Carl Malamud, founder of Public.Resource.Org.
A tightly divided US Supreme Court upheld Monday's right to freely share Georgia’s official code. The state claimed ownership of the Official Code of Georgia, Annotated, and sued a nonprofit organization called Public.Resource.Org for online publication. Monday's decision is not only a victory for the Open Government Group, but also an important precedent that will help secure the right to publish other legally significant public documents.
"Officials who are empowered to speak to the force of the law cannot be the originators of the works – and therefore not the copyright – that they create in the course of their official duties," Chief Justice John Roberts wrote in a statement, four other judges joined the nine-member court.
Everyone involved agreed that the text of the state laws could not be protected by copyright. However, the state of Georgia argued that it could make copyright notices that are distributed with the official code. These notes contain additional information about the law, including summaries of legal opinions, information on the history of the law, and quotes on relevant articles on the law review. The comments are being drawn up by a division of legal publishing giant LexisNexis under a agency contract with the state.
Public.Resource.Org defied Georgian rules and posted all code including annotations on its website. The group argued that it could not be copyrighted as an official document of the state parliament. The state sued and won in court. The 11th Court of Appeals overturned this decision and joined the non-profit association. In an unorthodox move, PRO officials asked the Supreme Court to review the case, although this could reverse their appeal appeal because they wanted to set a nationwide precedent.
The group's gambling has paid off – but only barely. Five judges bought PRO's argument that Georgia's official code was in the public domain. Four judges disagreed and would have allowed Peach State to protect parts of its official code.
Old precedents, new technology
The Supreme Court has not ruled on the copyright status of official documents for over a century. However, some decisions taken in the 19th century said that court documents could not be protected by copyright. These cases concerned court clerks – writers selected by the courts to keep records of legal proceedings and publish them. Official clerks were more independent in the 19th century than today's judicial staff and sometimes published their own commented versions of legal opinions.
However, the 19th century Supreme Court interrupted efforts to claim ownership of content that was originally written by judges. This was true not only for (legally binding) majority opinions, but also for dissenting opinions and official summaries of judgments. At the same time, the Supreme Court ruled that clerks could enforce copyright on comments they made regardless of their official duties.
The Georgia case is about the legislature, not the judiciary. But the parallels are obvious. PRO pointed out the Supreme Court's earlier findings that official documents could not be protected by copyright. The state of Georgia countered by citing the ruling that comments may be protected by copyright.
The Supreme Court's five-justice majority was on the side of the nonprofit group. In a statement by Chief Justice John Roberts, the Supreme Court ruled that the key factor was who wrote the materials. While most of the comments were originally written by LexisNexis employees, the state legislative council had final authority over the content of the document.
The council gave LexisNexis detailed instructions on what types of material should be included, and legislators carefully reviewed each new note before approving it. In addition, the Supreme Court ruled that the Georgian Legislative Council was actually an arm of the state legislature. The group was funded by the State of Georgia and the majority of its members had to be Georgian lawmakers. Therefore, the Georgian legislator was ultimately responsible for the content of the code.
As a result, the Supreme Court ruled that a document created by the Georgian legislature cannot be protected by copyright.
Four judges disagreed
Four judges disagreed and wrote two dissenting opinions. Clarence Thomas, in a statement by conservative colleague Sam Alito and liberal Stephen Breyer, argued that the courts would stretch centuries-old precedents too far. The old decisions had been clear that laws themselves couldn't be copyrighted, Thomas argued, but it hadn't been as clear when when copyright should apply to related materials that didn't have the power of the law.
Thomas pointed out that the 22 other states have made similar arrangements to Georgia to publish their own state laws. Georgia – and a number of other states – grant a company like LexisNexis the monopoly right to publish the officially commented state code. In return, LexisNexis spends substantial amounts of money on the creation of the annotations. This type of business saves states from spending taxpayers' money to fund the annotation process directly.
Monday's decisions will force states to rethink this approach – either pay the comments in cash or stop the comments altogether. Thomas argued that it would be better for the Supreme Court to maintain the status quo and let Congress change copyright law if it does not consent to states that claim copyright for the non-binding portions of state law.
A second dissent from the Liberals, Ruth Bader Ginsburg – also signed by Breyer – took a different path. She argued that the law only denied copyright protection for works created by a legislator as part of its official duties. However, she argued that the process of annotating existing laws is inherently separate from the process of enacting laws.
"Commenting only begins after the legislation has ended," argued Ginsburg. Therefore, she argued that it did not make sense to treat comments the same way as the text of a statute.
However, one potential problem with the dissidents' approach is that it could create a legal minefield for people who want to republish the public domain parts of official documents. If Ginsburg and Thomas had found their way, Georgia's officially commented code would still be a mix of copyrighted and public domain works. That would have forced anyone who wanted to republish constitutional law to perform the tedious task of first deleting the copyrighted parts. The practical impact would be to increase the cost of providing copies of official legal documents such as the Georgia Code to the public.
The majority of the Supreme Court rejected the dissenters' narrow interpretations of previous precedents. Instead, they considered that works produced by law are excluded from copyright protection, regardless of whether or not they are directly related to the legislative process – and whether or not they are legally binding.
Disclosure:: Public.Resource.Org supported my studies financially in the 2010/11 school year.