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The Misadventure of Copyrighting State Law

Johnson, Eric E., The Misadventure of Copyrighting State Law (2019). Kentucky Law Journal, Vol. 107, No. 4, 2019. Available at SSRN: – “Many states have asserted copyright over their own official state legal texts, limiting access to those materials and attempting to monetize them. This Article aims to provide helpful analysis for state officials deciding whether to pursue such policies and for courts reviewing challenges to such practices. Prior scholarship in this area has focused on the issue of whether such copyright assertions can be valid under federal law given the inherent conflicts they pose to due process and democratic ideals. This Article aims to expand this dialogue in a couple of ways — first, by situating the controversy within the broader arc of legal history, and second, by focusing on matters of present-day practicalities and economics. In so doing, the thrust of this Article is to go beyond arguing that states must surrender their copyright claims over state legal materials and to concentrate instead on providing reasons why states should see it in their own interest and the interest of their citizens to renounce such claims. The policy arguments this Article sets out — including with regard to business behavior, political engagement, and fiscal responsibility — end up providing not merely reasons for states to abstain from aggressive copyright claiming, but also reasons for reviewing courts to deny such claims, including by way of fair use analysis.

With the aim of providing insight into matters of practicality and economics, this Article assumes that state legislators and officials are acting in good faith — and are not motivated by a desire to undermine constitutional values — when they enter into deals with private legal publishers to monetize official state legal information. The question is, then, what good-faith motivations might a state have in attempting to use copyright to put official state legal information behind a paywall? I look at the plausible answers and respond to them. One answer is that proprietary/closed-access systems are “low cost.” I explain why this is an economic misunderstanding. Another reason is a strong faith that public-private partnerships are an efficient means of delivering public goods. I explain why a public-private partnership structure in this context is problematic. Another reason is a belief that harm done by limitations on access to the law is merely of theoretical or academic concern. I explain why that is not the case…”

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