AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 204

LARGE ADDITIONAL ATTACHMENT(S) to Public Resource's Second Motion for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. 202 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 203 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 Public Resources Statement of Disputed Facts, # 2 Public Resources Evidentiary Objections, # 3 Public Resources Request for Judicial Notice, # 4 Declaration Carl Malamud, # 5 Declaration Matthew Becker, # 6 Consolidated Index of Exhibits, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, # 53 Exhibit 47, # 54 Exhibit 48, # 55 Exhibit 49, # 56 Exhibit 50, # 57 Exhibit 51, # 58 Exhibit 52, # 59 Exhibit 53, # 60 Exhibit 54, # 61 Exhibit 55, # 62 Exhibit 56, # 63 Exhibit 57, # 64 Exhibit 58, # 65 Exhibit 59, # 66 Exhibit 60, # 67 Exhibit 61, # 68 Exhibit 62, # 69 Exhibit 63, # 70 Exhibit 64, # 71 Exhibit 65, # 72 Exhibit 66, # 73 Exhibit 67, # 74 Exhibit 68, # 75 Exhibit 69, # 76 Exhibit 70, # 77 Exhibit 71, # 78 Exhibit 72, # 79 Exhibit 73, # 80 Exhibit 74, # 81 Exhibit 75, # 82 Exhibit 76, # 83 Exhibit 77, # 84 Exhibit 78, # 85 Exhibit 79, # 86 Exhibit 80, # 87 Exhibit 81, # 88 Exhibit 82, # 89 Exhibit 83, # 90 Exhibit 84, # 91 Exhibit 85, # 92 Exhibit 86, # 93 Exhibit 87, # 94 Exhibit 88, # 95 Exhibit 89, # 96 Exhibit 90, # 97 Exhibit 91, # 98 Exhibit 92, # 99 Exhibit 93, # 100 Exhibit 94, # 101 Exhibit 95, # 102 Exhibit 96, # 103 Exhibit 97, # 104 Certificate of Service)(Bridges, Andrew)

EXHIBIT 23

Prepared Statement, Page 2
Who Uses the Law
For 20 years, I have been working to put large government databases on-line. Most of
my work has been in Washington, D.C. where I was part of a group who persuaded the
Securities and Exchange Commission to put the EDGAR database on the Internet. The
primary argument we heard against making the database available for free on the
Internet was that ordinary people simply didn’t care about specialized information.
Those who needed the data, a few professionals on Wall Street, were well-served by
the existing commercial providers. Or so the theory went.
As we now know today, the investing public is better served when they have access to
the information filed by public corporations. Transparency does not exist if the
reports that are filed never see the light of day. Accountability in publicly-traded
corporations is greatly enhanced when “ordinary” investors can access insider-trading
filings, annual reports and quarterly reports, and executive compensation information.
Likewise, the law is better served when we can all read it. It is tempting to think that
state and federal statutes are only of interest to practitioners, such as government
lawyers and the lawyers from corporations and law firms they meet in court. But, the
law governs us all, and a working knowledge of the law is a prerequisite for many
professions:
•

Realtors must have a basic understanding of property law to practice their
profession e ectively and honestly. Likewise, individual homeowners who
rent out their property must understand the basic legal framework
underlying the landlord-tenant relationship.

•

Business executives are governed by a legal infrastructure that governs their
behavior: privacy, what constitutes anticompetitive behavior, under what
conditions employment may be granted or terminated, and the basics of a
contract are working knowledge for any business manager.

•

Doctors and other medical professionals are guided by a complex system of
law and regulations governing treatment, privacy, and the byzantine system
of logistics and finance underlying the insurance industry that they must
deal with in their everyday work.

Prepared Statement, Page 3
Access to the Law as an Industry
Oregon is not alone in asserting copyright over its statutes. While the vast majority of
states make access to their state code free and unrestricted, a few do not. For
example, the state of Mississippi puts the following notice prominently on its web
page:
“The Secretary of State's searchable Unannotated Mississippi Code is a link to
information provided by LexisNexis Publishing, the o cial publisher of the
Mississippi Code. For further information about the o cial Unannotated
Mississippi Code or to report errors, contact LexisNexis at
[e-mail]. ... Pursuant to Section 1-1-9 Miss. Code
Ann., the laws of Mississippi are copyrighted by the State of Mississippi.
Users are advised to contact the Joint Committee on Compilation, Revision
and Publication of Legislation of the Mississippi State Legislature for
information regarding publication and distribution of the o cial Mississippi
Code.”
http://www.sos.state.ms.us/ed_pubs/mscode/
The overwhelming legal opinion from experts such as William Patry, the author of the
7-volume treatise “Patry on Copyright” as well as the former copyright counsel to the
U.S. House of Representatives, is that such a position is unsupported by law.
Why then is copyright asserted? The reasons are simple, and they are both about
money:
•

The state can derive revenue, either through direct sale of printed copies by the
state, as Oregon does, or through a royalty arrangement with a commercial
publisher.

•

The commercial publisher gains a competitive advantage over others in the
marketplace by being the original and o cial publisher of a particular database.

For the commercial publisher, one can easily see the desirability of having a monopoly
on the law. But, does that really serve the business interests of the state? After
observing for 20 years how the Internet a ects countless businesses I submit to you
that copyright is not a helpful business tool when it comes to state revenue. Countless

Prepared Statement, Page 4
businesses have found that artificially restricting access to markets simply reduces the
size of markets. If the Oregon Revised Statutes were more widely published, more
people would use them and that means more people would buy o cial editions.
How then, without copyright, can the state gain revenue if anybody can publish this
data? The answer is in the fact that the Legislative Counsel is in fact the o cial
publisher and compiler of laws. We have no objection to the Legislative Counsel
selling an o cial certified copy of the Oregon Revised Statutes and we have no doubt
that most practicing lawyers in Oregon would opt for such an o cial copy. But, trying
to protect that o cial copy through copyright and other barriers to distribution are
simply not in the best interest of the state.
Innovation
One might argue that the state of Oregon does indeed provide public access to the
public statutes through the web site of the Legislative Counsel. Why is that not
enough? Why must this data be available for use without restriction?
The answer is in innovation. We understand that a $30,000 license for use of the
Oregon Revised Statutes is of no consequence to the large foreign multinationals that
dominate the U.S. market for retail legal information. But, for a solo practitioner who
has a better idea on how to build a web site to navigate law and wishes to start a small
business, $30,000 is a significant barrier to entry. Likewise, a librarian in a public
library who wants to build a better web site is prohibited from building a better web
site. And, of course, any law student at the University of Oregon or Willamette
University should be able to download the Oregon Revised Statutes and create a better
interface.
If the only providers of public data are a few government webmasters and their
counterparts at the high-priced commercial services, the citizens of Oregon are not
well-served. Allowing public use under limited circumstances does not solve the
barrier to entry problem. Rather, if innovation is the aim, this public data must be
clearly labeled such, allowing anybody to create a compilation and to distribute that
compilation widely.
In this sense, the Oregon Revised Statutes play a broader role, part of the collective
body of data known as “works of government.” It is clearly established that works of

Prepared Statement, Page 5
government are part of the public domain. Particularly central to that principle, of
course, are the cases and codes of the states and the United States. But, just as
important are the other kinds of information that our government produces, including
weather data, maps, and a host of other scientific, cultural, and economic information.
Works of the government are in the public domain because we understand that
business builds on top of these works of government as infrastructure, just as they
build business on top of our other infrastructures such as water, roads, and electricity.
One of the least-recognized but certainly most important roles of government is as an
information provider, and one of the little heralded things that make our United States
di erent from other countries is the remarkably e ective role our government has
played in providing that information infrastructure.
The fact that works of government are in the public domain is thus one of the
foundations of our system of government, and this policy has been stated many times
by the courts. The Oregon Revised Statutes should not have copyright assertions
because such assertions fly directly in the face of that long-standing public policy in
favor of the public domain when it comes to works of government.
I appreciate the opportunity to appear before the Committee today and look forward to
answering your questions. Thank you.

Public.Resource.Org is a 501(c)(3) nonprofit corporation based in Sebastopol, Calif.
The organization works to make government more accessible by finding, distributing,
and maintaining public domain information on the Internet. Working in a joint venture
with the National Technology Information Service, Public.Resource.Org has placed
hundreds of government videos on the Internet Archive and YouTube. As one of the
leaders in the movement to create public legal materials on the Internet—a project
known as “America’s Operating System”—Public.Resource.Org maintains an archive of
millions of pages of Government Printing Office documents and 50 years of Circuit
Courts of Appeals decisions. Carl Malamud, founder of Public.Resource.Org, is credited
with creating the first radio station on the Internet and was responsible for placing the
U.S. Securities and Exchange Commission (SEC) and Patent databases on-line.