Editor’s note: University of Illinois copyright librarian Sara R. Benson, an expert on the sociopolitical implications of copyright law in the U.S. and abroad, spoke with News Bureau business and law editor Phil Ciciora about Georgia v. Public.Resource.Org, a pending U.S. Supreme Court case that will determine the legality of a state copyrighting its own laws – potentially making it illegal to republish a version of a state’s laws. The court’s final decision is expected next term.
What is the impetus for this case?
The state of Georgia’s Code Revision Commission contracted with LexisNexis, a private company that houses an electronic database of legal information and public records, to compile an annotated version of Georgia’s laws under a contract providing for specific instructions on what to include, and reserving the copyright in the annotations as well.
The commission then sued Public.Resource.Org Inc., a nonprofit dedicated to sharing public information, demanding that it stop making the annotated state code available to the public for free online.
The 11th U.S. Circuit Court of Appeals sided with Public.Resource.Org, holding that the annotations, along with the code, are in the public domain.
What’s at issue here – the ability to copyright the actual text of the law, or the ability to copyright the annotations, footnotes and other material such as explanatory notes that supplement the text of the law?
The law itself, such as the statutes and case law, is already recognized to be owned by “the people” and, as such, is in the public domain. We’re really talking about any other material that is added to the actual law, such as summaries of cases discussing the law or annotations of cases.
In the annotated statutes, the law itself is followed by summaries of cases that interpret and analyze the statutes. These annotations are highly valued by attorneys and the general public in trying to better understand what the law means when it is applied to a given set of facts.
If you think about the annotations themselves, they are summaries of public domain materials – that is, the legal cases. Even if there is a copyright there, it is a thin copyright that only covers the way the case was summarized, not the language of the case itself, which is in the public domain.
What potential implications will this case have on public access to the law?
The theory that makes the most sense to me is the one that likens LexisNexis to an agent of the state of Georgia in compiling the annotations for the code.
In that way, LexisNexis does not own the copyright to the annotations because they were written by LexisNexis at the direction of the state of Georgia. The annotations themselves are so “lawlike” that they must be considered written by the people and in the public domain, just like the text of the statutes themselves.
For example, the state of Georgia limits the amount charged for the annotated statutes to $404. This relatively low price means that both the commission and the state recognize the public reliance on the annotated code and intentionally keep costs low.
For the state, missing out on this source of remuneration would not be the issue. The larger issue is getting an outside source to compile the annotations. The main motivation for LexisNexis in compiling the annotations is its exclusive right to sell print and online versions of the annotations. Thus, while the state of Georgia owns the copyright, LexisNexis is the only entity able to sell the annotated code.
Without the copyright, the state of Georgia might have to self-produce the annotations because LexisNexis would presumably lose all motivation to annotate the code, which is already available in an unannotated fashion online for free.
If a state can claim copyright protection in the publication of its legal materials, what does that portend for the future of legal research?
It is potentially problematic. It becomes a line-drawing problem: What is “the law” and what is not?
It doesn’t seem controversial to assert that judicial opinions are the law – but what about opinions issuing from administrative agencies? A previous Supreme Court grappled with a case about a legal reporter who annotated the judicial opinions of the court and then sold them. In that case, the court found that the reporter owned the annotations because he wrote them himself and was able to sell them for a profit.
Would the court have felt differently if the judges or their clerks, acting as their agents, wrote the annotations? Most certainly. Should anyone, though, be able to claim a copyright in an annotation of a judicial opinion? Yes. The line, then, becomes when two factors are present: a sovereign body or an agent acting on behalf of the sovereign body; and a sufficiently lawlike product, such as an annotation.
What implications could the case have for public access to the law? If the Supreme Court were to side with the state of Georgia, would that effectively privatize a not-insignificant portion of the law?
If the Supreme Court sides with the state of Georgia, then companies such as LexisNexis will rejoice. In the end, they are benefitting from the sale of the official code. The state of Georgia does not benefit from it.
However, if the decision from the 11th Circuit is affirmed, it will be a win for the people. Access to the law is a right we have as citizens, and annotations are an essential part of understanding the law.