Re: Copyright in California Regulations

Good morning, all! I just became aware of the California Regs discussion strand here. We seem to be having a similar problem here in Maryland. I'd be interested in hearing all legal points of view on this subject
(we can take this off-list, of course). Maryland's situation is that
the Division of State Documents doesn't really mind having a free online version of the Code of Md. Regs (COMAR), it just doesn't want you to use them commercially! In my mind, this makes it a classic case of a state wanting to enact its own version of database protection. Attached is an e-mail I sent out to our local Law Library Association of Maryland.

Steven Anderson, JD, MA
Librarian
Gordon Feinblatt Rothman Hoffberger & Hollander, LLC 233 East Redwood Street
Baltimore, MD 21202
Phone: 410.576.4255
Fax: 410.576.4246
E-Mail: sanderson[_at_]gfrlaw.com
Web: http://www.gfrlaw.com/

I had a question about what, more specifically, is included in SB 259's
(http://mlis.state.md.us/1999rs/billfile/sb0259.htm) current commercial
restrictions. My answers are as follows. Following my diatribe is a copy of the relevant restrictions. (Since I posted my last update, I have since found out that the Division of State Documents is very protective of their "ownership" of COMAR, so much so that there is a strong likelihood that the legislation will not pass in the House.)

Basically, the problem is the entire last half of the bill. The restriction is that COMAR may not be used "for any commercial purpose whatsoever." Therefore, the ONLY attorneys who would be allowed to use it are those working on pro bono cases (which are explicitly noncommercial). So, what's really the point at all if no attorney can access it?

The bill's creator's intention, of course, was not to outlaw attorneys from practicing online administrative law, but rather to ensure that the Division of State Documents would receive continued funding for COMAR publication by prohibiting commercial publication of COMAR by other sources. These sources would in turn compete with the Division, and the Division's revenue would drop considerably because of the increased competition -- at least in the Division's mind.

This rationale, however, poses even more difficult policy and philosophy questions. Most practically, there is now pending Federal legislation, HR 354 (http://thomas.loc.gov/cgi-bin/query/C?c106:./temp/~c106SaeWhQ), the Collections of Information Antipiracy Act, that addresses intellectual property-type protection of factual databases. Although commercial database vendors, like Lexis and Westlaw, would be protected if passed, Sec. 1404(a) exempts all government databases -- even state and local ones -- from protection. Meaning, of course, that all government material would stay in the public domain (one would hope). Sec. 1405(b) ensures that states do not protect their own databases, as that section explicitly preempts state law. Obviously, the Division of State Documents is trying to swim against the tide of Federal legislation. SB 259 could well be moot by the end of the year, and government information would be in the public domain.

The philosophical bottom line is whether this state's information should be in the public domain or not. The State Reporter currently may copyright the Maryland Reports; the Division of State Documents copyrights the print version of COMAR, although that is not mandated by statute. However, this country was built upon the ability of the common person to access information provided by the government that s/he elected. If state information is copyrighted, commensurate fair use provisions allow for the dissemination of much of this important material. There would be no similar fair use provision under SB 259; instead, it would be even more restrictive.

These days many government officials seem to have difficulty understanding the practical problems caused by restricting access to digital information. Of course, digital documents may be cut and pasted and copied to millions of users worldwide -- all at the touch of a button. In my mind, this is an aspect of the digital medium that should be celebrated, and not feared.

SB 259's commercial use restrictions make little sense in this new world. For example, below is a copy of part of the bill. If I did the same thing with an online version of COMAR and passed it off to one of you private law librarians as an ILL (something that is wholly permissible under the fair use provisions of Federal copyright law), I'd probably have to be fined $1000. If you used the material, too, would you be liable? Maybe, maybe not -- how will the courts interpret the necessity of viewing the notice of the legend? What if I was working on a pro bono case and accessed the information for free and laserprinted it, but then 2 years later, having a similar case, reread the laserprinted COMAR page? By the General Assembly's reasoning, I should be fined $1000. What happens to public law librarians printing COMAR copies for patrons who then use it for commercial gain? Is use commercial if the material is somehow placed into the stream of commerce? If so, the librarian should get zapped $1000. What happens if one of us tried to make our own searchable COMAR database, as DC law librarians have been doing for years with public domain Federal legislative research (Federal government information is never protected by copyright -- it's always in the public domain)? Oops, $1000!

Do we really need to have a state information policeman tracking down how we use information? If we do, then we should heartily support this legislation. If we'd like to avoid the whole Orwellian drama this would cause, I believe the current commercial restriction should be opposed by all of us.

(E) THE RECEIPT OF ANY MATERIAL MADE AVAILABLE TO THE PUBLIC UNDER
 8 THE TERMS OF SUBSECTION (D) OF THIS SECTION SHALL BE PRECEDED BY A LEGEND  9 STATING THAT: 10 "THE INFORMATION YOU ARE ABOUT TO RECEIVE IS MADE AVAILABLE FOR 11 PERSONAL USE ONLY. BY PROCEEDING BEYOND THIS POINT YOU AGREE THAT YOU 12 WILL NOT USE THE INFORMATION FOR ANY COMMERCIAL PURPOSE WHATSOEVER 13 INCLUDING, BY WAY OF EXAMPLE AND NOT IN LIMITATION, THE DOWNLOADING OF 14 THIS INFORMATION FOR USE IN ANY OTHER ELECTRONIC OR PRINTED FORM.". 15 (F) THE LEGEND REFERENCED IN SUBSECTION (E) OF THIS SECTION SHALL 16 BE PRESENTED TO THE RECIPIENT IN A MANNER THAT AFFORDS THE RECIPIENT AN 17 OPPORTUNITY TO REFUSE TO ACCESS THE MATERIAL. 18 (G) DATA OR MATERIAL OBTAINED UNDER SUBSECTION (D) OF THIS SECTION 19 MAY NOT BE USED FOR ANY COMMERCIAL PURPOSE. 20 (H) A PERSON WHO VIOLATES SUBSECTION (G) OF THIS SECTION IS SUBJECT 21 TO A FINE NOT EXCEEDING $1,000 FOR EACH VIOLATION. Received on Fri Feb 19 1999 - 14:03:48 GMT