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The case will have implications for 22 states that have copyrights on their annotated codes.
The state of Georgia cannot copyright its annotated legal code, the Supreme Court said Monday in a ruling likely to upend states’ agreements with third parties to produce those documents.
The high court’s 5-4 decision, which upholds an appellate court ruling, found that annotations explaining Georgia’s collected state laws are “outside the reach of copyright protection” because they “are authored by an arm of the legislature in the course of its legislative duties.”
“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,” wrote Chief Justice John Roberts in the court’s opinion. “A state could monetize its entire suite of legislative history. With today’s digital tools, states might even launch a subscription or pay-per-law service.”
Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh joined the majority opinion.
The ruling is expected to have widespread implications, as 22 states and the District of Columbia have copyrights for their annotated codes.
The case stems from disagreements Georgia had with the operator of the website Public.Resource.org, which provides free access to legal documents. The state’s official code is available to the public for free, but Georgia has an agreement with the data collection company LexisNexis to allow it exclusive access to sell volumes of the annotated version. Under the agreement, the company writes the annotations under the supervision of the state’s Code Revision Commission and sells volumes of the annotated code for $412. Georgia’s receives royalties from those sales.
Carl Malamud, the operator of Public.Resource.org, had purchased copies of the annotated Official Code of Georgia and published it online for free. He said the decision would allow his website to continue making the law available to the public.
“You can't have the rule of law without having access to the law itself,” he said in a statement.
The Georgia Office of Legislative Counsel did not return a request for comment.
Eight other states—Arkansas, Alabama, Idaho, Kansas, Mississippi, South Carolina, South Dakota, and Tennessee—sided with Georgia in the case, arguing that without copyright protection they may not be able to afford to produce the interpretations of the state code available in the annotated version.
Justice Clarence Thomas highlighted that concern in his dissent.
“The majority’s rule will leave in the lurch the many states, private parties, and legal researchers who relied on the previously bright-line rule,” he wrote in the dissent joined by Justice Samuel Alito Jr. and in part by Justice Stephen Breyer. “Perhaps, to the detriment of all, many states will stop producing annotated codes altogether.”
Justice Ruth Bader Ginsburg wrote in her own dissent that writing annotations “is not done in a legislator’s law-shaping capacity” and therefore should be copyrightable.
Annotated codes can still be produced for profit and fall in line with the ruling, but it depends on who authors the document, said copyright and trademark attorney Jeffrey Cadwell, of the firm Dorsey and Whitney.
“If legislators produce work product (either on their own or by virtue of a work for hire agreement that deems the legislators to be the author) when acting within their legislative capacity, then the government edicts doctrine applies, and there is no copyright protection,” he wrote in an emailed statement. “But if a private party produces the work product, then the government edicts doctrine does not apply, and copyright protection is available.”
Overall, the ruling was seen as a victory for public interest groups, said Meredith Rose, policy counsel at the Washington, D.C.-based non-profit Public Knowledge.
“Today’s decision is a resounding victory for public access to the law,” Rose said. “Citizens have a fundamental right to access the law in its entirety; copyright law cannot, and should not, stand in the way.”
Andrea Noble is a staff correspondent with Route Fifty.