skip navigation
search

In the fall of 2009, the American Association of Law Libraries (AALL) put out a call for volunteers to participate in our new state working groups to support one of AALL’s top policy priorities: promoting the need for authentication and preservation of digital legal resources. It is AALL policy that the public have no-fee, permanent public access to authentic online legal information. In addition, AALL believes that government information, including the text of all primary legal materials, must be in the public domain and available without restriction.

The response to our call was overwhelming, with volunteers from all 50 states and the District of Columbia expressing interest in participating. To promote our public policy priorities, the initial goals of AALL’s working groups were to:

  • Take action to oppose any plan in their state to eliminate an official print legal resource in favor of online-only, unless the electronic version is digitally authenticated and will be preserved for permanent public access;
  • Oppose plans to charge fees to access legal information electronically; and
  • Ensure that any legal resources in a state’s raw-data portal include a disclaimer so that users know that the information is not an official or authentic resource (similar to what is included on the Code of Federal Regulations XML on Data.gov).

In late 2009, AALL’s then-Director of Government Relations Mary Alice Baish met twice with Law Librarian of Congress Roberta Shaffer and Carl Malamud of Public.Resource.org to discuss Law.gov and Malamud’s idea for a national inventory of legal materials. The inventory would include legal materials from all three branches of government. Mary Alice volunteered our working groups to lead the ambitious effort to contribute to the groundbreaking national inventory. AALL would use this data to update AALL’s 2003 “State-by-State Report on Permanent Public Access to Electronic Government Information and the 2007 “State-by-State Report on Authentication of Online Legal Resourcesand 2009-2010 updates, which revealed that a significant number of state online legal resources are considered to be “official” but that few are authenticating. It would also help the Law Library of Congress, which owns the Law.gov domain name, with their own ambitious projects.

Erika Wayne and Paul Lomio at Stanford University’s Robert Crown Law Library developed a prototype for the national inventory that included nearly 30 questions related to scope, copyright, cost to access, and other use restrictions. They worked with the California State Working Group and the Northern California Association of Law Libraries to populate the inventory with impressive speed, adding most titles in about two months.

AALL’s Government Relations Office staff then expanded the California prototype to include questions related to digital authentication, preservation, and permanent public access. Our volunteers used the following definition of “authentication” provided by the Government Printing Office:

An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator.

Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.

An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be.

The “Principles and Core Values Concerning Public Information on Government Websites,” drafted by AALL’s Access to Electronic Legal Information Committee (now the Digital Access to Legal Information Committee) and adopted by the Executive Board in 2007, define AALL’s commitment to equitable, no-fee, permanent public access to authentic online legal information. The principle related to preservation states that:

Information on government Web sites must be preserved by the entity, such as a state library, an archives division, or other agency, within the issuing government that is charged with preservation of government information.

  • Government entities must ensure continued access to all their legal information.
  • Archives of government information must be comprehensive, including all supplements.
  • Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.
  • Governments must plan effective methods and procedures to migrate information to newer technologies.

In addition, AALL’s 2003 “State-By-State Report on Permanent Public Access to Electronic Government Information” defines permanent public access as, “the process by which applicable government information is preserved for current, continuous and future public access.”

Our volunteers used Google Docs to add to the inventory print and electronic legal titles at the state, county, and municipal levels and answer a series of questions about each title. AALL’s Government Relations Office set up a Google Group for volunteers to discuss issues and questions. Several of our state coordinators developed materials to help other working groups, such as Six Easy Steps to Populating Your State’s Inventory by Maine State Working Group coordinator Christine Hepler, How to Put on a Successful Work Day for Your Working Group by Florida State Working Group co-coordinators Jenny Wondracek and Jamie Keller, and Tips for AALL State Working Groups with contributions from many coordinators.

In October 2010, AALL held a very successful webinar on how to populate the inventories. More than 200 AALL and chapter members participated in the webinar, which included Kentucky State Working Group coordinator Emily Janoski-Haehlen, Maryland State Working Group coordinator Joan Bellistri, and Indiana State Working Group coordinator Sarah Glassmeyer as speakers. By early 2011, more than 350 volunteers were contributing to the state inventories.

Initial Findings

Our dedicated volunteers added more than 7,000 titles to the inventory in time for AALL’s June 30, 2011 deadline. AALL recognized our hard-working volunteers at our annual Advocacy Training during AALL’s Annual Meeting in Philadelphia, and celebrated their significant accomplishments. Timothy L. Coggins, 2010-11 Chair of the Digital Access to Legal Information Committee, presented these preliminary findings:

  • Authentication: No state reported new resources that have been authenticated since the 2009-2010 Digital Access to Legal Information Committee survey
  • Official status: Several states have designated at least one legal resource as official, including Arizona, Florida, and Maine
  • Copyright assertions in digital version: Twenty-five states assert copyright on at least one legal resource, including Oklahoma, Pennsylvania, and Rhode Island
  • Costs to access official version: Ten states charge fees to access the official version, including Kansas, Vermont, and Wyoming
  • Preservation and Permanent Public Access: Eighteen states require preservation and permanent public access of at least one legal resource, including Tennessee, Virginia, and Washington

Analyzing and Using the Data

In July 2011, AALL’s Digital Access to Legal Information Committee formed a subcommittee that is charged with reviewing the national inventory data collected by the state working groups. The subcommittee includes Elaine Apostola (Maine State Law and Legislative Reference Library), A. Hays Butler (Rutgers University Law School Library), Sarah Gotschall (University of Arizona Rogers College of Law Library), and Anita Postyn (Richmond Supreme Court Library). Subcommittee members have been reviewing the raw data as entered by the working group volunteers in their state inventories. They will soon focus their attention on developing a report that will also act as an updated version of AALL’s State-by-State Report on Authentication of Online Legal Resources.

The report, to be issued later this year, will once again support what law librarians have known for years: there are widespread issues with access to legal resources and there is an imminent need to prevent a trend of eliminating print resources in favor of electronic resources without the proper safeguards in place. It will also include information on: the official status of legal resources; whether states are providing for authentication, permanent public access, and/or preservation of online legal resources; any use restrictions or copyright claims by the state; and whether a universal (public domain) citation format has been adopted by any courts in the state.

In addition to providing valuable information to the Law Library of Congress and related Law.gov projects, this information has already been helpful to various groups as they proceed to advocate for no-fee, permanent public access to government information. The data has already been useful to advocates of the Uniform Electronic Legal Material Act and will continue to be valuable to those seeking introduction and enactment in their states. The inventory has been used as a starting point for organizations that are beginning digitization projects of their state legal materials. The universal citation data will be used to track the progress of courts recognizing the value of citing official online legal materials through adopting a public domain citation system. Many state working group coordinators have also shared data with their judiciaries and legislatures to help expose the need for taking steps to protect our state legal materials.

The Next Steps: Federal Inventory

In December 2010, we launched the second phase of this project, the Federal Inventory. The Federal Inventory will include:

  • Legal research materials
  • Information authored or created by agencies
  • Resources that are publicly accessible

Our goals are the same as with the state inventories: to identify and answer questions about print and electronic legal materials from all three branches of government. Volunteers from Federal agencies and the courts are already adding information such as decisions, reports and digests (Executive); court opinions, court rules, and Supreme Court briefs (Judicial); and bills and resolutions, the Constitution, and Statutes at Large (Legislative). Emily Carr, Senior Legal Research Specialist at the Law Library of Congress, and Judy Gaskell, retired Librarian of the Supreme Court, are coordinating this project.

Thanks to the contributions of an army of AALL and chapter volunteers, the national inventory of legal materials is nearly complete. Keep an eye on AALL's website for more information as our volunteers complete the Federal Inventory, analyze the data, and promote the findings to Federal, state and local officials.

Tina S. Ching is the Electronic Services Librarian at Seattle University School of Law. She is the 2011-12 Chair of the AALL Digital Access to Legal Information Committee.

 

Emily Feltren is Director of Government Relations for the American Association of Law Libraries.

 
 

[Editor's Note: For topic-related VoxPopuLII posts please see: Barbara Bintliff, The Uniform Electronic Legal Material Act Is Ready for Legislative Action; Jason Eiseman, Time to Turn the Page on Print Legal Information; John Joergensen, Authentication of Digital Repositories.]

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.

The Civic Need

Civic morale in the U.S. is punishingly low and bleeding out. When it comes to recent public approval of the U.S. Congress, we're talking imminent negative territory, if such were possible. Gallows chuckles were shared over an October 2011 NYT/CBS poll that found approval of the U.S. Congress down to 9% -- lower than, yes, communism, the British Petroleum company during the oil spill, and King George III at the time of the American Revolution. The trends are beyond grim: Gallup in November tracked Congress falling to 13% approval, tying an all-time low. For posterity, this is indeed the first branch of the federal government in America's constitutional republic, the one with "the power of the purse", our mostly-millionaire law-makers. Also: the branch whose leadership recently attempted to hole up in an anti-democratic, unaccountable "SuperCommittee" to make historic decisions affecting public policy in secret. Members of Congress are the most fallible, despised elected officials in our representative democracy.

OpenCongress: Responding with open technology

Such was the visceral distrust of government (and apathy about the wider political process, in all its messy necessity) that our non-profit organization, the Participatory Politics Foundation (PPF), sought to combat with our flagship Web application, OpenCongress.org. Launched in 2007, its original motto was: "Bringing you the real story about what's happening in Congress." Our premise, then as today, is that radical transparency in government will increase public accountability, reduce systemic corruption in government, and result in better legislative outcomes. We believe free and open-source technology can push forward and serve a growing role in a much more deliberative democratic process -- with an eye towards comprehensive electoral reform and increased voter participation. The technology buffet includes, in part, the following: software (in the code that powers OpenCongress); Web applications (like the user-friendly OpenCongress pages and engagement tools); mobile (booming, of course, globally); libre data and open standards; copyleft licensing; and more. One articulation of our goal is to encourage government, as the primary source, to comply exhaustively with the community-generated Principles of Open Government Data (which, it should be noted, are continually being revised and amended by #opengov advocates, as one would expect in a healthy, dynamic, and responsive community of watchdogs with itchy social sharing fingers). Another articulation of our goal, put reductively: we'll know we're doing better when voter participation rates rise in the U.S. from our current ballpark of 48% to levels comparable to those of other advanced democracies. Indeed, there has been a very strong and positive public demand for user-friendly Web interfaces and open data access to official government information. Since its launch, OpenCongress has grown to become the most-visited not-for-profit government transparency site in the U.S. (and possibly the world), with over one million visits per month, hundreds of thousands of users, and millions of automated data requests filled every week.

OpenGovernment.org: Opening up state legislatures

The U.S. Congress, unfortunately, remains insistently closed-off from the taxpaying public -- living, breathing people and interested constituent communities -- in its data inputs and outputs, while public approval keeps falling (for a variety of reasons, more than can be gestured towards here). This discouraging sentiment might be familiar to you -- even cliché -- if you're an avid consumer of political news media, political blogs, and social media. But what's happening in your state legislature? What bills in your state House or Senate chambers are affecting issues you care about? What are special interests saying about them, and how are campaign contributions influencing them? Even political junkies might not have conversational knowledge of key votes in state legislatures, which -- if I may be reductive -- take all the legislative arcane-ness of the federal Congress and boil it down to an even more restrictive group of state capitol "insiders" who really know the landscape. A June 2011 study by the University of Buffalo PoliSci Department found that, as summarized on Ballotpedia :

First, the American mass public seems to know little about their state governments. In a survey of Ohio, Patterson, Ripley, and Quinlan (1992) found that 72 percent of respondents could not name their state legislator. More recently, an NCSL-sponsored survey found that only 33 percent of respondents over 26 years old could correctly identify even the party that controlled their state legislature.

Further, state legislative elections are rarely competitive, and frequently feature only one major party candidate on the ballot. In the 2010 elections, 32.7 percent of districts had only one major party candidate running. (Ballotpedia 2010) In 18 of the 46 states holding legislative elections in 2010, over 40 percent of seats faced no major-party challenge, and in only ten states was the proportion of uncontested seats lower than 20 percent. In such an environment, the ability to shirk with limited consequences seems clear."[1]

To open up state government, PPF created OpenGovernment.org as a joint project with the non-profit Sunlight Foundation and the community-driven Open States Project (of Sunlight Labs). Based on the proven OpenCongress model of transparency, OpenGovernment combines official government information with news and blog coverage, social media mentions, campaign contribution data, public discussion forums, and a suite of free engagement tools. The result, in short, is the most user-friendly page anywhere on the Web for accessing bill information at the state level. The site, launched in a public beta on January 18th, 2011, currently contains information for six U.S. state legislatures: California, Louisiana, Maryland, Minnesota, Texas, and Wisconsin. In March 2011, OpenGovernment was named a semi-finalist in the Accelerator Contest at South by Southwest Interactive conference.

Skimming a state homepage -- for example, California -- gives a good overview of the site's offerings: every bill, legislator, vote, and committee, with as much full bill text as is technically available; plus issues, campaign contributions, key vote analysis, special interest group positions, and a raft of social wisdom. A bill page -- for example, Wisconsin's major freedom of association bill, SB 11 -- shows how it all comes together in a highly user-friendly interface and, we hope, the best-online user experience. Users can track, share, and comment on legislation, and then contact their elected officials over email directly from OpenGovernment pages. OpenGovernment remains in active open-source development. Our developer hub has more information. See also our wish-list and how anyone can help us grow, as we seek to roll out to all 50 U.S. state legislatures before the November 2012 elections.

Opening up state legislative data: The benefits

To make the value proposition for researchers explicit, I believe fundamentally there is clear benefit in having a go-to Web resource to access official, cited information about any and all legislative objects in a given state legislature (as there is with OpenCongress and the U.S. Congress). It's desirable for researchers to know they have a permalink of easy-to-skim info for bills, votes, and more on OpenGovernment -- as opposed to clunky, outmoded official state legislative websites (screenshots of which can be found in our launch blog post, if you're brave enough to bear them). Full bill text is, of course vital for citing, as is someday having fully-transparent version-control by legislative assistants and lobbyists and members themselves. For now, the site's simple abilities to search legislation, sort by "most-viewed," sort by date, sort by "most-in-the-news," etc., all offer a highly contemporary user-experience, like those found by citizens elsewhere on the Web (e.g., as online consumers or on social media services). Our open API and code and data repositories ensure that researchers and outside developers (e.g., data specialists) have bulk access to the data we aggregate, in order to remix and sift through for discoveries and insights. Bloggers and journalists can use OpenGovernment (OG) in their political coverage, just as OpenCongress (OC) continues to be frequently cited by major media sites and blog communities. Issue advocates and citizen watchdogs can use OG to find, track, and contact their state legislators, soon with free online organizing features like Contact-Congress on OC. OpenGovernment's launch was covered by Alex Howard of O'Reilly Radar, the National Council of State Legislatures (The Thicket blog), and Governing, with notes as well from many of PPF and Sunlight's #opengov #nonprofit allies, and later on by Knight Foundation, Unmatched Style, and dozens of smaller state-based political blogs.

The technology that powers OpenGovernment.org

The technology behind OpenGovernment was assembled by PPF's former Director of Technology (and still good friend-of-PPF, following his amicable transition to personal projects) Carl Tashian. In designing it, Carl and I were driven first by a desire to ensure the code was not only relatively-remixable but also as modular as possible. Remixable, because we hoped and expect that other open-source versions of OpenGovernment will spring up, creating (apologies for the cliché, but it's one I am loathe to relinquish, as it's really the richest, most apt description of a desirable state of affairs) a diverse ecosystem of government watchdog sites for state legislatures. Open data and user-focused Web design can bring meaningful public accountability not only to state legislatures, but also to the executive and judicial branches of state government as well. PPF seeks non-profit funding support to bring OpenGovernment down to the municipal level -- county, city, and local town councils, as hyper-local and close to the neighborhood block as possible -- and up to foreign countries and international institutions like the United Nations. In theory, any government entity with official documents and elected official roles is a candidate for a custom version of OpenGovernment facing the public on the open Web -- even those without fully-open data sets, which of course, most countries don't have. But by making OpenGovernment as modular as possible, we aimed to ensure that the site could work with a variety of data inputs and formats. The software is designed to handle a best-case data stream -- an API of legislative info -- or less-than-best, such as XML feeds, HTML scraping, or even a static set of uploaded documents and spreadsheets.

Speaking of software, OpenGovernment is powered by GovKit, an open-source Ruby gem for aggregating and displaying open government APIs from around the Web. Diagrammed here, they are summarized here with a few notes:

  • Open States - a RESTful API of official government data, e.g. bills, votes, legislators, committees, and more. This data stream forms the backbone of OpenGovernment. A significantly volunteer effort coordinated by the talented and dedicated team at Sunlight Labs, Open States fulfills a gigantic public need for standardized data about state legislation -- largely by the time-intensive process of scraping HTML from unstandardized existing official government websites. Really remarkable and precedent-setting public-interest work, the updates are by James Turk on the Labs Blog. Data received daily in .json format, and wherever possible, bill text is displayed in the smooth open-source DocumentCloud text viewer (e.g., WI SB11).
  • OpenCongress - API for federal bills, votes, people, and news and blog coverage. OpenGovernment is primarily focused on finding and tracking state bills and legislators, but one of our premises in designing the public resource was that the vast majority of users would first need to look up their elected officials by street address. (Can you name your state legislators with confidence offhand? I couldn't before developing OpenCongress in 2007.) So since users were likely to take that action, we used our sibling site OpenCongress to find and display federal legislators underneath state ones (e.g., CA zip 94110).
  • Google News, Google Blog Search, Bing API - we use these methods to aggregate news and blog coverage of bills and members, as on OpenCongress: searching for specific search terms and thereby assembling pages that allow a user to skim down recent mentions of a bill (along with headlines and sources) without straying far from OpenGovernment. One key insight of OpenCongress was that lists of bills "most in the news" and "most-on-blogs" can point users towards what's likely most-pressing or most-discussed or most-interesting to them, as search engine or even intra-site keyword searches on, say, "climate change bill" don't always return most-relevant results, even when lightly editorially curated for SEO. On pages of news results for individual bills (e.g., CA SB 9) or members (e.g., WI Sen. Tim Carpenter), it's certainly useful to get a sense of the latest news by skimming down aggregated headlines, even given known issues with bringing in similarly titled bills (e.g., SB 9 in Texas, not California) or sports statistics or spam. Future enhancements to OpenGovernment will do more to highlight trusted news sources from open data standards -- a variety of services like NewsTrust exist on this front, and there's no shortage of commercial partnerships possible (or via Facebook Connect and other closed social media), but PPF's focus is on mitigating the "filter bubble" and staying in play on the open Web.
  • Transparency Data API (by Sunlight Labs) to bring in campaign contribution data from FollowTheMoney. If Open States data is the backbone of OpenGovernment, this money-in-politics data is its heart. PPF's work is first and foremost motivated by a desire to work in the public interest to mitigate the harmful effects of systemic corruption at every level of government, from the U.S. Congress on down. (See, e.g., Lessig, Rootstrikers, innumerable academic studies and news investigations into the biased outcomes of a system where, for example, federal members of Congress spend between 30 and 70 percent of their time fundraising instead of connecting with constituents.) Part of this is vocally endorsing comprehensive electoral reforms such as non-partisan redistricting, right-to-vote legal frameworks, score voting, parliamentary representation, and the Fair Elections Now Act for full public financing of elections. But the necessary first step is radical transparency of campaign contributions by special interests to elected officials, accompanied by real-time financial disclosure, stronger ethics laws, aggressive oversight, and regulation to stop the revolving door with lobbyists and corporations that results in oligarchical elites and a captured government. Hence "The Money Trail" on OpenGovernment, e.g., for Texas, is a vital resource for connecting bills, votes, and donations. The primary source for money figures is our much-appreciated and detail-oriented non-profit partners at the National Institute on Money in State Politics, who receive data in either electronic or paper files from the state disclosure agencies with which candidates must file their campaign finance reports. Future enhancements to OG will integrate with MAPLight's unique analysis of industries supporting and opposing individual bills with their donations. MAPLight has data for CA and WI we're looking to bring in, with more to come.
  • Project VoteSmart's API brings in special-interest group ratings for state government and allows OpenGovernment to highlight the most-impactful legislation in each state, marking their non-partisan "key vote" bills (e.g., for TX). VoteSmart does remarkable legislative analysis that neatly ties in bills to issue areas, but VoteSmart doesn't have a built-in money-in-politics tie-in on their pages, or tools to track and share legislation. (This is just another way in which OpenGovernment, by aggregating the best available data in a more user-focused design, adds value, we hope, in an open-source Web app, about which more below.) Project VoteSmart's work is hugely valuable, but the data is again ornery -- special interest group ratings are frequently sparse and vary in scale, and are therefore difficult to accurately summarize or average -- so for members, where applicable, we show a total of the number of ratings in each category (e.g., for TX Sen. Dan Patrick) and link to a fuller description.
  • Wikipedia - OG first attempts to match on a legislator's full name to a bio page on Wikipedia, with largely good but occasionally false-positive results. Of course many politicians go by nicknames, so this is a straightforward enhancement we'll make once we can prioritize it with our available resources. See, e.g., TX Sen. Joan Huffman on OG, and her bio on Wikipedia.
  • Twitter - OG has first-pass implementation of bringing in mentions of a state hashtag and bill number, e.g., #txbill #sb7, and for members, state name and legislator name, e.g., Texas Joan Huffman. This is another relatively straightforward engineering enhancement that we can make more responsive and more accurate with additional resources -- for example, bringing in more accurate mentions and highlighting ones made by influential publishers on social media. Spending our time working within walled gardens to capture mentions of key votes isn't inherently pleasant, but bringing out vital chatter onto the open Web and making it available via our open API will be worth the time and investment.
  • Miro Community, free and open-source software from PPF's sibling non-profit the Participatory Culture Foundation (PCF), makes it possible to crowdsource streaming online video about state legislatures (e.g., CA).

The OpenGovernment.org Web app is free, libre, and written in open-source Ruby on Rails code (developer hub). Like OpenCongress, the site is not-for-profit, non-commercial, promotes #opengovdata, open standards, and offers an open API, with volunteer contributions and remixes welcome and encouraged. Two features: most pages on the site are available for query via JSON and JSONP; and we offer free lookup of federal and state elected officials by latitude / longitude by URL. PostgreSQL and PostGIS power the back-end -- we've seen with OpenCongress that the database of aggregated info can become huge, so laying a solid foundation for this was relevant in our early steps. The app uses the terrific open-source GeoServer to display vote maps -- many enhancements possible there -- and Jammit for asset packaging. For more technical details, see this enjoyable Changelog podcast w/ Carl from February 2011.

Web design on this beta OG Web app is by PPF and PCF's former designer (and still good friend after an amicable parting) Morgan Knutson, now a designer with Google. As product manager, my goal was creating a user interface that -- like the code base -- would be as modular as possible. Lots of placeholder notes remain throughout the beta version pointing to areas of future enhancement that we can pursue with more resources and open-source volunteer help. Many of the engagement features of the site -- from tracking to commenting to social sharing -- were summarized brilliantly by Rob Richards in this Slaw.ca interview with me from July 29th, 2011 -- viz., walking users up the "chain of engagement." It's a terrific, much-appreciated introduction to the civic-engagement goals of our organization and our beliefs regarding how well-designed web pages can do more than one might think to improve a real-life community in the near-term.

More on open government data and online civic engagement

To briefly run through more academic or data-driven research on the public benefits of #opengovdata and open-source Web tools for civic engagement (not intended to be comprehensive, of course, and with more caveats than I could fit here) :

OpenGovernment.org: Some metrics

To wrap up this summary of OpenGovernment in 2011, then, I'll summarize some of the metrics we've seen on Google Analytics -- with limited outreach and no paid advertising or commercial partnerships, OpenGovernment beta with its six states will have received over half a million pageviews in its first year of existence. As with OpenCongress, by far the most-viewed content as of now is bills, found via search engines by their official number, which send approximately two-thirds of all traffic (and of that, Google alone sends over half). Hot bills in Texas and the WI organizing bill constitute three of OG's top ten most-viewed pages sitewide. After hearing about a firearms bill in the news or from a neighbor, for example, users type "texas bill 321" or "sb 321" into Google and end up on OG, where they're able to skim the bill's news coverage, view the campaign contributions (for example) and interest group ratings (for example) of its authors and sponsors, and notify their legislators of their opinions by finding and writing their elected officials.

OpenGovernment.org: Next steps, and How you can help

In addition to rolling out to all 50 U.S. states and launching pilot projects in municipal areas, one of our main goals for OpenGovernment is integration with the free organizing features we launched this past summer on OpenCongress version 3. Enabling OG users to email-their-state-reps directly from bill pages will significantly increase the amount of publicly transparent, linkable, query-able constituent communication on the open Web. Allowing issue-advocacy organizations and political blog communities to create campaigns as part of future MyOG Groups will coordinate whipping of state legislators for a more continually-connected civic experience. And as always, tweaks to the beta site's user interface will allow us to highlight the best-available information about how money affects politics and votes in state legislatures, to fight systemic corruption, and to bring about a cleaner and more trustworthy democratic process. Help us grow and contact us anytime with questions or feedback. As a public charity, PPF aspires to be grow to become more akin to the Wikimedia Foundation (behind Wikipedia), Mozilla (behind Firefox), and MySociety (behind TheyWorkForYou, for the UK Parliament, and other projects). We're working towards a future where staying in touch with what's happening in state capitols is just as easy and as immediately rewarding as, for example, seeing photos from friends on Facebook, sharing a joke on Twitter, or loading a movie on Netflix.com.

David MooreDavid Moore is the Executive Director of the Participatory Politics Foundation, a non-profit organization using technology for civic engagement. He lives in Brooklyn, NY.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.

A Copyright Will Protect You From Pirates - A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

A Copyright Will Protect You From Pirates - by Ioan Sameli - http://bit.ly/lJrePv. Licensed under a Creative Commons by-sa 2.0 license

In 2008, the State of Oregon sent a takedown notice to Tim Stanley, asking him to remove copyrighted material from Justia, Stanley's pioneering free law website. Such takedown notices are relatively common in the world of Napster, YouTube, BitTorrent, and LimeWire.  However, Stanley, the founder of FindLaw, and later Justia, wasn’t publishing music or video.  He was publishing the Oregon Revised Statutes on his website, and the State of Oregon claimed that Justia’s free version of the statutes was infringing its copyright.

That’s right: the State of Oregon claimed a copyright in its statutes, and it wanted to enforce that copyright against a company publishing them for free online.

The conflict was resolved amicably, with the state inviting Tim and Public.Resource.org’s Carl Malamud to Salem for a public hearing, in which the state decided to revoke its takedown demand. But the compromise was an uneasy one.  Oregon did not disclaim copyright in the statutes -- it merely agreed not to enforce its copyright claim against Justia and Public.Resource.org.  This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.

This may seem like an isolated incident -- perhaps the work of a renegade legislative staff member with an ambitious view of copyright law.  But this incident isn’t isolated.  LexisNexis believes that it owns the Georgia Code.  And the statutes of Colorado, Wyoming, and Mississippi.  The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.

Copyright in public law means that a state or a publisher could restrict fundamental rights in law.  Things like copying -- even citing the law in a brief -- could be considered an infringing use.  This makes lawyers, journalists, the public, and even judges into pirates when they quote from statutes.  It subjects innovators, entrepreneurs, and other publishers, who could introduce competition in legal publishing, to potential copyright liability.  It chills innovation and blocks the widespread publication of the law.

And although statutes are clearly in the public domain, they are one of the last bastions of closed-source content on the Internet. A combination of state budget cuts, our antiquated process for codifying the law, and aggressive contract terms from publishers have conspired to create private copyright claims in public law.

How did we get to this state of affairs?  How can any commercial publisher believe that it "owns" our public law?  Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable?  And what can we do about it?

I'm tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn't protect public statutes, legislatures can't grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It's time for publishers, legislatures, and innovators to open state statutes.

How Can a Publisher Copyright Statutes It Didn’t Write?

At the outset, it seems crazy to say that publishers can copyright the law at all.  After all, legislators draft, debate, amend, and pass the law, and governors sign bills into law.  Most people consider statutes to be written by the people, since they are written on the people’s behalf by their elected representatives.

Publishers don’t write the law.  So how can they claim copyright in it?

Raw bills signed into law by governors aren’t the same thing as the codes that appear in bound volumes on the shelves. Statutes and codes are organized into outlines, with similar topics bunched together into titles, chapters, and sections. So, for example, a state's election laws might all appear within the same title in the state code.  This “codification” process is sometimes dictated in the bill itself (especially when the bill amends an existing statute on the books), but often the codification process is left up to editors after the fact.

In addition, most codified statutes have headlines (called “catchlines” in the art) at the top of each section, and these don’t appear in the bill versions of statutes -- they are later added by editors.

Codifiers and publishers add varying degrees of editorial enhancements to statutes, although many of these enhancements are pretty mechanical.  Hyperlinks between statute sections or to cases, or annotations showing where statutes have been cited, are good examples of additions that are more mechanical than editorial.

Finally, in the codification process, editors will occasionally need to resolve conflicts between a recently passed law and the rest of the code section where the law will be placed.  For example, some statutory titles have definitions that apply to all of the code sections beneath.  When a new law with conflicting definitions is codified in that section, an editor must resolve the conflicts (sometimes requiring commercial publishers to change an enacted statute, if you can believe that).

For most states, this codification process is simply a part of the legislature’s job.  They employ a team of editors in an office of codification counsel, and the legislature codifies passed bills into the state’s statutory code.

The codification process is difficult, time consuming, and expensive.  Many states (and Congress) employ teams of lawyers and legislative experts who organize and annotate their enacted statutes into codified volumes for publication.  However, some states outsource the editorial operations to legal publishers such as LexisNexis and West Publishing Co. (wholly-owned subsidiaries of the Anglo-Dutch publishing giant Reed Elsevier and Canadian mega-conglomerate Thomson Reuters, respectively).  And, apparently, publishers require in their contracts that the state grant to the publishers all of the intellectual property in the state codes that result.

Thus we have commercial publishers who claim a copyright in state statutes.

Is a Private Copyright in State Statutes Constitutional / Enforceable?

That briefly explains why a commercial publisher is even in a position to make a claim of intellectual property in statutes.  But the idea of state-owned (or private, foreign-owned) copyrights in public law is so counterintuitive, we should examine whether the claim is defensible.  Is copyright in state statutes enforceable?

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

Crown of King Cedric Rolfsson of An Tir by Jeff Martin / Godfrey von Rheinfels - http://bit.ly/lg40hb - Licensed under a Creative Commons CC BY-NC 2.0 License

The new crown copyright?

Historians would recognize this kind of claim to copyright in state law.  Before the American Revolution, the common law recognized the King’s (or Queen’s) right to copyright in a nation’s laws – the term was called “crown copyright.”  Any attempts to copy or quote the law must be authorized by the sovereign.  Although crown copyright still exists in the world, the United States for more than 200 years has stood for the rebellious idea that its law is owned by the people, and it may be used freely by them without the consent of the government.

The Founding Fathers considered copyright sufficiently important to address it in the Constitution's Article I, Section 8 grant of powers to Congress: The Congress shall have the power “to Promote the Progress of Science... by securing for limited Times to Authors... the exclusive Right to their... Writings.”

It was clear enough that copyright was the purview of the people’s representatives in Congress, not of the executive. Congress removed all doubt in enacting 17 U.S.C. § 105, which establishes that works of the federal government (not just statutes, but all works) are not protectable by copyright -- the federal government may not restrict the power of the people freely to use government works.

American copyright law is the opposite of crown copyright. Not only does the President not have a copyright in government works, but the entire federal government is barred from asserting copyright protection for government works.

Although the U.S. Code has little to say about copyright claims that states might assert in state codes, early American courts addressed the question several times, thereby establishing the legal framework for evaluating these claims.

Courts: State Codes Belong to the People

Courts have held time and time again that statutes may not be copyrighted, either by states or by private publishers. Some of our oldest copyright cases address issues of legal information; these cases generally held that the law is uncopyrightable.  See generally L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989), and cases cited therein.

First, the Constitution limits the protection of copyright to "authors," and courts have held that, in copyright law, government actors (whether state or federal) cannot be considered the authors of public law.

In Wheaton v. Peters, one of the reporters of early American Supreme Court opinions, Richard Peters, Jr., republished without permission twelve volumes of the reports of his predecessor Henry Wheaton. 33 U.S. (8 Pet.) 591 (1834).  In its first opinion on copyright, the Court held that Wheaton could have no copyright in the opinions of the U.S. Supreme Court. 33 U.S. at 668 ("The Court are unanimously of the opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.")

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

Copyright Criminal by Alec Couros: http://bit.ly/kpbOYu - Licensed Under a Creative Commons CC BY-NC-SA 2.0 License

The Supreme Court in Banks v. Manchester held that a publisher of Ohio Supreme Court opinions could not be liable in copyright, because neither the previous publisher nor the court could be considered an author under the Copyright Act of 1873. 128 U.S. 244 (1888) ("Judges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.  The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .")

This rationale applies with even more force to legislatures, where statutes are written not by individual judges, but by the people's elected representatives.  If copyright law doesn't consider judges to be authors, it certainly won't consider a representative legislature to be one.

Second, courts have consistently held that citizens have a Constitutional due process right to have access to the laws that govern them. Because copyrights in state law limit that access, courts have time and again resolved the conflict by holding that state statutes may not be copyrighted.  See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866) (publisher can't copyright state statutes, even if state purports to give exclusive publishing rights); Howell v. Miller, 91 F. 129 (6th Cir. 1898) ("no one can obtain the exclusive right to publish the laws of a state") (Harlan, J., sitting by designation); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (Mass. 1886) ("Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.")

State legislatures cannot claim copyright to their statutes, because legislatures are not considered authors for the purposes of copyright law, and because the public's due process rights to access the law serve as a limit on the copyrightability of state statutes.

Courts: Private Publishers Face Limited Copyright for Even Their Own Work

Even where they add material to public codes, publishers' copyright claims in that work are limited by the Copyright Clause of the Constitution and by copyright provisions in the U.S. Code.

The Copyright Clause requires that works involve some modicum of creativity, so purely mechanical operations such as adding page numbers or numbers in an outline are not copyrightable. Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991). The publisher of a treatise about state statutes could claim copyright protection, but a publisher could not, for example, claim copyright in mechanical operations such as adding the next number in sequence to a codification, or collecting cases that cite to a section of the code. See also Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection).

Further, when legislatures subsequently sign the original works of publishers into law, the authored works pass into the public domain.  See Building Officials & Code Administrators Intl., Inc. v. Code Tech., Inc.., 628 F.2d 730 (1st Cir. 1980) ("BOCA") (model code authored by private organization entered public domain when adopted by the State of Massachusetts); Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002) (once the government takes action and passes the model code into law, “there is no reason to believe that state or local laws are copyrightable.”).

Finally, the act of organizing new laws into the outline format of the existing code probably deserves very little copyright protection.  Where a legislature amends a particular code section, the publisher's act of processing the amendment is not creative enough to justify copyright protection under Feist: The process of placing a new law where it belongs in an existing code is often either so straightforward or so arbitrary as not to qualify as a creative act.

How Copyright Law is Applied to State Codes

Based on this discussion of copyright law, we can evaluate the copyright claims that publishers would likely make about state statutes.  The following seems crystal clear:

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

Law Books by Mr. T in DC: http://bit.ly/uhkyk - Licensed under a Creative Commons CC BY-ND 2.0 License

1. Federal statutes (and all federal materials, really) are uncopyrightable, period. Congress has prescribed this by law, and in any event, the U.S. Code is codified by the federal Office of Law Revision Counsel, not by a private publisher.

2. For state statutes, the underlying statutes themselves are almost certainly uncopyrightable. Courts consider them to have been written (constructively) by the people, and due process requires that people have unimpeded access to the laws that govern them.

Although courts haven't addressed the examples below, the caselaw suggests that private publishers can't claim much copyright protection in state codes:

Where public employees of states codify, organize, annotate, or write catchlines, is the resulting compilation copyrightable by the state? Courts might hold that the organization of statutes and catchlines meet the minimum constitutional requirements of creativity outlined in Feist. (Annotations, on the other hand, which are effectively lists of citing articles and cases, are uncopyrightable “mere facts”).

However, the same due process claims that protect the public’s right to the underlying statutes also protect their right to the codified statutes, especially if the codified version is the state’s “official” version of the statutes. Moreover, states and state employees are agents of the people, and courts are likely to hold that the work product of states and state employees is owned collectively by the people in the public domain. The official code, when codified by the state, is uncopyrightable.

Where states hire a publishing company to codify their enacted statutes, is the resulting compilation copyrightable? When a state outsources its work to private publishers, the publishers are agents of the state. Under agency law, publishers could have no more claim to copyright than the contracting agent could.  So if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher.

The definitive copyright treatise Nimmer on Copyright adds that contract law is an important part of the analysis: Nimmer points out that that if the state’s publishing contract classifies the publisher’s codification as a “work for hire,” then the state owns the resulting intellectual property on behalf of its citizens. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §§ 5.12 n.29 and 5.13[B][2]. Where states specify in their contracts that contractors are performing the work of the state, are agents of the state, or are performing a work for hire, courts would be unlikely to enforce copyrights for the agent to which the principal is not entitled.

Could a publisher claim copyright in its organization of a state code? Although copyright law protects the "compilation" of otherwise uncopyrightable elements (the classic example being an anthology of poetry, in which the poems themselves have passed into the public domain, but in which the author can claim copyright for their selection and arrangement) -- publishers of state codes have much less discretion in their work than do publishers of other kinds of compilations.  Publishers of state codes may not, for example, decide which enacted laws to include in the code.  There is no element of selection.  And the code has a pre-established organizational structure that the publisher must follow in the codification process.  The placement of a passed law in the code section to which it most closely relates may require skill, but it is not creative for purposes of the copyright law.

In short, courts should protect original, creative editorial work, such as articles about the law written by an author.  But they should not give private publishers copyright protection where the publishers are performing functions necessary for codifying the official version of the code (such as organizing by topic or writing catchlines). Adoption of this view would protect new creative works while vindicating citizens' important due process rights in public domain law.

Policy: Should We Root for Publishers?

Printing Press at the GPO by Ed Walters - Licensed under a Creative Commons CC BY-NC 2.0 License

Printing Press at the GPO by Ed Walters - Creative Commons CC BY-NC 2.0 License

Commercial legal publishers would likely argue that copyright should protect their creative work. Writing catchlines and organizing codes require expertise, and are expensive.  If anyone could copy the completed work, they might argue, publishers would never be able to afford to employ editors, and so would never be able to afford to pursue this line of business.  Legal publishing is a for-profit enterprise, and companies should be allowed to recoup their costs, even for state work.

However, when the work is on public law, the analysis must be different.  First, there are important policy implications to limiting access to statutes.  Copyright is not the only way for publishers to be rewarded for their labors.  And if courts choose not to enforce private copyright in public law, publishers could simply charge each state a fair rate to compensate them for their efforts.

Second, if publishers are using state contracts to create proprietary codes, the publishers are effectively receiving corporate welfare, a taxpayer-funded subsidy to create private works. Especially in times of limited budgets, states should be wary of spending taxpayer dollars in this way.  Taxes are well spent to create public infrastructure, such as highways (or statutes).  But taxpayers would revolt if states financed toll roads owned by foreign transportation conglomerates.  Public financing of copyrighted statutes is no different.

How States Can Take Back their Codes

Just this week, the Uniform Law Commission passed the Uniform Electronic Legal Materials Act, designed as a blueprint for state laws that would require preservation and authentication of state statutes published online, while making those statutes permanently available to the public.  The Act would have states designate a state employee or agency, not a private publisher, to serve as an "official publisher" of statutes for purposes of authenticating and preserving state codes.  To preserve the public's permanent access under the Act, states should take whatever steps are necessary to restore statutes to the public domain. The Act thus points to the central role that the government, not private publishers, must play in the stewardship of our state statutes.

There are some straightforward ways in which states could clear up any confusion about the copyrightability of their state statutes.

States could hire their own codification counsel, do the work of statutory codification in-house, and make clear that the end result is in the public domain.  To the extent that private publishers sell proprietary versions of the code, those publishers may use the public version of the code as a starting point, and copyright their improvements. This approach is recommended as a best practice, but it may not be feasible for all states in difficult economic times.

Separately, to preserve statutes in the public domain, a state could contract with a commercial publisher for private codification services, but specify clearly in its contract that the resulting code is a work made for hire, and, consequently, is in the public domain.  In this case, it would make sense for the state to require the publisher to deliver a code free of proprietary commercial enhancements so that the work may pass completely into the public domain.  If publishers wish to add proprietary content, they may use the public code as their starting point.  But such proprietary content would not be subsidized by tax dollars.

Finally, legislatures can simply enact the codified statutes.  Congress does this with the codified U.S. Code, effectively blessing the work of its Office of Law Revision Counsel in codifying statutes.  If a legislature merely enacted its code by voice vote, the Code would pass into the public domain.

Conclusion

Commercial publishers perform an important role in codifying state statutes.  Their expertise and skill are vital to protecting our rule of law, which is rooted in an informed citizenry. However, statutes are by definition in the public domain, and rightly so.  Efforts to own our public law, by American-owned or foreign-owned publishers, violate both our understanding of copyright and our due process rights to access the laws that govern us. When states work together with private publishers to codify their official statutes, neither law nor policy suggests that the publishers may own the resulting codes.

Ed WaltersEd Walters is the CEO of Fastcase. Although nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much. Views expressed here are his own.

VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.