Only two weeks after lawmakers in Sacramento passed a budget, the state is already in the red. As Gov. Schwarzenegger and the Legislature debate more spending cuts and accounting tricks, another solution may be right in front of them: more laws. In California, government owns the laws and forces people to pay for a copy. Therefore, the more legislation and regulations the state creates, the more revenue it generates.
Sacramento collects nearly $1 million a year from these transactions, but how can anyone claim to own the law? Legislators and regulators assert the same copyright protections on their work as artists, musicians and performers. Unlike creative endeavors, laws are rarely original, unique or culturally valuable. As long as they are copyrighted, however, it is illegal to make or distribute copies without permission. Therefore, transferring California’s “latex foam rubber and filling regulations” to an iPod would trigger the same penalties as pirating a hit single or blockbuster movie.
By selling laws for profit, the state operates a shakedown racket on its own residents. The government expects citizens and businesses to be law-abiding, yet it forbids them from distributing the very laws they must follow. Unless they pay a fee, they risk inadvertently violating an obscure law and incurring fines, lawsuits or arrest. Because the government holds a monopoly on lawmaking, the state and its private partners can charge exorbitant prices. For instance, downloading the 38-volume California Code of Regulations costs $1,556. How does the government justify this extortion? According to the agency that compiles state laws, “we exercise our copyright to benefit the people of California.”
In other words, Californians benefit by paying twice for the same laws. Taxpayers already provide ample support for policy makers to do their jobs. Legislators receive a salary more than three times the state’s median income, in addition to perks such as a pension, an allowance for lodging and meals, and state-issued vehicles with unlimited free gas. Lawmakers work for the people, and they have very generous bosses. By copyrighting the work of public servants, California charges the people a new tax on laws they’ve already paid for.
In addition to extorting and short-changing the taxpayers, extending copyright protection over public policy creates a perverse incentive for writing more laws and regulations. Because individuals and businesses must purchase updates every time the rules change, more changes guarantee more revenue. As a result, Sacramento lawmakers and bureaucrats introduce a torrent of new proposals, many of which have questionable purpose or utility.
During its most recent session, for instance, the Legislature considered more than 5,000 bills, including detailed instructions for bathing elephants (AB 777), a ban on possession of felt-tip markers (AB 2816), and a change in the definition of metal knuckles to include implements made out of paper (SB 1162). To make matters worse, nearly 10 percent of all bills introduced offer only minor grammatical changes to existing laws.
Copyrights encourage lawmakers to work feverishly drafting meaningless legislation. On important issues such as passing this year’s state budget, however, they delayed for a record 85 days. These distorted priorities help explain why the Legislature currently faces its lowest approval rating in California history.
Giving the laws back to the people will deter this irresponsible behavior by increasing government transparency and accountability. Instead of locking the codes away in proprietary databases, allowing free and open access empowers every resident to contribute in the lawmaking process. Collaborative technologies such as wikis can harness the collective intelligence of the people to expose waste and suggest creative policy solutions.
One California resident, Carl Malamud, has already challenged the state to hand over its laws. In September, he defied copyright protections and published 33,000 pages of regulations on his Web site for all to see. In June, Mr. Malamud and his supporters successfully pressured the Oregon Legislature to liberate its laws. California should quickly follow suit. In a government of, by, and for the people, laws shouldn’t come with two price tags.
Daniel R. Ballon is the public policy fellow in technology studies at the Pacific Research Institute.