The Supreme Court’s recent ruling in Georgia v. Public.Resource.Org set an important precedent cementing the axiom that “no one can own the law,” by holding that states and private companies cannot copyright the law. But just because SCOTUS established that the law cannot be copyrighted, doesn’t mean that there aren’t still significant barriers impeding access to the law that are yet to be fully overcome.
In this article, we’ll discuss the key holdings in SCOTUS’ 5-4 decision. We’ll also put this new precedent in our current context and discuss the lingering obstacles that hinder legal innovation and continued progress in the legal profession.
SCOTUS Lands the Plane
In a previous article published this past November, we discussed the Ninth Circuit’s watershed ruling in hiQ v. LinkedIn, an overwhelming affirmation that the public has a right to access public data even when done so through automated means. At that point, the Eleventh Circuit had also recently ruled in favor of open access to legal data in Georgia v. Public.Resource.Org. We stated in our article that although “the facts could not be clearer in favor of open access in hiQ and Public Resource, the fight is not yet over . . . SCOTUS needs to land the plane to once and for all assert that the law can’t be copyrighted.”
Since then, the plane has touched down and settled the long-debated question of whether the law can be copyrighted.
Officially decided at the end of April, SCOTUS in Public Resource firmly holds that materials authored by judges and legislators cannot be copyrighted. In so holding, SCOTUS based its decision on an existing framework of precedent, one that deems the author of a work more determinative than the type of work when it comes to the question of its ownership.
As the majority states, “[i]nstead of examining whether given material carries ‘the force of law,’ we ask only whether the author of the work is a judge or legislator,” concluding that “whatever work [a] judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.” This statement could not be clearer: if it was authored by an individual or group with legislative or judicial authority, it is law, and it is not copyrightable.
Though the ruling rests heavily on the existing framework of precedent without considering whether the materials carry the “force of law” it is nonetheless expansive and weighty. It affirms that the law cannot be copyrighted, whether published by judges, legislators, or by third parties at their behest. The law is no longer reserved only for the elite, with an “economy-class version” of the law available for the public. It is available for everyone to read, digest, and process – or at least, it should be.
As SCOTUS noted, if everything short of statutes and opinions were copyrighted, then the bleak outcome would be that “[t]he less bold among us would have to think twice before using official legal works that illuminate the law we are all presumed to know and understand.” The absurd result? Potential criminal liability and devastating civil penalties for attempting to access and/or publish publicly available law.
Technical and Financial Barriers to the Law Persist
Although Public Resource is a historic win for open data advocates, it still leaves substantial issues unresolved. The law cannot be copyrighted, but nonetheless, technical and financial barriers prevent free, open access to law and legal data that is now unquestionably public. In other words, significant and, in some cases, insurmountable hurdles are currently barring full access to publicly available legal data.
For instance, consider data aggregators such as legal research providers seeking bulk access to state court records or state statutes, who are hampered by technical barriers preventing data gathering through automated means or terms of service threatening criminal and civil penalties. Even if they can’t copyright the law, public and private actors can, and still do, actively stymie legal tech companies seeking bulk access to data through data mining, by erecting technical obstacles that are costly to overcome or greatly impede the amount of information that can be obtained through automated means.
These actions continue to undercut competition and innovation in the legal profession, even with the Ninth Circuit’s decision in hiQ v. LinkedIn, affirming the public’s right to access publicly available data through automated means.
However, technical barriers are not the only thorns cutting away at improved access to legal data. As SCOTUS noted in Public Resource, “if everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit.” SCOTUS even went so far to note that, “States might even launch a subscription or pay-per-law service.” Unfortunately for attorneys and the public at large, this is already happening, and has been for decades.
For example, while some exemplary states like Florida do not charge for online access to court documents, most states and individual counties within those states do require paying a fee for downloading what in effect is a public, non-copyrightable government record. And often, these “pay-per-law” fees are exorbitant and prohibitive, especially when downloading documents at scale for developing accurate legal research tools and legal analytics.
State policies notwithstanding, we need look no further than PACER for a practical example of the monetization of the law. The multi-million dollar cost of downloading the PACER data needed to build competitive legal research analytics products is a massive barrier not only for legal tech companies with innovative ideas, but also for law firms, legal aid providers, and others in the legal industry, who need access to federal court data to serve their clients’ needs.
Though the plane may have landed thanks to SCOTUS, it hasn’t reached the hangar yet. A vital part of the mission to ensure that “no one can own the law” remains unresolved: the law cannot be copyrighted, but until technical and financial barriers to the law are removed once and for all, they will continue to impede progress and stifle innovation in the legal field. Open law advocates will need to press onward.
Josh Blandi is the CEO and Co-Founder of UniCourt, a SaaS offering using machine learning to disrupt the way court records are organized, accessed, and used. UniCourt provides Legal Data as a Service (LDaaS) via our APIs to AmLaw 50 firms and Fortune 500 businesses for accessing normalized court data for business development and intelligence, analytics, machine learning models, process automation, background checks, investigations, and underwriting.
