Courts, Intellectual Property

Can A State Copyright The Law? SCOTUS Will Decide

What makes the case difficult is that the publication at issue falls in a grey area between two well-established lines of precedent.

By  
on

(Image via iStock)

The Supreme Court last week agreed to hear a case with potentially far-reaching implications for the future of legal research, presenting the question of whether a state may assert copyright in the publication of its legal materials.

“Answering this question,” said the Eleventh U.S. Circuit of Appeals in deciding the case being appealed, “means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives.”

What makes the case difficult is that the publication at issue falls in a grey area between two well-established lines of precedent. On one hand, it is well established that governments may not claim copyright in “government edicts,” such as cases, statutes, and regulations. On the other hand, it is equally well established that private publishers may claim copyright in explanatory and supplementary material they author, such as annotations and headnotes.

The case, Georgia v. Public.Resource.Org, involves the state of Georgia’s claim of copyright in the Official Code of Georgia Annotated (OCGA), the official codification of Georgia’s laws, which is published by LexisNexis under contract by the state, and which includes annotations written by LexisNexis, but subject to editorial control and approval by the Georgia Code Revision Commission.

In 2013, Carl Malamud, CEO of Public.Resource.Org, a site devoted to making government information more accessible to the public, paid $1,207.02 to purchase the entire print set of the OCGA. He then scanned the set and posted it to his site. He also sent copies on thumb drives to various Georgia legislative officials and distributed copies to other websites.

The Code Revision Commission sent Malamud multiple notices demanding that he take down the materials and cease and desist from publishing them. When Malamud refused, the commission, on behalf of the Georgia legislature, filed suit in federal court in Atlanta.

Sponsored

In the district court, Georgia prevailed. The court granted partial summary judgment, concluding that the annotations lack the force of law and are therefore not public domain material. The court also rejected Public.Resource.Org’s argument that its publication was protected by the fair use doctrine.

The Eleventh Circuit reversed, concluding that Georgia could not assert a valid copyright interest in any part of the OCGA.

[W]e conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. … As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable.

In its petition for Supreme Court review, Georgia argued that the annotations to the Georgia code lack the force of law and therefore are not subject to the government edicts doctrine. It argued that the Eleventh Circuit’s interpretation was a “novel expansion” of the doctrine and is at odds with the decisions of four other federal circuits.

The Eleventh Circuit’s decision, said Georgia’s petition, “threatens to upend the longstanding arrangements of Georgia and numerous other states that rely on copyright’s economic incentives to create and distribute annotations useful to guide legal research, while ensuring that the states’ laws are widely disseminated and easily accessible.”

Sponsored

In its response to Georgia’s petition, Public.Resource.Org supported the request for Supreme Court review, citing confusion and inconsistency among lower courts in applying the government edicts doctrine, but it argued that the Eleventh Circuit’s opinion was correct.

Here, the State of Georgia decided that its only official code should be annotated. The state itself oversaw the preparation of the work, even though it farmed out to an experienced code publisher the labor of organizing the statutes and drafting the annotations. The state registered the copyright in the annotations in its own name, compensating the publisher only by giving it an exclusive license for a limited term.

Georgia is one of only nine states that include annotations as part of its official legislative code. But at least 20 states have registered copyright in all or part of their codes. States and private publishers also claim copyright in various other government-related legal materials. For this reason, legal publishers on both sides of the issue are hoping the court will lay to rest any confusion about the applicability of copyright to the law.

The court’s ruling could affect other pending litigation. Two legal research companies, Fastcase and Casemaker (via its parent Lawriter LLC), have been engaged in litigation for a number of years over Casemaker’s claim of copyright in Georgia administrative regulations. Last October, the Eleventh Circuit reversed a lower court’s summary judgment for Casemaker and remanded the case for further proceedings.

And in 2017, a federal court issued a permanent injunction barring Public.Resource.Org from publishing technical and scientific standards that are written by private standards developing organizations (SDOs) but that are incorporated by reference in the Code of Federal Regulations.

More broadly, the decision could have broad implications for access to law, say a group of law students, law professors, and small-firm lawyers in an amicus curiae brief supporting the Eleventh Circuit’s opinion. Unfettered access to the law is required, they argue, for law students to learn, legal educators to teach, and lawyers to advise their clients competently.

The decision could also impact the future of innovation and accessibility in legal research, say a group of “next-generation” legal research platforms and a digital accessibility advocate who also filed an amicus brief. Allowing copyright in legal materials, they argue,

hinders the valuable work being done by legal innovators, like amici, who create tools to inform and empower the public and everyone in the legal field. Amici’s innovative tools increase access to the law and to justice; they also improve the efficiency and quality of legal advocacy and legal services through an array of sophisticated new research, distribution, visualization, and predictive analytics tools.

Even some of the publishers who currently benefit from these copyrights argue that the current state of uncertainty in the law could inhibit innovation and investment in legal research products. The Software & Information Industry Association — of which LexisNexis is a member — filed an amicus brief arguing that, because of this uncertainty, “SIIA’s members will necessarily be discouraged from investing in the production of law-adjacent works.”

Many entities have stakes in the outcome of this case. The governments that claim copyright. The publishers that own the licenses. The non-profits that seek to distribute these materials. The next-generation research companies that want to fill out their libraries.

But in the end, the Eleventh Circuit got it right when it described the significance of this case as one that implicates “the rights of citizens to have unfettered access to the legal edicts that govern their lives.”

Robert Ambrogi Bob AmbrogiRobert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

Topics

, , , , , , , ,