 The first panel one is here, up from California, and they've been told to speak briefly. I mean by that, it's just a signal to those members of panels that when I say that, that's a signal. Tim Stanley, Carl Mamalamud, is that right? Malamud, sir. Thank you. And Carl Olson, would you please come here and speak to us? This is panel one. Panel two with Susan Graber the Oregon State Bar will not be here but there is a letter. At each one of your stations, single little statement from the State Bar. We will then go to public testimony. Gentlemen, I don't know who wants to go first but as you probably know, you need to say who you are, what you are, and where you're from. It's just a record. And then please proceed. I'd like to do this if you don't mind. This is really one of your, it's going crazy. We let them do their presentation and then we ask them any questions now. Unless you really can't take it. It's something you just got to do. Then I'll let you do it otherwise. Could we just do that please? Oh wait, do we want to call? We're going to call Senator Brown. You got to hold because we want to call Senator Brown who wants to be here. I mean she wants to be here but she's not here. Which means she's going to be here by phone. Thank you. Are you nervous gentlemen? No. Well, you should be. I'll just say that just to say it. I mean, they're from California. I wanted to be a little nervous. Let me amend his answer, yes. Senator Brown, we're trying to reach Senator Kate Brown on the phone. That's what we're trying to do. Well, you know what? I'm going to lose patience. Could we? Do we need to dial a one from here? Yes. Yeah, why don't you dial one? Yeah. I'm sorry, outside we got, what we're doing is we're trying to stop leaks. That's what's going on outside. They are hustling out there, buddy. They're flat out getting after it. Do you want me to close the curtains? No, don't, no. I want to see Shun sign. Do not close those curtains. Actually, we need the curtains shut. This is Kate Brown. Kate, this is Peter Courtney. Hi, Peter Courtney. You're here now with all of us. Oh, I'm so excited. I'm very glad to hear that. We're now going to hear from some witnesses, okay? Okay. You know what's going on, right? Yes. Because I called you. Okay. All right gentlemen, now you may proceed, please. I guess I'll start. Senate President Courtney, I'm Majority Leader Hunt, Honorable Members of the Legislative Council Committee. Thank you very much for inviting me to appear here today. My name is Carl Malamud, and I'm the President of PublicResource.org. We are a nonprofit corporation, and what we do is make government information more widely accessible to the public without charge. I'm not a lawyer, so I'm not going to dwell on the legalities of what constitutes the creative work and the long line of court decisions on that topic, but I would like to address why I care so much about whether or not the Oregon Revised Statutes can be copied and used without requesting prior permission or receiving express or implied consent. Access to the law is a vital part of our democratic system. Law is our society's user manual. It's our operating system. The cases and codes of the local state and federal governments are the rules by which we govern ourselves, and those rules must be an open book if we're going to be a nation of laws. So this is a question about democracy, but it's also about something else. It's about innovation, and, of course, it's about money. One might argue that the State of Oregon already provides public access to the public statutes through the website of the Legislative Council, and the question of why is that enough and why must this data be available for use without restriction? Before dealing with that, however, I think there's two points that are important. The first is, how can without copyright can a state gain revenue if anybody can publish the data? And I think the answer to that is very simple, that the Legislative Council is, in fact, the official publisher and compiler of the laws, and publishes the official version of the laws. And we have absolutely no objection to the Legislative Council selling such an official certified copy, because we believe that most practicing lawyers in Oregon would opt for such an official copy because they don't want to take the risk of having an unofficial copy and getting it wrong. And so I don't believe you would have a hit on revenue by changing your policy. The second question is authenticity of the Oregon Revised Statutes. As Representative Rosenbaum and others have brought up, what if somebody alters the Oregon Revised Statutes and puts a doctored version online? That obviously is not a good thing. But copyright is not the right tool for dealing with that. There are digital signatures, and the Legislative Council could use technologies called MD5 or SHA-1 signatures, and that is a technique for allowing any user to verify that the text they're looking at is unaltered from the time it was published. And so those tools, official copies, and digital signatures are available. I think the important thing here is that if the only providers of public data are a few government webmasters and their counterparts at the high price commercial services, the citizens of Oregon are not well served. Allowing public use under limited circumstances does not solve a barrier to entry problem, and it does not solve the confusion issue of some high school student wanting to download the statutes and create a better version. Even a public license makes that very confusing. And having dealt with copyright issues for a long time, I know that when there are licenses and the licenses tend to be long, even Creative Commons licenses, it makes it murky. It discourages people from using that information, which is one reason we work so hard at putting free law online. And in this sense, the Oregon Revised Statutes are part of a broader role, part of a collective body of data known as works of government. And it's been clearly established in the United States that these works of government are in the public domain. And that's particularly true with the laws and the other work products of the legislature. The courts have been very clear about saying that if we are a nation of laws, we must be able to read them. But that's also true for broader information, and something that makes the United States so special is that the works of government of the states and of the federal government have been in the public domain. And that has led to things like the Internet. It's led to global positioning systems. It's led to mapping data and things like Google Maps. And so in that sense, the Oregon Revised Statutes and all the rest of the laws and the materials that are the work product of the Oregon State Government are an important economic driver. And by having those works in the public domain, that spurs a lot of economic activity and, more importantly, innovation. And the innovation as well as citizens to read the law in a more effective manner. Thank you very much. Thank you. Senate President Courtney, Majority Leader Hunt and the Honorable Members of the Committee. My name is Carl Olson. I am a lawyer. I am counsel for Justia, Inc. and for public.resource.org. I've specialized in copyright and media law for approximately 25 years. Counsel, just one second. Senator Brown, can you pick up this testimony? Not barely. Yeah, that's a fair that. We've got tremendous noise in the background because they're doing construction outside. Are these things in front of them? No. They might come. They might come. We could maybe... Could you put like one of these in front of Senator Nelson? Maybe put that over there. I'm just trying to make sure Senator Brown can hear this. Could you please...the microphones are pretty good, but I'm not telling you to eat it, but try to...can you reach it from there? I'm not sure you can reach it from there. You're not going to be able to reach it. Is this better? Are we improving anything, Senator Brown? Hello? Kate? Can you hear me? I just go on. Counsel, just go on. I can't do anything with it. Go ahead. Thank you, Counsel. You've identified yourself, so please proceed. It's a basic proposition that the law cannot be copyrighted. There are a few principles that are quite so well settled. The U.S. Supreme Court held that in 1834 in a case called Wheaton vs. Peters. Reiterated that in a case called Banks vs. Manchester in 1888. And it certainly cannot be copyrighted by states. Moving to this century, the Court of Appeals in a case called VEC vs. Southern Building Codes Congress reiterated that the law is in the public domain and is not amenable to copyright. It held that anyone wanting to publish state statutes can use any copy. Laws are facts, facts cannot be copyrighted. And VEC also, apropos of what we're talking about here today, emphasized the need for access to the law. The person claiming copyright in that case said, well, it's available for inspection in a public office. People can go to the office. The Court said we disagree that the question of public access can be limited to the minimum availability that SBCCI would permit. Citizens may reproduce copies of the law for many purposes. Not only to guide actions, but to influence future legislation, educate their neighborhood association or simply to amuse. In our view to say, as Banks does, they were citing the 1834 case, that the law is free for publication to all is to expand, not factually limit the extent of its availability. We turn now, and this is the second point, to whether there is enough literature to claim a copyright interest in the light of the 1991 Supreme Court decision in the Feist case, which Mr. Johnson cited in his remarks to you. Feist holds that you can't claim originality as to facts. Facts don't become original, even when selected and arranged. You need more than a de minimis quantum of creativity and copyright rewards originality and not effort. And I respectfully submit that the ORS as it is presented has effort, but not sufficient originality. The cases that talk about copyright in the context of judicial opinions hold that creativity can only proceed in a narrow group. It's got to be accurate, so the creative is the enemy of the true. The courts also note, as Mr. Johnson did, that there are very few options available for arranging. You've pretty much got to go in numerical and alphabetical order. So I submit that these factors in the context of the law defeat any claim originality sufficient for a copyright interest. Third point that I'd like to briefly make is the ORS itself, which talks about the need for the greatest feasible access to members of the public. That's a point that the court of appeal made in the VEC case. And finally, even if there was a copyright interest, and as stated before we don't agree that there is, the use that is made by my clients is a fair use. The fair use analysis under the copyright act looks at the purpose of the use, which in this case is educational. That's a factor in favor of fair use. It looks at the nature of the work that is being used. In this case, it's all published. So again, that's a factor that cuts strongly in favor of fair use. And it looks on the effect of the market of the use that's being made. And we submit, as Mr. Malamud I think aptly explained that the use that's being made here is not going to have a material effect on any market. So in conclusion we submit that there is nothing that can be copyrighted here and we respectfully urge the committee to disclaim a copyright interest. Thank you. Thank you. Please. Senator President Courtney, Majority Leader Hunt, Mr. Johnson and others. Thank you very much for having me here today. My name is Tim Stanley. I'm the CEO of Justia. We do a number of things. We do have some marketing services for lawyers. We build websites and blogs and separately we have sort of a content legal content legal research site, which we use to put up lots of free information whether it's on the federal side or also on the state side. I also agree with Carl and Carl said that the laws cannot be copyrighted and I think one of the things to note is that the Oregon Revised Statutes the reason you have sort of an official published copy, the reason why they're cited in court cases and that's being used as the law and I think that's relatively important. It's not like a secondary treaty or something like that. This is the law that people are using to make their decisions on a daily basis. Rather than sort of go into the legal aspects, so I wanted to talk a little bit about what Justia and some of the others were hoping to do with the materials. So you have an idea of what we're thinking of towards the future. Obviously we're sort of the beginning stages of a lot of this. Carl has started some stuff with PolicResource.org to really put a large focus in getting a lot of people sort of working together on putting up a large sort of archive of case law codes, regulations and it's really now starting to bring into both the law professor, legal education community, other nonprofits and other commercial organizations and sort of annotating some of these materials and sort of creating an archive that anyone could sort of use to sort of quickly create new products, new services. With the 50 state, you know, with the state law from Oregon itself and with the states, with law from the 50 states, some of the things that we're looking to do is do certain comparisons between the different code sections. They could compare with the different family code sections or different criminal law code sections. This is both done by looking at individual sections of the codes for the different states but also sort of tagging the different sections. You can actually make a, relatively easily, you can make a quick search engine. So you can actually search across all the family codes from among the 50 states just by putting some tags in the different parts. In addition to that, and this is something where I think Oregon could probably work a little bit on is putting up all the different versions of the code. So you have the 2003 to 2001, the 1999 version of the code. Similar to, as I mentioned, the state of Florida does, because often people are looking for the code from a different year. Because the year that impacts them was back a few previous years. So right now, if you were to go on the internet and look around, you can actually find the Oregon code from 2001 to 2003. We hit it up in 2005 and actually had not put up the 2007 code yet. But it'd be nice to have the different versions up there. And once you have those up, you can have some relatively nifty things with programming and using some software to do some quick comparisons of some of the different sections as well. Longer term, I think the real key to sort of make this large, I'm going to say open source public research platform is to really get the law professors and some of the other lawyers to start annotating the cases and the codes and giving their opinions on what they believe this certain sections mean. And part of that is making sure that you want some sort of authentication of who's a law professor, who's a lawyer. And there's certain systems working on with that right now. But I think longer term, there's a lot, and I think you've seen right now the blogosphere with lawyers blogging and you've seen a lot more sort of just sort of real secondary information coming up from attorneys and other law professors especially. They're looking for a place that they can test their annotations or test their comments to. And they're looking for some of these large databases that they could actually link to or cite in some way. So I think that as we sort of put this material online and we have multiple versions, there's multiple, there's different states, there's different versions of the state code based on what year it is, not people changing the code itself. But allowing these annotations, allowing these professors and these lawyers who just love to write and love to comment on things, start commenting on it and really start building it up. I think you're going to see something that's really great for everybody. And one of the key things I think the difference between Wikipedia and some of these other sort of citation systems that we're looking at or comment sections is that we are looking at how we can authenticate to someone as an attorney or authenticate to someone as a law professor. We understand the Wikipedia articles and we're certainly not looking to put up the code itself as a wiki to allow people to go change it in any way. But the annotation stuff, I think that's something that you could, you know, if you had certain levels of authentication, you could allow lawyers to sort of get in there and start commenting on things, allow the law professors to start doing things, you know, start giving their comments. And I think it would provide a lot of value. And it's stuff that people want to do. They're just looking for a place to do it. And that platform is not out there right now. And I certainly don't think it, I mean, I don't know. I don't expect West or Laxist to actually create that and open that up for the public. You know, I could be wrong, but I don't think that's something which, you know, from the justice side, and we pull down lots, you know, we pull down lots of cases. We send everything that we have over to publicresource.org. We've shared it with lots of people, the stuff that we script and we pull down and we mark up. This is something that we're very focused on, is creating this sort of large community, sort of legal research, public policy type database. But really trying to get it going with law schools, with non-profits, and getting copies of the law school. So we really actually wanted to see if we can't get the annotations in certain XML formats so people could use it on different systems. Maybe even West and Laxist could use it, you know, as a way to tag into it. But trying to get the core information out to everyone so it's really shared and leads to some better decisions for everybody as they sort of going forward with the lawsuit. Thank you very much.