 The legislative council committee is convening this morning to consider whether to continue the long-standing practice of claiming copyright on the Oregon revised statutes. The chair notes that the committee has never claimed copyright over the law itself, but on those materials added by staff in preparing each edition of the ORS. I'd like to ask council to provide a brief explanation, please, for my fellow legislators, as well as those who are in attendance here today at the meeting. Go ahead, please. Thank you, Mr. Chair and members. The materials that you have in front of you have a memo for me explaining the situation, and I'll just briefly summarize that. It has been the direction of the legislative council committee since 1953 to copyright each edition of the ORS that is prepared at the conclusion of the each regular session of the legislative assembly. We have done that since 1953. And as you all know, the legislative council office prepares and sells to the public the printed volumes of the ORS. Pursuant to your direction, since 1997, the office also enters into licensing agreements with commercial providers of legal research information. Those providers typically charge lawyers and other intensive users of legal research services, a subscription fee to access the information. In addition, pursuant to statute and your direction, since 1997, the ORS has been available without charge for free in electronic form on the legislature's website. In addition to the other legislative documents, bills, the session laws, committee agendas, and the like. Not by chance, several months ago, members of the legislative council staff came across a website operated by the Justia Company, and it is a website that provides legal research materials, also provides internet marketing services to lawyers, and is a site that has advertising that's directed primarily at lawyers posted. We noted that the ORS was posted there, actually under their copyright, and we sent them a letter asking them to take that down, which they complied with, but without objection. We then entered into a series of discussions with them about first exploring the idea of Justia entering into a traditional licensing agreement with us, as we have done with other commercial providers, and then entering into a Creative Commons-style license that is basically a license that allows the user to use the electronic database without charge, and nevertheless be in compliance with copyright claims. Justia's assertion, however, is that the ORS is not capable of being copyrighted in any form, and at the moment they are considering seeking a declaratory judgment in federal court to that effect. However, they have asked you to review the ORS copyright policy and perhaps revisit that. As I noted, it's been the policy since 1953. I'll also give you a brief update on federal law, federal copyright protection initially is grounded in the U.S. Constitution, but case law surrounding that has evolved over time. There's a significant 1991 U.S. Supreme Court case that basically has made originality the standard by which materials can be subject to copyright, and in that case basically provides that for material to be capable of copyright, it must, either in its form or in its compilation, there must be some minimal level of creativity. The facts of that case involved a telephone book, and the court decided that the listing of phone numbers and names associated with that did not meet that minimal threshold level of creativity. Subsequent case law has more oriented towards legal research materials, has also concluded that publications that list, for example, the procedural history of cases or the names of attorneys and the like are also not capable of, or parallel citations, are not capable of copyright. The ORS is, in our view, somewhat more than that, but it is not entirely clear the extent to which under this new law it is capable of copyright. I'll note in your materials the third tab in gives you some examples of what in the ORS the committee claims copyright over, and what it does not, namely the committee claims copyright over lead lines, editorial notes, the chapter organization index, and annotations. And what you're being asked to consider here is whether you, at this point, want to disclaim that copyright going forward in light of the prevalence of legal research becoming an online function rather than a book function and the prevalence of sites on the internet that provide legal research to users for free and in light of your public policy choice to provide the ORS to the public in general. This is a long-standing choice of yours as well on the legislative website. I'd be happy to take any, if you have any, questions to answer them. Any questions? I have a few, Mr. Chair. Well, then please ask them. First, what other states have similar copyright restrictions that we are seeking to implement are continued in this case? Mr. Chair, Representative Richardson, there are 26 states that claim some form of copyright, whether they enforce that or not is a different question, but there are 26 states that do and 24 that make no statement that we have been able to determine with respect to their statutes. May I continue? Sure. Is there a policy that is good for Oregon in maintaining the restrictions that are being sought to over, that are being sought by Justia to change? Mr. Chair, Representative Richardson, there perhaps would be some concern about the continued accuracy of not the laws but the additional material that staff adds to the laws. However, I should note that regardless of the decision the committee makes, the Oregon revised statutes as prepared by the Legislative Council Office will be the official version of the IRS, and it is that version that by court rules are the only version you can cite to in court proceedings. So you continue really to maintain control over the accuracy of whatever is out there for official purposes. Representative Richardson, the question, so in terms of that issue of really protecting the core integrity of the IRS, are there other ways to do that? We've attempted, we and apparently 25 other states have attempted to do that by claiming some form of copyright, are there other ways in your estimation to do that that do not involve claiming copyright? Well, Mr. Chair and Representative Hunt, in theory we could provide only the printed version of the IRS. Though technology continues to evolve in this area and it will not, in fact, the technology exists now to take the printed, even if there were no publicly available electronic version, to take the printed version, convert that into electronic text, and then have that available. So in terms of technology, the answer is no, but in terms of the practical effect of that, it isn't in anyone's interest to have inaccurate versions of the IRS out there. And because only the official version will be recognized for official legal actions such as court matters and the like, that will be strong protection. Representative Rosenbaum, you look like you want to say or say or ask a question. Thank you, Mr. President. I guess I was just following up on Representative Hunt's question because I see Dexter in your memo that there have been discussions about non-monetary licensing agreements that could be negotiated, which seem to be designed to protect the integrity of the statutes from alteration in some form. I mean, everybody hears about Wikipedia and how you can change the number of Asian elephants and whether they're an endangered species by just getting a whole bunch of people to write in and say they're not. Obviously, I'm making light of this, but it's a serious matter that we don't want the statutes out there and being changed in some form that would be harmful to the public or to the public interest. So could you come in and net a little? Sure, Mr. Chair, Representative Rosenbaum. Yes. First, there is a Creative Commons license approach that is available, and in fact, we've had discussions with Justia and the other interested parties here about that option. They actually directed us in that direction at first, but they are at this time not interested in pursuing that arrangement. I'll also note in your materials you have an article from the Oregon State Bar Journal this month's edition describing the trend of legal research being available through a Creative Commons-style license, and actually the article discusses publicresource.org, which is another entity, Carl Malamud, the founder of that organization is here today to discuss this situation as well, and you may want to follow up on that question with him. And Nelson, any questions? Nelson. Senator Verdick. Yes, Mr. Chair. Could you elaborate on how the Creative Commons concept works and why that may not be acceptable? Mr. Chair or Senator Verdick, the Creative Commons license, basically my understanding is that it is a license you can as a holder of copyright can enter into to authorize anyone in the public to use the copyrighted material, but and to pass that on to others as well, subject to each person who receives the material agreeing to the terms of the license. You can structure that in such a way so that simply by posting the terms of the license on the legislative website, for example, that would be all that would be needed to achieve that. And so that if someone were to download, for example, ORS from the legislative website, they would buy that action to agreeing to the terms of the license. Okay, so follow up, Mr. Chair. So if that were to take place, then would the holder, would the person who agreed to the terms of those license, you know, Justia, for example, would that be a legitimate source for court purposes? That would require an additional change on the part of the legislature through the through court rules and court rules, which actually is not a would be a required change in court rules that court rules in this state recognize an official version of the ORS and that is the version produced by the Office of Legislative Council. Senator Nelson, please. Thank you, Mr. President. It seems to me that, you know, we're living in age where you have open source technology, pretty much freedom of what's going on. There's no propriety, proprietary effects of even software is now diminishing. We may technically be right as I read the information that you give into us, but is it worth the risk and reward? I mean, is that really what we're talking about? What's the risk and what's the reward? And do we want to make this stuff open to the public, which it already really is? And how much money does the state actually gain by selling these books and, you know, stuff like that? It seems to me that's a legitimate question. Mr. Chair, Senator Nelson, I can provide you information regarding the funding, the specific funding if you want. I mean, to me, it's just a question of, does this fight really worth fighting? It's out of, it's in the pub now, you do a lot of it electronically right now, don't you? Don't we do that? Mr. Chair, Senator Nelson, yeah, it's posted on the legislative website right now and has been for a number of years. I'll note that the sales of the printed volume of ORS support they're provided at cost by statute at cost to the consumers of legal information. The cost involved is the cost not just of printing and distributing the physical, the bound ORS, but also the more significant cost of editing and compiling the enactments that the legislature enacts into a codified addition. And roughly we generate $2 million in ORS sales, and that equals, and round numbers, our costs of which $500,000 is the actual printing and distribution costs, and the remaining one and a half million, so about 75%, is the cost of editing and compiling the legislative enactments. Could you still sell that even though, I mean, we didn't do the copyright, you could still sell the books, or there wouldn't be anything of interest in doing that. And has anybody thought about, you know, is this going to cut into your marketplace if these folks get their copyright declared declaratory judgment sustained? That's correct, Senator. It would not, if you disclaim copyright, it would then also permit any printer who wanted to decide to market their own version of the ORS. It would allow them to do that as well. And so the $2 million that are currently generated, there's uncertainty as to what will happen in the future. Thank you. Any further questions before we go to testimonies? Okay, just one second. Okay, we're going to, we have two panels of invited testimony before we go to general public testimony. One of the panels is not here, so they have submitted a letter. So that panel will speak by letter.