Tag Archive for: Laws

Appeals Court Says Of Course Georgia’s Laws (Including Annotations) Are Not Protected By Copyright And Free To Share

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Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let’s dig in:

For the past few years, we’ve been covering the fairly insane situation down in Georgia, where they insist that the state’s annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia’s laws are not covered by copyright. But here’s where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to “annotate” the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only “official” version of Georgia’s state laws is in the “annotated” version. If you want to look up the official law of Georgia you are sent to the “Official Code of Georgia Annotated” (OCGA), and it’s hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend “the Official Code of Georgia Annotated,” which certainly suggests that the OCGA — all of it — is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it’s also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court’s analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power — which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows — it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The court admits that there are strong arguments in both directions on this one, but:

… at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

Because of this, the court doesn’t even need to do a fair use analysis. Since there’s no copyright in the OCGA, the fair use question doesn’t even matter, and Malamud (and anyone else) is free to post and access the full OCGA.

There’s a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it’s copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.

We’ll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process — namely bicameralism and presentment — that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

This ruling also strengthens Malamud’s arguments in some of his other legal fights, concerning the concept of “incorporation by reference,” where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason — and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).

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New Laws Will Force Transparency On California Law Enforcement Agencies Starting Next Year

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Starting next year, California law enforcement agencies will finally be subject to a bit more scrutiny and accountability. For years, law enforcement officers have been able to hide misdeeds behind super-restrictive public records laws — laws so restrictive even law enforcement’s best friends (i.e., prosecutors) couldn’t see them.

For the general public, this meant near total opacity. For criminal defendants, this meant rarely having the chance to impeach an officer’s testimony by offering evidence of past misconduct or routine untruthfulness.

Over the past few years, efforts have been made to roll back the restrictions built into California’s public records laws. All of these efforts died on the way to the governor’s desk, most riddled with rhetorical bullets fired by California police unions who claimed making this information public would endanger the lives of bad cops.

The status quo — in place for the last forty years — is being disrupted. Two bills have been signed by Governor Jerry Brown, creating holes in law enforcement’s law-enabled opacity.

Under the law, records involving “personnel, medical, or similar files of disclosure which would constitute an unwarranted invasion of personal privacy” were exempt from the public. Police records often fell into this category, with officer personnel records – such as use of force violations – subject to additional protection under the law.

Now with two new laws, SB-1421 and AB-748, the public has the opportunity to review records that were once exempt from oversight. Under SB-1421, law enforcement agencies are required to provide public access to records related to use of force, sexual assault complaints, and dishonesty in investigations and reporting of a crime. AB 748, authored by Assemblymember Phil Ting (D – San Francisco), supports Skinner’s bill by requiring the release of body camera footage within 45-days of a critical incident with a 30-day delay if a case is still pending.

The state’s police unions are still complaining about the new laws, calling the governor’s decision “reckless” and “disappointing.” But the Peace Officers Research Association of California (PORAC) goes even further, claiming the law requiring the release of body cam footage will encourage bad behavior by the usual suspects: people protected by the First Amendment.

Brian Marvel, President of the Peace Officers Research Association of California (PORAC), representing more than 70,000 public safety members, said AB 748 creates significant problems by doing the following:

It jeopardizes the privacy of witnesses, which in today’s society is exceedingly difficult to have them come forward, given the bullying tactics of certain activists groups.

[…]

It invites the media to interfere with investigations and prosecutions by contacting witnesses, second guessing determinations, and driving a false narrative regarding an incident, all to sell newspapers and get clicks on their websites.

These arguments are pathetic. Anyone arguing their critics are serving up criticism “for the clicks” has already lost the battle. The best way to combat a “false” narrative is openness and transparency. If law enforcement agencies really wanted to set the record straight following a shooting, they’d proactively dump footage and documents. Instead, these agencies spent years hiding behind the state’s public records laws, only making long-delayed appearances to claim people criticizing an officer’s actions were wrong and were being misled by public enemy #1, the Fourth Estate.

It’s likely good law enforcement officers support this transparency. After all, nothing to hide is nothing to fear, as we’ve been told when rights are about to be violated. Trust is built through transparency and accountability. Law enforcement agencies have never been fans of either, which has directly resulted in the destroyed community relationships they show so little interest in fixing.

Legislation can start rebuilding the trust law enforcement agencies aren’t willing to repair. It’s perfectly understandable why they’d be opposed to these bills: they do have something to hide and lots to fear. But they’re public agencies, funded by taxpayers and supposedly answerable to those they serve. They haven’t been. Not by a long shot. But these new laws — which go into effect at the beginning of next year — will force agencies to begin addressing their more problematic employees. In the long run, it will work out better for everyone.

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SCOTUS Nominee Brett Kavanaugh Problematic Opinion On Anti-SLAPP Laws

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So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh’s 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment “editorial” decision by broadband providers). Of course, that’s just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh’s other free speech related opinions. Ken “Popehat” White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).

As Ken notes, there really isn’t that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it’s a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC’s anti-SLAPP law can not be used in federal court.

Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh’s ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it’s also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly “substantive” or “procedural.” Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they’re perfectly valid in federal court.

If you read Kavanaugh’s ruling, his explanation for his reasoning is… minimal. He calls the arguments in favor of the other side “creative,” and some of them were. But on the meat of the question — is DC anti-SLAPP law more procedural or substantive — he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:

…the defendants cite some other courts that have applied State anti-SLAPP acts’ pretrial dismissal provisions notwithstanding Federal Rules 12 and 56. See, e.g., Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir. 2009); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see generally Charles Alan Wright et al., 19 Federal Practice & Procedure § 4509 (2d ed. 2014). That is true, but we agree with Judge Kozinski and Judge Watford that those decisions are ultimately not persuasive.

Yes, but why? Kavanaugh does not really explain. And that’s too bad, because the reasoning in those other courts is something that I do find pretty damn persuasive. Anti-SLAPP laws do have a procedural component, but they are primarily substantive in protecting the First Amendment rights of speakers. In particular, the Godin v. Schenks ruling gets into the weedy details of why the anti-SLAPP statute in that case does not bump up against or contradict federal procedures, while the Henry v. Lake Charles American Press ruling goes even further in highlighting the importance of protecting free expression:

Anti-SLAPP statutes such as Article 971 aim to curb the chilling effect of meritless tort suits on the exercise of First Amendment rights, and as the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Indeed, the Supreme Court has time and again emphasized the importance of First Amendment rights. See, e.g., Curtis *181 Publ’g Co. v. Butts, 388 U.S. 130, 165, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in the result) (noting “the fundamental interests which the First Amendment was designed to protect”)…. Article 971 thus provides for the avoidance of a trial that would imperil a substantial public interest. Indeed, as Article 971 embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, “there is little room for the judiciary to gainsay its `importance.'”

Again, multiple courts have ruled this way as well.

At best, Kavanaugh argues that anti-SLAPP laws basically cover the same ground as federal procedure rules concerning motions to dismiss and motions for summary judgment. As he summarizes:

Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

But in the Godin case, the 1st Circuit does (what I believe is) a much more thorough analysis of the (admittedly different, but still similar) anti-SLAPP law in that case, and its relationship to Federal Rules 12 and 56, basically noting that the anti-SLAPP law covers different ground, and doesn’t displace federal procedure:

Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. Section 556 on its face is not addressed to either of these procedures, which are general federal procedures governing all categories of cases. Section 556 is only addressed to special procedures for state claims based on a defendant’s petitioning activity. In contrast to the state statute in Shady Grove, Section 556 does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function. Cf. Morel, 565 F.3d at 24. In addition, Rules 12(b)(6) and 56 do not purport to apply only to suits challenging the defendants’ exercise of their constitutional petitioning rights. Maine itself has general procedural rules which are the equivalents of Fed.R.Civ.P. 12(b)(6) and 56. See Me. R. Civ. P. 12; Me. R. Civ. P. 56. That fact further supports the view that Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.

Crucially, as the Godin ruling notes, anti-SLAPP laws change the burden of proof, and that is “substantive,” meaning should be allowed in federal court:

Neither Fed.R.Civ.P. 12(b)(6) nor Fed. R.Civ.P. 56 determines which party bears the burden of proof on a state-law created cause of action. See, e.g., Coll v. PB Diagnostic Syst., Inc., 50 F.3d 1115, 1121 (1st Cir.1995). And it is long settled that the allocation of burden of proof is substantive in nature and controlled by state law. Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Am. Title Ins. Co. v. E.W. Fin. Corp., 959 F.2d 345, 348 (1st Cir.1992).

Further, Section 556 provides substantive legal defenses to defendants and alters what plaintiffs must prove to prevail. It is not the province of either Rule 12 or Rule 56 to supply substantive defenses or the elements of plaintiffs’ proof to causes of action, either state or federal.[16]

Because Section 556 is “so intertwined with a state right or remedy that it functions to define the scope of the state-created right,” it cannot be displaced by Rule 12(b)(6) or Rule 56

Even in the recent 10th Circuit ruling that says that New Mexico’s anti-SLAPP law shouldn’t apply in federal court (which Cathy Gellis argues convincingly was incorrectly decided), that case was very specific to the language of New Mexico’s fairly weak anti-SLAPP law — which didn’t shift the burden of proof (taking away one of — though not all — of the key arguments that the crux of the anti-SLAPP is substantive rather than procedural).

Admittedly, this is deep deep into the weeds on issues around federal procedure, but it is still disappointing that Kavanaugh went the other direction on the case and seems to wave off the fairly persuasive arguments that other judges have made by suggesting that somehow anti-SLAPP laws replace federal procedure. They do not.

Of course, the best away around even having this question be an open question is to have a federal anti-SLAPP law, but tragically Congress has so far failed to even seriously explore that whenever such bills have been introduced (and President Trump has certainly shown absolutely no interest in signing such a bill should it pass). As Ken notes in his piece, Kavanaugh does seem generally appreciative of anti-SLAPP laws in general, but feels that he can’t allow DC’s to be used in federal court for procedural reasons. That doesn’t suggest that he is bad on free speech — indeed, in that very same ruling he upholds the dismissal (with prejudice) of the defamation case at issue, just using the 12(b)(6) motion to dismiss process, rather than the DC anti-SLAPP rule.

And thus, I disagree with Kavanaugh’s ruling on using DC’s anti-SLAPP in federal court (as I disagree with his ruling on the 1st Amendment’s applicability to net neutrality), but neither of those appear to diminish his general record as being strong on First Amendment issues.

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