{"id":39,"date":"2013-10-21T18:11:48","date_gmt":"2013-10-21T18:11:48","guid":{"rendered":"http:\/\/citeblog.access-to-law.com\/?p=39"},"modified":"2021-12-11T18:14:03","modified_gmt":"2021-12-11T18:14:03","slug":"statutes-citation-norms-that-reinforce-copyright-claims","status":"publish","type":"post","link":"https:\/\/citeblog.access-to-law.com\/?p=39","title":{"rendered":"Statutes – Citation norms that reinforce copyright claims"},"content":{"rendered":"

The uncertain copyright status of compiled state statutes has long been a factor in the competitive legal information market.\u00a0 Private publishers have asserted copyright ownership of their own compilations, with and without editorial additions such as annotations.\u00a0 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 \u201cofficial\u201d edition.\u00a0 While the Copyright Act speaks with clarity to the U.S. Code through a provision (17 U.S.C. \u00a7 105<\/a>) that excludes from copyright \u201cany work of the United States Government\u201d no comparable provision speaks to state legal materials.\u00a0 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.<\/i>, 293 F.3d 791<\/a> (5th Cir. 2002).\u00a0 A recipe long used to attach proprietary claims to the public material of law has been to surround it with editorial matter \u2013 headnotes for judicial opinions, annotations to statutes \u2013 and publish the composite with copyright notice and registration.\u00a0 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<\/i><\/a>.\u00a0 Pursuant to a Mississippi statute<\/a> the publisher has copyrighted that work on behalf of the state.\u00a0 Recently, a non-profit dedicated to securing public access to law and other public materials, Public.Resource.Org<\/a>, placed a digital copy of Mississippi\u2019s code, annotations and all, on the Internet.\u00a0 The state attorney general’s office demanded their removal<\/a>.\u00a0 Public.Resource.Org refused<\/a>.\u00a0 A copyright issue of major importance appears to be joined.<\/p>\n

A less conspicuous citation question runs in parallel with the copyright issue.\u00a0 How should a lawyer, judge, or commentator cite to the legislative provisions that frame this case?\u00a0 The citation guides from which most U.S. law students are taught<\/a> reinforce Mississippi\u2019s copyright claim by requiring that Mississippi statutes be cited to the \u201cofficial\u201d Mississippi Code of 1972, Annotated<\/em> abbreviated \u201cMiss. Code Ann.\u201d if they are to be found within it<\/a>.\u00a0 Presumably, the only way to determine whether they are in it is to use that copyrighted version.\u00a0 If the writer uses the competing \u201cunofficial\u201d compilation prepared by Thomson Reuters and marketed under the West brand, she is instructed to acknowledge that in the cite.\u00a0 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.\u00a0 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.\u00a0 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).\u00a0 A judge’s citation may read \u201cMiss. Code Ann.\u201d but that format is the result of habit \u2013 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.\u00a0 (Among citations to unpublished decisions by Mississippi appellate judges, the ratio of proprietary \u201cWL\u201d to \u201cLEXIS\u201d citations runs overwhelmingly in Westlaw\u2019s favor.)<\/p>\n

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 \u00a7 1-1-9(2)<\/a> (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 \u00a7 1-1-9(3)<\/a> (appended in 1998 but surely preempted by 17 U.S.C. \u00a7 301<\/a>).\u00a0 Finally, when the successful bidder, LexisNexis, was faced with competition from an \u201cunofficial\u201d 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\u2019s (purely descriptive) title.\u00a0 See<\/i> Miss. Code \u00a7 1-1-8(2)<\/a>.\u00a0 (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.)<\/p>\n

It is notable that the letter from the Mississippi Attorney General\u2019s office<\/a> to Public.Resource.Org neither quotes from nor cites these provisions.\u00a0 The claim it states is framed far more narrowly.\u00a0 Moreover, the letter endorses the 8 Principles of Open Government Data<\/a>. 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.”<\/p>\n

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The uncertain copyright status of compiled state statutes has long been a factor in the competitive legal information market.\u00a0 Private publishers have asserted copyright ownership of their own compilations, with and without editorial additions such as annotations.\u00a0 States have asserted copyright on their own behalf in order to control the terms on which their codified […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[5,6,7,4],"class_list":["post-39","post","type-post","status-publish","format-standard","hentry","category-statutes-2","tag-codes","tag-copyright","tag-mississippi","tag-statutes"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t