Tag Archives: internet law

Social Media and Colorado’s Sunshine Law

Social media makes it easy for any state or local government body with advisory, policy-making, or rule-making authority to discuss matters before them.  The problem is if these social media accounts are private and not accessible to the public then it is a violation of Colorado Sunshine laws.

Sharing is caring under Colorado’s Sunshine law.

The public policy for the state of Colorado set out in the Colorado Revised Statutes is “that the formation of public policy is public business and may not be conducted in secret.”  Colo. Rev. Stat. §24-6-401.  That seems like a pretty good goal — governmental transparency is a theme of this blog.

What makes social media dangerous to Sunshine laws is that it can be made private and very difficult to find out the contents of the conversations.

Denver-City-Council-Twitter
Denver-City-Council-Twitter- @DenCityCouncil

Continue reading Social Media and Colorado’s Sunshine Law

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.

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.

 

Colorado Law – A Case for Ignorance

Ignorantia legis neminem excusat.  Otherwise in English: there is no excuse for ignorance of the law.  But in the case of the state of Colorado, I will argue that there is state created room for an ignorance of the law.

Interested in Colorado law, I wanted to read up on the statutory law.  This turned out much tougher than I previously had thought it would be.  First things first, I am currently living in Arizona. While I visit Colorado a couple of times a year, taking a trip down to the local library to read the statutes was not an option.  So I went to look online — it is the year 2014, the statutes must be online right?

This is where things get perplexing, frustrating, and downright irritating as a citizen trying to civically educate himself.  The statutes are linked to a private third-party service, LexisNexis, from several official Colorado governmental websites: Colorado Legislature (where they make the laws); Colorado.gov (where there is even a tutorial on how to use the non-governmental service); Colorado Attorney General (click on an individual statute); Colorado Secretary of State; and probably countless other websites within the state government. Other than it being really lazy for Colorado not to have their statutes on their own website…. I mean how much can it cost to store and transmit a bunch of text?  The priorities of the state are quickly seen from their homepage where there is a large revolving banner ad which promotes Colorado’s technological savyness: “renew your driver’s license online today”; Colorado.gov/renewtags (for auto registration); the link to DORA (Colorado Department of Regulatory Agencies.  But nowhere in the entire web of Colorado governmental websites are the state statutes.

The state presumes for you to know the law, but to read the law you must enter into a contract of adhesion (a forced agreement) with a private company (LexisNexis) in order to know the law.

Clicking on the links from any of the state governmental websites took me to LexisNexis where I then tried to read the laws.  As I think I might get to the laws, finally, I get hit with this huge sign (seen screenshot below) telling me that I must agree to this private company’s terms of service to even read the laws of the state of Colorado — if I do not agree, I cannot read the laws.

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

Here is the text from the screenshot:

This website is maintained by LexisNexis®, the publisher of the Colorado Revised Statutes, to provide free public access to the law. It is not intended to replace professional legal consultation or advanced legal research tools. To report errors regarding this website, please complete the Feedback Form.

Terms & Conditions
Your use of this service is subject to Terms and Conditions. Please indicate your agreement to the Terms and Conditions by clicking “I Agree” below.

Are you kidding me?  I have to basically sign a contract with a third party in order to view the laws of Colorado on the Internet?  Maybe it is just me.  Maybe it is too much to expect the government who is enforcing their laws to actually have a copy of them on their website.

The University of Denver School of Law does not think much of it as it instructs on its website to view and use the Colorado Revised Statutes. “The C.R.S. (Colorado Revised Statutes) are made available for public use by the Committee on Legal Services of the Colorado General Assembly through LexisNexis. The state of Colorado owns the copyright to the statutes (See C.R.S. 2-5-115).”  Apparently, the law school does not think anything of instructing people to enter a contract of adhesion (a forced contract) with LexisNexis to read the Colorado laws.

Let’s see what sorts of things are the Terms & Conditions that must be agreed to before one is allowed entry.  I will comb through these in chronological order picking out the ones I find interesting.

“8. Advertisers. This Web Site may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on this Web Site is accurate and complies with applicable laws. Provider will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.”

Advertisers?  I did not see any advertisers when viewing the Colorado Statutes…but this leaves open the door for Budweiser, Marlboro, or Betty Crocker to advertise and perhaps sponsor the Colorado Revised Statutes in the future.  Just think of the opportunities…”The Colorado Criminal Code is brought you by the sponsorship of Ficticious Brand Bailbondsmen.” Oh, Colorado.

“16. DISCLAIMER. THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, AND POSTINGS ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, AND THE POSTINGS INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) THIRD PARTY COMMUNICATIONS, (C) ANY THIRD PARTY WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THIS WEB SITE, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (D) THE UNAVAILABILITY OF THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, THE POSTINGS, OR ANY PORTION THEREOF, (E) YOUR USE OF THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, OR THE POSTINGS, OR (F) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THIS WEB SITE, THE INTERACTIVE AREAS, THE CONTENT, OR THE POSTINGS.” (emphasis added).

Lawyers write things in all capitals because things are important.  They want to get your attention and for your to read it.  Never mind, that studies show that it is more difficult to read and comprehend information that is typed in all bold — that is a discussion for another day.  This paragraph disclaims LexisNexis’ liability.  LexisNexis says that you or I cannot hold them responsible for any errors or omissions from their website.  Hmmm.  That is interesting.  What if there is an error in one of the Statutes that materially (a good legal word) affects the meaning?  LexisNexis is basically saying, “we’re sorry, but it is not our problem.  You were forced agree not to hold us liable to even read the Statutes.”

“22. Governing Law and Jurisdiction. The Terms of Use are governed by and construed in accordance with the laws of the State of New York and any action arising out of or relating to these terms shall be filed only in state or federal courts located in New York and you hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action.”

The irony of this term is awesome.  If I have a problem reading, accessing, or using the Colorado Statutes that rises to the level of litigation, I am forced to use the laws of the State of New York.  Hahaha.  I think that speaks for itself.

Now, I know the statutes are available at local libraries throughout Colorado, and probably other governmental organizations in print format.  My point is as the print format is continually being supplemented, if not replaced by the internet, is it really fair in the name of justice to force citizens to sign a contract to read the laws of the state?

If I do not want to sign all my rights away to LexisNexis just to read the Colorado Revised Statutes online, doesn’t that support the case for ignorance of the law, at least just a little bit?