Statutes – Citation norms that reinforce copyright claims

The uncertain copyright status of compiled state statutes has long been a factor in the competitive legal information market.  Private publishers have asserted copyright ownership of their own compilations, with and without editorial additions such as annotations.  States have asserted copyright on their own behalf in order to control the terms on which their codified statutes are published and to furnish privileged, if not exclusive status, to an “official” edition.  While the Copyright Act speaks with clarity to the U.S. Code through a provision (17 U.S.C. § 105) that excludes from copyright “any work of the United States Government” no comparable provision speaks to state legal materials.  Rulings that they must be viewed as in the public domain rest on more general principles, arguably of constitutional origin. See, e.g., Veeck v. Southern Building Code Congress Int’l, Inc., 293 F.3d 791 (5th Cir. 2002).  A recipe long used to attach proprietary claims to the public material of law has been to surround it with editorial matter – headnotes for judicial opinions, annotations to statutes – and publish the composite with copyright notice and registration.  Such a composite is published for the State of Mississippi in both print and electronic form by LexisNexis under the title, Mississippi Code of 1972, Annotated.  Pursuant to a Mississippi statute the publisher has copyrighted that work on behalf of the state.  Recently, a non-profit dedicated to securing public access to law and other public materials, Public.Resource.Org, placed a digital copy of Mississippi’s code, annotations and all, on the Internet.  The state attorney general’s office demanded their removal.  Public.Resource.Org refused.  A copyright issue of major importance appears to be joined.

A less conspicuous citation question runs in parallel with the copyright issue.  How should a lawyer, judge, or commentator cite to the legislative provisions that frame this case?  The citation guides from which most U.S. law students are taught reinforce Mississippi’s copyright claim by requiring that Mississippi statutes be cited to the “official” Mississippi Code of 1972, Annotated abbreviated “Miss. Code Ann.” if they are to be found within it.  Presumably, the only way to determine whether they are in it is to use that copyrighted version.  If the writer uses the competing “unofficial” compilation prepared by Thomson Reuters and marketed under the West brand, she is instructed to acknowledge that in the cite.  Both guides express a print-era view that statutory citations should not simply furnish a generic formula that will enable a reader to access the text in whatever source she has available but ought to specify the particular source used by the writer, with that source being, if at all possible, the state licensed and copyrighted version.  Whatever rationale this rule had during the era of limited print options has long since evaporated with the proliferation of up-to-date digital compilations.  No matter what the academic manuals say, a lawyer citing a Mississippi statute to a Mississippi judge or a federal one is not compelled by the relevant rules of appellate procedure to indicate whether he found its text on Westlaw, Lexis, Bloomberg Law, or Casemaker (the latter being the legal research service available without charge to all members of the Mississippi Bar).  A judge’s citation may read “Miss. Code Ann.” but that format is the result of habit – very likely a misleading one in view of the probability the judge will in fact have read the cited provision on Westlaw rather than in the licensed code published by LexisNexis.  (Among citations to unpublished decisions by Mississippi appellate judges, the ratio of proprietary “WL” to “LEXIS” citations runs overwhelmingly in Westlaw’s favor.)

Following the widespread contemporary practice of citing statutes in a generic form, let me draw attention to the incredible breadth of the copyright claim asserted in Miss. Code § 1-1-9(2) (added in 1996 as the state prepared the ground for a new publication contract) and the astonishing ownership assertion backed by a stiff fine in Miss. Code § 1-1-9(3) (appended in 1998 but surely preempted by 17 U.S.C. § 301).  Finally, when the successful bidder, LexisNexis, was faced with competition from an “unofficial” code offered to past subscribers for free by the prior holder of the official franchise, Thomson Reuters, the Mississippi legislature passed yet another provision purporting to claim ownership of the code’s (purely descriptive) title.  See Miss. Code § 1-1-8(2).  (For these provisions, I am unable to link to the Lexis site providing free access to an unannotated version of the Mississippi Code because, as the Public.Resource.Org letter notes, it is inhospitable to links.)

It is notable that the letter from the Mississippi Attorney General’s office to Public.Resource.Org neither quotes from nor cites these provisions.  The claim it states is framed far more narrowly.  Moreover, the letter endorses the 8 Principles of Open Government Data. The next step should be for the Mississippi Legislature to bring its code into compliance. No such act is required, however, for judges, lawyers, law students, and others to begin citing Mississippi statutory law using the generic “Miss. Code” rather than the proprietary “Miss. Code Ann.”

 

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