013 Colorado Revised Statutes or not.  But it seems like it could be plausible simply because the Colorado Legislature filed a copyright for the tax code itself.

Colorado Medical Marijuana Statutes and Regulations 2012

Colorado Medical Marijuana Statute Copyright
Colorado Medical Marijuana Statute Copyright
Type of Work: Text
Registration Number / Date: TX0007598178 / 2012-10-09
Application Title: Colorado Medical Marijuana Statutes and Regulations 2012.
Title: Colorado Medical Marijuana Statutes and Regulations 2012.
Description: Book, 220 p.
Copyright Claimant: Matthew Bender & Co., Inc. Address: 701 E. Water St., Charlottesville, VA, 22902.
Committee on Legal Services for the State of Colorado, Transfer: By written agreement. Address: 1900 Grant St., 9th Floor, Denver, CO, 80203.
Date of Creation: 2012
Date of Publication: 2012-09-26
Nation of First Publication: United States
Authorship on Application: Matthew Bender & Co., Inc., employer for hire; Domicile: United States; Citizenship: United States. Authorship: editing.
Pre-existing Material: text.
Basis of Claim: editing.
ISBN: 978-0-7698-5733-6
Names: Matthew Bender & Co., Inc.
Committee on Legal Services for the State of Colorado
Colorado, Committee on Legal Services

Through all the copyrights that I skimmed through, it did not appear to be a common practice to try to copyright individual pieces of legislation. ** It also appears the 2011 Colorado Medical Marijuana statutes were copyrighted. More interestingly, Colorado voters passed Ballot Initiative 20 in 2000 (went into effect in 2001) which decriminalized medical marijuana.  That was the second red flag.

Is the Colorado Legislature trying to copyright a derivative work that was authored and passed by the people of Colorado through a ballot initiative?  Legally it may or may not be a derivative work.  However, the intent is there.  It was the people of Colorado who had the idea, wrote down the idea, and passed it into law.  Then through modifications, and perhaps very significant modifications the Colorado Legislature along with LexisNexis are trying to claim ownership?  This just seems even worse to me.

As I have tried to argue, and I hope persuasively, I do not believe state legislature’s, whether it be Colorado or any other state, can claim a copyright on state legislation.  However, it appears there is a pattern and practice of the Colorado Legislature trying to copyright its laws.  To make matter worse, many of these copyright applications are applied for contemporaneously with Matthew Bender, a LexisNexis subsidiary.  How can the Colorado Legislature justify to the people of Colorado this act?  Trying to give a copyright claim to a private corporation in the laws of the state of Colorado?  Was it for profit?  Or was there another motive at play?

Colorado Legislature’s Claim Right to Copyright All Work Product

Apparently, as I am slowly finding out, anything that the Colorado Legislature produces they believe is their own work product.  Often times they even go so far as to file official copyrights with the United States Copyright Office in Washington D.C. (as I will show verification of this later).  Because the legislature believes that it owns the copyright to documentation it produces it sets arbitrary limits on reproduction, distribution, etc.

I want to place a complete and up-to-date version of the Colorado Revised Statutes on this website.  However, yesterday the Legislature told me over the phone that the only way I could reprint a copy of the Colorado Revised Statutes would be to purchase them through LexisNexis.  There are two problems with this: 1. LexisNexis uses DRM which restricts copying, printing, and sharing of their digital material; and 2. Their Ebook of the Colorado Revised Statutes sells for $298.

Through a little digging this morning it turns out that the Colorado Legislature and LexisNexis jointly filed for a copyright on the Colorado Revised Statutes.  Below is a screen shot taken directly from the Copyright Office’s searchable database.

Colorado Legislature and LexisNexis copyright of Colorado Revised Statutes
Colorado Legislature and LexisNexis copyright of Colorado Revised Statutes

Here is the text in case you can’t see it from my screen shot:

Type of Work: Text
Registration Number / Date: TX0006466393 / 2006-11-24
Title: Colorado revised statutes.
Edition: 2006 ed., Softbound ed.
Notes: Includes tables, index & CD-ROM.
Copyright Claimant: Committee on Legal Services for the state of Colorado
Date of Creation: 2006
Date of Publication: 2006-08-28
Authorship on Application: Matthew Bender & Company, Inc., employer for hire.
Previous Registration: Prev. reg.
Basis of Claim: New Matter: editorial additions & revisions.
Copyright Note: Cataloged from appl. only.
Names: Committee on Legal Services
Colorado
Matthew Bender & Company, Inc.
Colorado. Committee on Legal Services

The Colorado Committee on Legal Services is the organization where I sent my open records request yesterday.  Matthew Bender is a subsidiary of LexisNexis.  So legally, both the Colorado Legislature and LexisNexis equally assert a copyright claim over the Colorado Revised Statutes.

Copyrights

Let’s back up the train a little bit and explain copyright law before we get into Colorado’s claims in depth. In order to understand if Colorado has a valid copyright claim, we need to understand the federal copyright law first.

“Copyright is a form of protection provided by the laws of the United States (title 17 U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works.”  That statement comes from the United States Government Copyright Office, Copyright Basics.  In other words, copyright gives a property interest to people who create new stuff.  They get to own the rights to their new stuff for a certain period of time, and they can place all sorts of restrictions on what can be done to it.  You made it, you get to decide what get’s done with it for a limited time (copyrights only last a certain number of years).

Ok, that is kinda simple.  How do they determine who owns the copyright?

One way is the “work for hire” doctrine. The Copyright Office explains:

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

1. a work prepared by an employee within the scope of his or her employment; or

2. a work specially ordered or commissioned for use as:  • a contribution to a collective work. • a part of a motion picture or other audiovisual work. • a translation. • a supplementary work. • a compilation. • an instructional text • a test • answer material for a test • an atlas

The Colorado Legislature’s work on the Colorado Revised Statute fits neatly within the definition provided in “work for hire.”  Each legislator is hired by the public.  The legislator is paid out of public funds, taxes.  The scope of the legislator’s employment includes drafting and voting on legislation, ideally that is in the public’s interest.

Let’s think of it another way.  For argument’s sake, let’s say I am hired by the Denver Post to write an opinion piece about how incredibly arrogant it is that the Colorado Legislature thinks it owns the law.  The Denver Post and I enter into a formal employment relationship.  The Denver Post says it will pay me for my work.  The Denver Post says it hires me to specifically write on this topic for them.  Just like the Colorado Legislature is hired to write and pass laws for the people of Colorado — not the people of Nebraska, but Colorado.  Then let’s say the New York Times calls me up and says they think I am fabulous.  They want to exclusively publish my articles about how incredibly arrogant it is that the Colorado Legislature thinks it owns the law.  I enter into an exclusive contract with the New York Times.  While my work is originally for the Denver Post, the New York Times is reaping the financial rewards of my hard work.

This idea is just common sense.  If someone hires you to do a job, you personally don’t own the copyright, nor can you sell it.  Your employer paid for your work and owns your work product.

The second concept relates back to the “work for hire” doctrine. It is the United States Government exception to claim a copyright.

The United States Government by federal law cannot claim a copyright to any materials prepared in during the scope of the employment.  17 U.S.C.§ 105.

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

It is clearly laid out by the statute the United States Government cannot claim a copyright interest.  What is not mentioned in the text of the statute are state and local governments.  What about their work product?  Can they claim a copyright interest in it? — Like Colorado so clearly has done.

The courts have weighed in on municipal building codes as not being copyrightable.

Lawmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by “the people,” in an infinite variety of individual and organizational capacities…In performing their function, the lawmakers represent the public will, and the public are the final “authors” of the law.

Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791, 799 (5th Cir. 2005) (en banc).

The Fifth Circuit Court of Appeals is basically applying the work for hire doctrine to the government.  The government works for the people, thus the people are the owners of the work product.

Furthermore, there has to be material changes to a governmental work by a non-governmental actor to qualify for copyright protection.  Du Puy v. Post Telegram Co., 210 F. 883 (3rd Cir. 1914) (describing a claim made about a bulletin made by an employee of the Bureau of Education containing Peace Day program suggested for use in the schools).  The court said you can’t change a sentence here and there and call it your own.  The majority of what is written has to be new.

A court went so far as to say some military documents are not-copyrightable and are in the public domain.  Eggers v. Sun Sales Corp., 263 F. 373, 374-75 (2nd Cir. 1920) (holding General Pershing’s official report “could not be copyrighted“).

The government can still restrict usage of its work product in limited exceptions.

The government is allowed to withhold documents is if there is a strong privacy interest at stake. Defendants did not have the right to the Multistate Bar Exam (part of the licensing test for attorneys).  National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34, 38 (N.D. of Ill. 1980). “To adopt the defendant’s version of § 704(d) also would make the Copyright Act unavailable for protecting a secure test.” I think that is fair.  To protect the integrity of the exam, the government does not have to make it public.  The government has an interest in making sure only qualified persons receive licenses, so that interest outweighs the public’s right to know.

Another instance is if you sign an employment contract giving up the right to your work product.  Pfeiffer v. CIA, 60 F.3d 861 (D.C. Cir. 1995) (holding a CIA Historian’s research into the Bay of Pig, while employed by the CIA, could not take the research with him after his retirement because of his employment contract with the CIA).  However the court went on to say, “Of course, we express no view upon the question whether a third-party who copies a government document, such as a journalist presumably unencumbered by the ‘extremely high degree of trust’ invested in an employee of the CIA, could likewise be required to relinquish it.”  Pfeiffer v. CIA, 60 F.3d 861, 865 (D.C. Cir. 1995).  The Court says the employee gave up the right to take documents with him from the CIA. Whether the documents should be made public would be a completely different analysis if a private citizen not associated with the CIA filed a Freedom of Information Act request (FOIA).

Here, in my case, in Colorado, none of the exceptions to the copyright rule apply.  First, there is not a privacy interest in keeping the Colorado Revised Statutes secret.  In fact, the common law would tell us otherwise with: ignorance is not an excuse of the law.  If we are expected to know the law, by the courts, then common sense would say that the state statutes, or the law should be made as available as possible to give everyone to be free of ignorance.  Second, I do not currently, nor have I ever worked for the Colorado Legislature, so there is not even a remote possibility that I gave up my right to request the statutes.

Colorado’s Statutory Claim to Copyright

I think the copyright law is pretty clear that it is bad policy / bad law that the Colorado Legislature claims a copyright over the Colorado Revised Statutes.  The statutes should be in the public domain.  I hope the Colorado Legislature removes this bad law:

First. Colo. Rev. Stat. § 2-5-115 – Copyright by State [Colorado] (2013)

Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole
property of the state of Colorado as owner and publisher thereof. The committee, or its designee,
may register a copyright for and in behalf of the state of Colorado in any and all original
publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by
the general assembly or its staff. The committee shall use its best efforts to ensure that any federal
copyright registered pursuant to this section is appropriately maintained. Any prior actions of
the committee and the revisor in securing such federal copyright are hereby validated. (emphasis added).

This first statute sets out in the title the assertion that the state owns the copyright to the Colorado Revised Statutes.

Second. Colo. Rev. Stat. § 2-5-118 (2) (2013)

(2) (a) Any person, agency, or political subdivision desiring to publish, reprint, or distribute, whether by use of printed matter or by use of computer or other electronic means, the statutes of the state of Colorado using the statutory database prepared by the general assembly or its staff containing the official text of the statutes, shall submit to the committee or the committee’s designee:
(I) A statement specifying those portions of the statutes the person, agency, or political subdivision seeks to publish;
(II) A statement specifying whether the person, agency, or political subdivision is seeking to publish, reprint, or distribute any of the publications ancillary to the statutes as prepared by the general assembly or its staff pursuant to subsection (2.5) of this section;
(III) The costs and fees required by the committee as specified in paragraph (c) of this
subsection (2); and
(IV) Such other information as the committee reasonably requires. (emphasis add).

So let me get this straight, Colorado Legislature.  If I want to go in and print or redistribute the “statutes of the state of Colorado” using the state government’s database then I have to submit information that the agency reasonably requires.  What does that mean?  Do they want a background check to see if I am a felon?  Do they want a full health report to screen me for any pre-existing conditions before letting me use their database?  Or merely, does the committee want to see my voting record?

Third. Colo. Rev. Stat. § 2-5-118 (2.5) (2013)

(a) Any person, agency, or political subdivision desiring to publish, reprint, or distribute, whether by use of printed matter or by use of computer or other electronic means, any of the publications ancillary to the statutes of the state of Colorado shall make prior written application to the committee, in which the applicant:
(I) Specifies what ancillary publications it seeks to publish;
(II) States generally the purpose for the publication, reprinting, or distribution and the persons or classes of persons to receive copies thereof;
(III) Demonstrates to the satisfaction of the committee that such ancillary publications will be accurately reproduced; and
(IV) Agrees to pay the costs and fees required by the committee. (emphasis added).

This says pretty much the same thing as the section above, but it leaves out the whole database part.  If I want to redistribute everything, I have to go through the “Colorado Inquisition.”

Fourth. Colo. Rev. Stat. § 2-5-118 (6) (2013)

Notwithstanding any other provision of this section to the contrary, a person, agency, or
political subdivision may publish, reprint, or distribute two hundred or fewer sections of
the Colorado Revised Statutes, with or without the ancillary publications thereto, for
educational purposes. (emphasis added).

So there is an express limitation on what I can reproduce great!

 

Thanks for looking out for the people, Colorado Legislature!

Colorado Revised Statutes – Private and Copyrighted

It appears the Colorado State Government and LexisNexis think they share some weird type of private ownership over the Colorado Revised Statutes (you know, the state laws).  The laws are written by and voted for by legislators elected and paid for by the people of Colorado.  Additionally, the laws are the rules that govern civil and criminal matters in the state.  The people have more than a passing interest in ownership of the state statutes.

Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole
property of the state of Colorado as owner and publisher thereof. The committee, or its designee,
may register a copyright for and in behalf of the state of Colorado in any and all original
publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by
the general assembly or its staff. The committee shall use its best efforts to ensure that any federal
copyright registered pursuant to this section is appropriately maintained. Any prior actions of
the committee and the revisor in securing such federal copyright are hereby validated. (emphasis added)

— Colo. Rev. Stat. § 2-5-115 – Copyright by State (2013)

Colorado seems to employ the strip club policy of “you can look, but don’t touch” when it comes to the Colorado Revised Statutes.  You have to sign a contract of adhesion with LexisNexis to view them anywhere on the internet.  You are limited by statute how much you reprint or redistribute without violating Colorado law. Colo. Rev. Stat. § 2-5-118.  You can’t purchase the statutes from the Colorado Legislature.  You can only purchase them through a single publisher, LexisNexis for about $300 either for the digital or a hardbound version (apparently the costs are the same to make an Ebook as it is a traditional hardbound book).

In short: the state of Colorado thinks it has a copyright interest in the Colorado Revised Statutes that it can contract to LexisNexis.  I don’t think they can.

Part 1

Part 2

Today is part 3 of my journey into the Colorado Revised Statutes.

I want to place a complete copy of the Colorado Revised Statutes on this website free of charge to download, for anyone who is interested.  The problem is that I can’t find a copy, and the state of Colorado and LexisNexis both claim to have some sort of copyright interest in the public state statutes.

Today I called up the Colorado Office of Legislative Legal Services (COLLS) based upon the advice I received yesterday on the Colorado Secretary of State’s website.  “Any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services… (please see §2-5-118, C.R.S.).”  I thought, “ok, I call up and ask for permission.”

I dialed COLLS and explained that I wanted a copy of the Colorado Revised Statutes in electronic format.  I then asked if I made my inquiry to the correct department.  Maybe the Secretary of State’s website did not know what it was talking about.  Anyway, the nice lady on the other end said COLLS is the correct department, and she offered to give me the information to order the Colorado Revised Statutes from LexisNexis.  “I don’t want to purchase the statutes from LexisNexis, can’t you give them to me for a reasonable price?”  The lady on the phone paused, and replied that she couldn’t because LexisNexis is the contracted publisher of the Colorado Revised Statutes and they would have to sell it to me.  She then suggested that I could use the free version on LexisNexis’ website, the one with the forced contract.  “I’m sorry, I don’t want to sign a contract to read state law,” I replied.

While still on the phone with the nice lady from COLLS, I decided to take a different route.  “I would then like to file an open records request under the Colorado Open Records Act,” I stated.  She seemed perplexed.  “I will have to transfer you.”  She then transferred me to another lady’s voice mail.  I left my oral request with her and my phone number. ** I went into detail in the previous post about why I think the current state surrounding the distribution of the state statutes may violate the Colorado Open Records Act.

I decided I better place a formal email too.  So I wrote out my request and sent it to olls.director@state.co.us, the only email address I could find.  I placed my request for: 1. A complete current copy of the Colorado Revised Statutes; and 2. All contracts between the Colorado Legislature and LexisNexis.  I really want to see what the state voluntarily gave up in the contract.

In the meantime, I called down to LexisNexis.  I thought since they have them on their website for free, maybe they would have it in a downloadable format.  I talked to a sales representative in their publishing department (like I was instructed to do by the nice lady at COLLS) and I was told that it was only available for purchase — other than the free version where you had to sign your life away and couldn’t download.  For a reasonable price of $298 (please note the attempt at sarcasm), I could own the Colorado Revised Statues in Ebook format.  However, if I chose to purchase it from LexisNexis I still couldn’t do what I wanted with it.  It is unclear if the book comes with pre-installed Digital Rights Management tools (commonly referred to as DRM) that place limitations on the ebook.  Such limitations can be, who it is shared with, how many pages are printed, and what can be copied.  See LexisNexis DRM explanation.

Colorado Revised Statutes Ebook

Colorado Revised Statutes Ebook

Remember from my blog post yesterday noted that the Colorado Legislature set the bar for what they needed to do to provide statutes for the public.  “The state acknowledges its obligation to provide official sets of statutes that are reasonably priced, accurate, and easy to use.” Colo. Rev. Stat. § 2-5-105.  Putting the misapplied copyright law aside, if the state of Colorado continues to make the argument that LexisNexis is the only place where one can purchase the state statutes, are they implying that $300 for an Ebook that the tax payers subsidize is reasonable?  I can not see how the Colorado Legislature is not breaking their own statutes that they created, by allowing LexisNexis to gouge purchasers because they are the sole distributor.  Does the Colorado Legislature need money that bad that they have to charge $300 for state statutes?  I mean, if things are really that bad maybe we can take up a collection.   I am not sure how much money the Colorado Legislature is making off the sales of the state statutes from LexisNexis, but maybe they can create a Kickstarter drive or something to offset the losses.  On a side note, filing an open records request in the future to find how much profit the Colorado Legislature made each year off the sales of the Colorado Revised Statutes from LexisNexis is not a bad idea.

The cavalier behavior of the Colorado Legislature on this subject is really disturbing.  It really does appear the Colorado Legislature thinks it has a private property interest in the Colorado Revised Statutes.

Colorado Revised Statutes are made available for public use by the Committee on Legal Services of the Colorado General Assembly through a contractual agreement with the LexisNexis Group.  Any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services; permission is not required to reprint fewer than 200 sections of C.R.S. (please see § 2-5-118, C.R.S.).

— A .pdf posted on Colorado.gov. A screen grab of the document is below.

Colorado Revised Statutes contract LexisNexis
Colorado Revised Statutes contract LexisNexis

 

Here is the text of my Open Records request.

 

To Whom It May Concern:

Pursuant to Colorado Open Records Act, Colo. Rev. Stat. § 24-72-201 et. seq., I place a request for records to be used for non-commercial purposes that includes my own academic research, and additionally I will make the documents freely available on my website http://cocommonlaw.com:

1. Please provide a complete and current copy of the Colorado Revised Statutes.

2. Please provide a complete copies of any and all contracts the Colorado Legislature has entered into with LexisNexis

I will pay any reasonable fees up to $25 for the documents to be placed on electronic media.  If there are charges associated with my request, please inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I request your response within three (3) business days, as per Colo. Rev. Stat. § 24-72-203(3)(b). If you are unable to complete the request within that time, please contact me with your progress and expected completion date.

As an aside, I left a voice mail with Jennifer XXX (I believe that is her name from her voice mail) and left her a voice mail message asking to make an open records request.  The person who transferred to me on the telephone, was unclear who the correct person was to submit the request.  Please let this email message serve as a formal request for Open Records.

A Case for Ignorance of Colorado Law – Revisited

This post is a follow-up post to A Case for Ignorance of Colorado Law, where I detailed my trials and tribulations of trying to read the Colorado Revised Statutes. My previous article focused generally on how the system is screwed up.

Here is a quick recap of the situation.   If you try to look up a Colorado state statute on the internet it appears any official state government website will redirect you to a private website, LexisNexis.  To enter LexisNexis’ website the user needs to agree to the terms and service of the site which include a disclaimer of liability and a choice of forum clause.  Then to compound the situation the Colorado legislature severely restricts the distribution of the state statutes.  If I wanted to provide a copy of the state statutes here, free to download, it is likely the Colorado legislature could sue me for violating Colo. Rev. Stat. § 2-5-118.  So if ignorance is no excuse to know the law, citizens in Colorado are placed between a virtual rock and a virtual hard place when trying to access the state statutes online.

So let me start out this post by clarifying legally where I think there are legal problems: 1. Colorado’s contract with LexisNexis to provide the state statutes online violates free speech and due process protections; and 2. The Legislature’s restriction on distribution and dissemination of the statutes violates free speech and due process protections as well as federal copyright law.

What is the problem?  Doesn’t the mere fact that the statutes are on the internet suffice?  Probably not.  This is starting to get into an emerging area of the law where the internet, free speech, and due process all converge.

State Rules

To be fair, let’s see what Colorado’s Constitution and statutes have to say about the issue.  As a preface to this section, I want to warn that I did not find much information directly on point.  Furthermore, some of the statutes seem to conflict.

A little surprisingly, the Colorado Constitution says little on this subject.  “The general assembly shall provide for the publication of the laws passed at each session thereof.” Colo. Const. art. VIII, § 8. This section is squeezed between land value increases and limited gaming permitted sections.  Fortunately, the state statutes clarify. “[T]he state acknowledges its obligation to provide official sets of statutes that are reasonably priced, accurate, and easy to use.” Colo. Rev. Stat. § 2-5-105.  The state of Colorado holds itself to the standard of just having to make the statutes available.  People may have to purchase them, but they have to be available.

The Colorado Secretary of State’s website also warns that there is a limit to the fair use of the state statutes.  “In addition, any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services; permission is not required to reprint fewer than 200 sections of C.R.S. (please see §2-5-118, C.R.S.).”  Also the legislature expressly reserves the right to limit reprint and distribution of the statutes.  Colo. Rev. Stat. § 2-5-118.  I guess that is why I could only find the statutes linked to on LexisNexis.  Honestly, I think this is just comical the state of Colorado is asserting a copyright claim to limit distribution. “Judge, you know, these people need to be prosecuted to the fullest extent of the law, for reprinting too much of the law.”

Colorado Secretary of State's website notes the statute asserting a state copyright over the Colorado Revised Statutes
Colorado Secretary of State’s website notes the statute asserting a state copyright over the Colorado Revised Statutes

To throw salt into the wound a little, and then rub it in a bit, the Colorado Secretary of State’s website publishes on it’s official website both current and pending Code of Colorado Regulations.  To put matters into perspective this includes all of the codes and rules pertaining to bingo and raffle games.  Apparently bingo and raffle game regulations are important enough to have official copies placed on official state websites without being forced to sign a contract with a third-party.  So we know that Colorado doesn’t get overly protective about everything — the codes and regulations are fair game.  It is the state statutes that they are overly possessive about.

It turns out Oregon asserted a copyright over it’s statutes and starting sending out cease and desist letters for unauthorized distribution.  The legal argument later settled amicably out of court.

If there is any solace for the people of Colorado, at least the Colorado legislature has not threatened to sue them yet for trying to distribute state law.

Free Speech and Federal Copyright Law

Colorado’s claims about the state statutes violate free speech protections and are not supported by federal copyright law.

The state of Colorado unfairly restricts free speech rights under the United States Constitution.  By forcing a contract upon a person before they can even view the state statutes anywhere on the internet could constitute a prior restraint on speech and a violation of the First Amendment to the Constitution.  Prior restraints can take different forms, but here it is the restrictions on speech before it occurs.  The state statutes may be an unconstitutional prior restraint because they say what, I or anyone, may do with the statutes before I get a chance to use them.  A second prior restraint comes from the forced contract with LexisNexis.  LexisNexis is acting as an agent of the Colorado government by being the official host of the state statutes.  While acting on the government’s behalf it forces me to accept disclaimers, choice of forum clauses, etc. if I want to see the laws.  The choice of forum clause my restricts my liberty to file a lawsuit about Copyright to a court in New York, even though nothing has to do with New York in this case.  See generally Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). Both instances are most likely prior restraints and a violation of free speech protections.

Then Colorado has this wacky copyright law too.  Copyright law is federal law and if Colorado decided to sue someone to assert their copyright over the Colorado Statutes, the suit would have to be filed in federal court.  The United States government determines what is copyrightable and what is not.  The statute states copyright protection is not available for the United States Government. See 17 U.S.C. § 105.  The statute does not clarify if it is meant to encompass state and local governments, or even governmental contractors.  This decision has been left to the courts.

The good news is a federal court of appeals case is pretty close to on point and provides some direction.  A Texas man put up two municipal building codes on his non-commercial website.  The cities based their municipal code largely upon the purchased model code written by Southern Building Code Congress International, Inc. (SBCCI), a non-profit, non-governmental organization.  Unable to easily locate the cities’ codes, the Plaintiff purchased the model codes directly from SBCCI for $72.  Along with the purchased code came a copyright notice that forbade copies or distributions of the model code.  Plaintiff cut and pasted the model code and placed it on his website.  SBCCI claimed copyright infringement.

Lawmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by “the people,” in an infinite variety of individual and organizational capacities…In performing their function, the lawmakers represent the public will, and the public are the final “authors” of the law.

Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791, 799 (5th Cir. 2005) (en banc).

I don’t think that the legislature’s claims about a copyright interest hold much water.

In fact, it also potentially violates Colorado Open Records Act (CORA (and I will link to the Colorado Secretary of State’s summation instead of LexisNexis on this one)).  The general rule is “all public records shall be open for inspection by any person at reasonable times.”  Colo. Rev. Stat. § 24-72-201.  The forced contract by LexisNexis probably violates the open records act because then the statute is not genuinely open for inspection.  It is only open for inspection if the terms of service are agreed to beforehand. 

Due Process

Colorado’s treatment of the state statutes also violates procedural due process.

Due process is the idea of fundamental fairness in our justice system. “No person shall be deprived of life, liberty or property, without due process of law.” Colo. Const. art. II, § 25; See also U.S. Const. amend V. 

First, we need to start of with the principle that ignorance of the law is not an excuse. Lambert v. California, 335 U.S. 225, 228 (1957).  “Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.” Cheek v. United States, 498 U.S. 192, 199 (1992).  It stands to reason how the government can expect citizens to know the law, but to place severe limits on its distribution.  A reference is necessary to know the law in the present day.  The complexity and breadth make knowing it without a reference prohibitive.  The Court even acknowledges that fact in regards to tax law in Cheek.

Part of what comprises due process is notice.  “Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.” Lambert v. California, 335 U.S. 225, 228 (1957).   In other words, a fair fight requires both parties to know the rules of the game.  Even if you do not know the rules of the game, you need to at least be given a chance to learn them or prepare, which is the essence of notice.

Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. So long as the law is generally available for the public to examine, then everyone may be considered to have constructive notice of it; any failure to gain actual notice results from simple lack of diligence. But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them.

Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730, 734-35 (1st Cir. 1980).

The first problem is not where the Colorado Statutes are located online, it is the hoops that one is required to go through in order to read them.  “A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful.” City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999).  Colorado’s statutes lose their meaningfulness when a user must submit to LexisNexis’ terms of service.

The second problem is the copyright restrictions on dissemination.  In criminal prosecutions especially, it is not fair for the government to have complementary copies of the statutes and for the citizenry to be subject to copyright violations.  For an equal playing field, the statutes should be available without restrictions to both parties.

Conclusion

Honestly, I just hope the state of Colorado changes it’s policies and puts the statutes up on the legislature’s website, accessible to everyone, for free, without having to sign a contract.  And any claims to a copyright of the Colorado Statutes should be waived immediately by the government.