Coniferous Species and Free Access to Law

It’s almost Christmas, and many of our thoughts are turning to time off, eggnog, spruce trees, Dickens stories, and the law. 

Wait, what? 

As we do our work at LII, many of our most fruitful questions fall under the category of “what is the law of where I’m standing right now?” And at this time of year, even for those of us from other traditions, such questions are often along the lines of: “what is the law of this holiday, this ornament, this string of lights, this Christmas tree?” Now, if you’re wondering what’s the point of asking such a question, consider that although most people think of Christmas trees as a festive holiday tradition, for many small businesses, they are, more centrally, a federally regulated agricultural crop. So, if you search the Code of Federal Regulations, you can find a formal definition of a Christmas tree (“any tree of the coniferous species, that is severed or cut from its roots and marketed as a Christmas tree for holiday use”.) You can also find definitions of who counts as a producer, regulations for the establishment of a Christmas tree promotion board, and multiple other things that are far more legally complex than tinsel and tree-top angels.  

It’s not just trees; Christmas comes up in a lot of other places.  It’s a federal holiday, of course, during which the government especially encourages displays of the U.S. flag, but anglers are unwelcome in the Guam National Wildlife Refuge. (Small!) Christmas gifts are exempted from the ban on gifts between federal employees and their supervisors or subordinates. And, although Christmas light sets are not consumer commodities under the Fair Packaging and Labeling Act, Christmas decorations are.  

Christmas also comes up in a variety of far more serious contexts. Religious displays on public property have made their way to the Supreme Court.  Forest management regulations set forth the rules for cutting down trees on federal and state lands.  The Indian Schools Equalization Program provides funds for a round trip home.  Wage and hour laws preserve the status of full-time students over their vacations.  (Again, small) Christmas presents are used as an example of nonrecurring gifts that are exempted from income calculations in financial assistance programs.  

Especially at this time of year, it means a great deal to us that we can help people find and understand where the law meets their circumstances, however common or unusual those circumstances might be. By supporting free access to law, you help people from all walks of life fulfill information needs we can only begin to imagine – to keep their businesses open, their refrigerators stocked, their spirits up. Whether you celebrate Christmas as a religious holiday, enjoy it as time away from work, use it as an opportunity to fill in for those who are celebrating, or have a professional or personal interest in it as a legal matter, we hope you will take a moment in this season to help us continue to provide free access to law to everyone who might need it.  

DONATE NOW

On behalf of all of us at LII, happy holidays, and thank you for your support, 

Sara Frug

Co-Director

Legal Information Institute

Anatomy of a Traffic Spike: When a Spike is Just a Bump

On Thursday August 20, 2020 President Trump said he would send law enforcement officials to polling locations for the Nov. 3, 2020 general election.  But our traffic shows that 18 U.S.C. § 594, the federal statute outlawing voter intimidation, was already on people’s minds.  Beginning on August 13, we saw a brief increase in interest there.  A typical day would bring around 50 viewers to that section of the US Code.  On August 13, that number jumped to 338. While 10 visitors arrived there that day from a Washington Post article, as usual the vast majority (about three-quarters) came straight from search engines, 

Traffic there peaked on August 21—the day after President Trump’s statement—with 805 viewers reading 18 U.S.C. § 594.  By August 25, viewership was back in the double digits.  The graph from Google Analytics looks like this.

We noted the spike in the #Trending channel of our internal Slack, and we made a note to  consider it for this newsletter article.  But what looked like a spike turned out to be just a bump in comparison of what was to come.

Saturday, September 19th marked the start of a triple spike, where the periods in between the peaks matched the traffic from what we had considered a spike back in August.  That day, 1898 people read 18 U.S.C. § 594.  The number went up to 2,685 the next day before beginning to drop back down to 1,415 on Monday–still higher than the peak of the August spike.

Just as traffic returned to a level that matched a “typical” day during the August spike (around 350 visits to the page), a second, even larger spike began.  That spike began on September 30, the day after the first presidential debate.  Over 4,000 people came to the page, probably because of President Trump’s heavily-reported “stand back and stand by” remark during the debate the night before.  While traffic dropped back down from that peak fairly quickly, it  remained at the same levels that constituted a “spike” when we observed it in August.  For example, Thursday October 8 was a relatively “quiet” day for the page in October, with only 446 visits.  But 446 would have been the second-highest daily total in August.   

We saw a third spike to the page corresponding with the confirmation hearings for Judge Amy Coney Barrett.  The hearings began on Monday, October 12th.  The next day, more than 2,000 people read 18 U.S.C. § 594.  That spike lasted all week. Over the weekend of October 18 & 19, more than 1,200 people visited the page, split roughly equally between Saturday and Sunday.  

Here is what all of that looks like, from the before the August bump through Sunday, October 18th:

As you can see from the graph, traffic to 18 U.S.C. § 594 last weekend almost matched what we thought was a spike back in August.  We don’t think we are done seeing interest in this page over the coming weeks. 

Free Legal Research in Action

Dear Reader:
Here’s a new feature in our newsletter where I share my experiences solving actual legal research questions using only online Free Law tools.   We hope this will give you some new insight into what other important and impressive free legal research tools are out there.  It might also perhaps even spark an idea or two about how to use them.  
Best,
Craig
Craig Newton
Co-Director

As you may have read in our Quarterly Report, I recently gave a presentation about the Supreme Court’s 2020 Georgia v. Public.Resource.Org decision.  In that case, the court held that Georgia could not claim copyright for commercially-produced annotations created under the legislature’s supervision and merged with the laws themselves to form the Official Code of Georgia Annotated.  

The central issue in the case was interpreting the Government Edicts Doctrine, a judicially created copyright exception from the 19th century.  Quoting Nash v. Lathrop, a case decided by the Massachusetts Supreme Court in 1886, Chief Justice Roberts explained “The animating principle behind this rule is that no one can own the law.  ‘Every citizen is presumed to know the law,’ and ‘it needs no argument to show . . . that all should have free access’ to its contents.”  

I was struck by the ages of all the case law that the court relied upon as it explained how “no one can own the law” that “we are all presumed to know and understand.”  As I prepared my talk, I wondered if there were more recent relevant cases the court had bypassed in its opinion  (and if so, why).  I knew from reading the decision below from the Eleventh Circuit Court of Appeal (who also ruled in favor of PRO) that there were more recent cases out there denying copyright to similar materials; but, those cases relied not on the logic that citizens must be able to access the law they are presumed to know and instead were based on the notion that citizens in a democracy are the original authors of those laws.  

I wondered why the Supreme Court had found a completely different justification for upholding the 11th Circuit, and I decided to look for other cases that shared the same sentiment expressed in Massachusetts in 1886 (if not exactly those same words) that because every citizen is presumed to know the law, all should have free access to its contents.  

This seemed like a good opportunity to kick the tires on the ROSS Chrome extension, which I had learned about a few months before when the company asked us if they could use examples from our website in their video in the Chrome web store (and clicking on that link will show you that video).  

ROSS’s claims for its Chrome extension are ambitious:  add their extension to Chrome, highlight any text on any website, right click the text, select “Find similar language” from the resulting menu, and ROSS will generate a free list of cases that incorporate the same idea as the text you selected.  And ROSS allows users of the Chrome extension to click into the returned case results for free. 

Okay.  Neat.  Would it work?

Step One:  having downloaded the extension, all I needed to begin was an online version of the Georgia v. PRO opinion.  We have that!  

Step Two:  I found the language I was looking for: “The animating principle behind this rule is that no one can own the law.  ‘Every citizen is presumed to know the law,’ and ‘it needs no argument to show . . . that all should have free access’ to its contents.”  I selected that passage, right-clicked, and selected “Find Similar Language” from the resulting menu.  A new web page from ROSS opened up. 

Step Three:  The very first result was more than I bargained for!  ROSS showed me a new case from the Southern District of New York, decided just one month after Georgia v. PRO.  In International Code Council Inc. v. UpCodes Inc., Judge Marrero of the Southern District of New York denied summary judgment to both parties in a case where the defendant had re-published building codes created by a private standards organization but subsequently incorporated into the official building codes of various jurisdictions.  While ROSS let me read that order for free, having found it through their extension, you can find a Free Law copy here.  Judge Marrero cited the Supreme Court’s recent ruling in his analysis of both whether the private building codes had entered the public domain and if their use by the re-publisher was covered by the copyright doctrine of fair use.  

Though cases like this are one of the next battlegrounds for the Free Law community, I had not been aware of this one.  Score one for ROSS!  

A side note:  I understand that I could have discovered the ICC v. UpCodes case just as easily using a commercial citator like those available through Westlaw or LexisNexis.  The key word there, of course, being “commercial” while the ROSS Chrome extension is completely free.  I would even argue that, FREE NOTWITHSTANDING, the ROSS experience was more useful to me because (1) it only showed me cases that were linked to the Georgia v. PRO in the way that mattered to me (instead of returning a list of everything that cited it and leaving me to find the relevant ones) and (2) one search simultaneously showed me both newer and older cases that expressed a similar sentiment (while a citator, of course, only returns cases that cite and therefore must post-date, the original case in question).  Remember, I started this exercise looking for older cases that Chief Justice Roberts could have cited but did not.

Step Four:  Speaking of older cases SCOTUS did not cite, ROSS also returned a 1980 building codes case called Building Officials & Code Adm. Intern. Inc. v. Code Technology Inc.  You can find a FreeLaw copy of that decision here.  In that case, the First Circuit Court of Appeal vacated at trial court’s injunction that prevented a defendant from re-publishing the Massachusetts building codes, which was largely based on a model code created and owned by the plaintiff.  This was exactly the sort of case that Chief Justice Roberts could have cited but didn’t.  (Why is a question for another day, especially where the 11th Circuit opinion cites and discusses it at some length.)  Score (another) one for ROSS!

Conclusion

I was able to complete my research using entirely Free Law tools–most notably this time the ROSS Chrome extension.  Of course, ROSS would like users of its free Chrome Extension to become so enamored with the results that they subscribe to ROSS’s entire suite of AI-powered legal research tools.  This “Freemium” model, where a for-profit company offers a free product or a free, basic version of its product to attract and entice users who it hopes to eventually convert into paying customers, is neither new nor nefarious.  In the case of ROSS, it’s a great way to begin legal research for a topic that catches your eye from an online news story, blog post, or even a judicial opinion.   

Post-Script

Just for fun, I subsequently used the ROSS Chrome extension to find cases that supported a post on a lawyer’s website without benefit of citation.  Turns out, that’s also a great use for this tool, since it pointed me to a Federal Circuit case that confirmed exactly what he said.  Maybe we’ll do “lawyer blogs” as the next installment in this series!