Originally published at: https://boingboing.net/2019/04/25/happy-law-day.html
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If ignorance of the law is not an valid defence then charging to see the law is not a valid way to govern.
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I wonder if anyone’s tried that as a defense?
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But being unable to make a buck is unAmerican, dammit.
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I have heard that the Don’s campaign conspiracy with Russians is one of the few areas where ignorance of the law is a valid defense. You can see why he might have an interest in keeping the law secret.
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I have been a supporter of Malamud’s efforts for some time, but I think the appeal to fairness falls short in communicating the real danger here one notable regard: It’s not just that copyrighting something means people have to pay for it (which, here, is obviously despicable in its own right, since, c’mon, people should be able to freely access the rules under which they must live). It’s far worse. Conceding that the State can own the copyright to its laws grants the State a series of monopolies on that material, meaning not only can they charge for it, but they are in a position to exert other requirements that are not at the core of copyright (i.e., they are not about the rights in Sec. 106, but are peripheral controls they can exert through licensing). They could simply refuse to license it to certain people or groups - i.e., not only can they charge you, they can leverage their copyright, a law intended to govern printers, to make sure you cannot access it.
Let’s say that the State enters into a deal with a printer. Nothing would stop them using their monopoly to purposefully keep the law from individuals or groups that the State would like to keep disenfranchised. For example, they could make a deal with a printer of the materials and insist that as a condition of granting the license required to print the book, the printer must impose controls on its downstream distribution, including using the same restriction more broadly (think of this as a viral restriction, like an MFC/MFN clause to preventing dissemination), to ensure that these laws do not end up in a prison library. After all, all those habeas petitions from prisons, where prisoners have the time (which the public defender didn’t have) and resources to figure out which of their rights were violated, even if unsuccessful, cost a lot to defend against.
Let’s go further: What’s to stop the State from using Federal copyrights to cripple its own open records requirements? They could say, “sure you can get the records, but they are copyrighted, so if you want to publish them you need a license, and well, that’ll cost you a cool billion.” You could argue that it’s a rare instance of wholesale copying being a fair use, but that’s an expensive gamble. Expensive to play, expensive to win, expensive to lose. Not ideal for small journalism houses, etc.
Counsel for a party actively advertising for signatories to an amicus brief they’re not allowed to participate in the preparation of? This probably doesn’t run afoul of the letter of Supreme Court Rule 37(6), but it certainly is questionable in terms of the rule’s spirit.
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