“Only one thing is impossible for God: to find any sense in any copyright law on the planet.” – Mark Twain, The Complete Works of Mark Twain: Mark Twain’s Notebook 381 (Albert Bigelow Paine ed., 1935).
Samuel Clemens’s documented frustration notwithstanding, the highest Court in the land will soon weigh in on a unique aspect of copyright law – copyrighting the law itself.
The facts seem simple enough: PublicResources.org bought a copy of the official statutory code with official annotations (OCGA), copied it and uploaded it to the internet so the public could have free access to the law. Georgia claimed copyright of the OCGA and sought an injunction against PublicResources.org. The district court held the OCGA copyrightable and granted the injunction. PublicResources.org appealed.
The 11th Circuit reversed the district court’s decision in an unanimous 58-page opinion and the U.S. Supreme Court granted certiorari on June 24, 2019 in Georgia v. Public.Resource.Org Inc. In July, a motion to extend the time to file briefs was granted (into early October). Briefing in the case will continue over the summer. The U.S. Supreme Court will likely schedule oral arguments for late 2019.
Here are three things to know about this important public access to information case:
1. Georgia’s Official Code Includes Annotations
So, who owns the law? Maybe the better starting questions are: What exactly is “the law”? And who creates it? Those alone are heavy questions that could take a lot of unpacking from a legal and public policy standpoint, let alone a copyright inquiry.
Taking the latter question first, whether it’s a legislative enactment or a judicial opinion, the People are the constructive authors of official promulgations of government. And because they’re the creators, the People are also the owners. The works are intrinsically public domain material and, therefore, uncopyrightable. As a recent New York Times editorial board opinion piece put it:
Americans deserve free and easy access to public records of all kinds, including court documents. But access to the law is the most important of all: Democracy depends on it. Keeping the law free of copyright is the first step.
But is this a question of public access to information produced by the government? Or a question of rights over an original work (something new that’s more than just the law) created by a business for the government? Because here we’re not just talking about the laws of Georgia published online (that’s already available online from Georgia via LexisNexis for free). This case is about the annotated version of Georgia’s code that was created by Lexis for Georgia.
Georgia joins 21 other states, two territories and the District of Columbia with annotations in their codes and in asserting copyright to them. This includes Arkansas, Alabama, Idaho, Kansas, Mississippi, South Carolina, South Dakota and Tennessee who’ve joined in an amicus brief. Together they argue that they need the copyright because they need to sell (read: control) their official annotated codes so third-party companies will continue to produce the annotations, a “valuable research tool to understand the law.” These companies sell the annotated codes and pocket the revenues or share them in part with the states. If copies were available for free, states might have to pay the companies for their service, or the market would be eliminated and the “service” might cease.
Georgia and its fellow states concede that there can be no copyright in the law itself because copyright only subsists in “original works of authorship.” 17 U.S.C. 102(a). The ultimate authors of the law are the public at large, rather than the legislature or judiciary. Yet, the annotations are more than just the law – they’re nonbinding additions that have never before been held uncopyrightable by any court.
Mind you, this wasn’t a case of simply changing page numbers and slapping a © on it. See Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991); Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection). The OCGA includes the statutes, section titles, statutory histories, guidance from the Georgia Code Revision Commission, judicial summaries and opinions by the state attorney general, for example.
The 11th Circuit’s opinion puts much weight into the merger argument – that the work of Lexis in the annotations are merged with and into the code to create the OCGA itself. While the annotations don’t have “the force of law in the way that the statutory portions of the Code do,” the Georgia legislature expressly chose to merge the annotations with statutory text to create a single edict. In short, the law is the law.
2. The Government Edict Doctrine
The People are the author, the creators of certain governmental works including laws, says authority dating back more than 180 years. The government edicts doctrine is a judicially-created exception to copyright protection prohibiting certain government-created works from being copyrighted, such as judicial decisions and statutes.
For example, the U.S. Supreme Court has held, as a matter of “public policy,” that judicial opinions are not copyrightable. Banks v. Manchester, 128 U.S. 244, 253-254 (1888). That same year, the court found that decisions’ syllabi were original works of the author in Callaghan v. Myers, 128 U.S. 617 (1888).
In Banks, the court held that syllabi and headnotes prepared by Ohio Supreme Court justices themselves were not copyrightable. Whereas in Callaghan, the court held that, in the absence of a statute to the contrary, public policy didn’t prohibit a reporter of cases from obtaining a copyright to protect its own work added to the decisions in the law report volumes.
What guidance do these 130-year-old cases provide? Or, can the facts of how Georgia’s official annotated code was developed be sufficiently distinguished from these landmark cases to uphold the 11th Circuit’s reversal?
3. Agency Law Vests the People
Who you don’t see as parties to this lawsuit are the major players in legal publishing, Lexis and West Publishing Co. (wholly-owned subsidiaries of Reed Elsevier and Thomson Reuters, respectively). This may seem odd because, as Ed Walters, CEO of Fastcase, puts it, “As a practical matter, the only people who have exercised these [copyright] rights have been Thomson Reuters and Reed Elsevier.” (Actually, now, that same Fastcase has been involved in an ongoing legal dispute with Lawriter dba Casemaker over the right to freely publish the Georgia Administrative Rules and Regulations.)
The OCGA is published by Lexis, but its contents are particularly controlled by the Georgia General Assembly and the Commission (a division of the Assembly). The State of Georgia is the petitioner, and in the context of agency law, the principal of the relationship. As the 11th Circuit enumerates, Georgia:
- Provides instructions to Lexis about how the annotations should be created, compiled and arranged;
- Requires Lexis to create a free, unannotated, online version of the code for use by the general public;
- Sets the pricing Lexis can charge for the OCGA ($404 for the 28-volume set);
- Grants Lexis an exclusive right to produce and sell print, CD-ROM and online versions of the OCGA;
- Ensures royalties on the sale of CD-ROM and online versions of the OCGA are paid to Georgia (Lexis gets to keep royalties from the sale of print volumes).
The degree of control and direction by the Commission played an important role for the appellate panel.
In short, the Commission exercises direct, authoritative control over the creation of OCGA annotations at every stage of their preparation. The Commission provides initial instructions to Lexis, directly supervises Lexis’s work throughout the preparation process, and must give its final editorial assent to the annotations before they can become part of the OCGA. In this way, the Commission undeniably controls the creation of the OCGA annotations.
Under basic tenets of agency law, “works made for hire” in an employer-agent relationship attribute the ownership to the employer. Just as legislative and judicial agents work at the will and for the benefit of the People, so do private publishers.
PublicResource.org is expected to maintain that Lexis could have no more claim to copyright than the contracting agent could. And, while Lexis is not a party, it goes to the defining of “the law” in this instance. Ergo, if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher and then attempt to retake those property rights back.
Impact on Access to Justice
Whether you’re a law librarian or the general public, this U.S. Supreme Court decision will impact how you access laws, rules and regulations, and at what cost, if any. Can you easily access your state laws? Your local municipal code? The International Building Code version adopted by your local government? And so on.
Where does the line fall between the law created by and for the People and the commodities developed by businesses? Stay tuned!