Supreme Court

Supreme Court Rules That Georgia Can't Copyright Its Annotated Code

A long-running legal battle ends with a victory for open government.

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The U.S. Supreme Court ruled 5–4 today that the state of Georgia can't claim copyright over its annotated code.

The ruling is a victory for Carl Malamud, an open government activist who posted the state's annotated code online in 2013. Malamud and his organization, Public.Resource.Org, have been working for more than a decade to digitally liberate state laws and regulatory codes.

State governments often claim they must copyright the works to recoup the costs of researching and printing the voluminous editions. Georgia contracts with LexisNexus to research and distribute the annotated codes. LexisNexus then gets exclusive rights to publish the codes, while Georgia gets a cut of any sales. The non-annotated codes are available for free, but the hardcover annotated set costs $412.

Malumud and transparency groups say that flies in the face of precedents that the law cannot be copyrighted. Under the "government edicts doctrine," this applies to judicial opinions, legislative statutes, and other writings that have the force of law. As a matter of public policy, citizens must be able to inspect the laws they are bound by, and no one can claim authorship or ownership of them. In short, they belong to the people.

After Public.Resource.Org posted Georgia's annotated code online for free, the state sued Malamud in federal court in 2015. A U.S. District Court judge ruled in favor of the state in 2017, finding that the annotations were only commentary and didn't carry the force of law. The 11th Circuit Court of Appeals reversed that decision, setting up a circuit split and a showdown at the Supreme Court.

"Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties," Chief Justice John Roberts wrote in the Court's majority opinion. 

The majority opinion found that, even if the annotated codes were non-binding, they were still created by the legislative branch in its official capacity and therefore were exempt from copyright.

Roberts warned that, if Georgia's interpretation prevailed and non-binding materials could be copyrighted, "the 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."

In a statement to Reason, Malamud says he and his organization are "very pleased with the decision and look forward to getting back to work making the Official Code of Georgia more readily accessible and usable for the people. We'd like to extend a hand to the State of Georgia and once again offer any assistance we can as they make the laws of the great peach state available to all."

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  1. A Pyrrhic victory. You may not have to pay the state to find out what the law is, but you still have to pay a lawyer.

    1. Perhaps but anytime the government gets (relatively) smacked down by SCOTUS, I’ll take it.

    2. Not really. This lets it be published for free.

      The state should never charge the law.

      And we can fix the lawyer issue separately (make law more understandable and eliminate the unconstitutional requirement that only lawyers can practice law).

  2. LexisNexus

    LexusNexis

    /yes, I know that’s wrong too.

  3. Interesting split: Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh versus Thomas and Alito in one dissent and Ginsburg and Breyer in another dissent.

    1. Predictable – statists in dissent, but their Twitter followers wouldn’t stand for them all to be on the same opinion saying “obey your government betters” since two would be racists/Nazis or hippies/anarchists when they said it.

  4. Roberts warned that, if Georgia’s interpretation prevailed and non-binding materials could be copyrighted, “the 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.”

    And if you look to your left and look to your right, Chief Justice, you may notice that half the people you’re looking at disagree that this particular annotation of the law you just created has illuminated the law we are all presumed to know and understand a damn bit. If you and your fellow Justices can’t agree on the clear meaning of the law, how the hell are the rest of us to divine the meaning?

    Oh, and never mind that you just recently said in the Heien case that “we all” doesn’t include the police officers who are entrusted to enforce the laws the rest of us are presumed to know and understand.

  5. A simple economics question, if no one can control and profit from annotating statutes any more, who from here forward is going to annotate statutes?

    1. Anyone who does not work for the government may control and profit from the works they author. There are people, even with law degrees, that don’t get a government paycheck

    2. From this comment, “even if the annotated codes were non-binding, they were still created by the legislative branch in its official capacity” — I gathered it was gov who made the annotations to begin with?

      1. That comment pertains specifically to the set in this case. The government created THIS set of annotations.

        Nothing stops a private company from employing staff, doing research, and writing (and copyrighting) their OWN annotations on the basis of that research. If I am not much mistaken, that is what West does with the US Code, which is why they get away with charging $23,000 for the full USCA.

  6. 4 justices think the gov’t can charge you to read the laws

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