Supreme Court Reminds States That Citizens Own the Law in Georgia v. Public.Resource.Org
On Monday, the Supreme Court released its opinion in the case of Georgia v. Public.Resource.Org, in which the State of Georgia sued the owner of a website for offering a free digital version of the state’s laws, claiming copyright infringement. The Court found that legislators, when acting in the course of their duties, cannot be “authors” for the purpose of copyright and therefore are not capable of creating copyrightable works. This overly-formal reasoning is based on a simple idea: people elect and pay legislators to create laws for them, so the law belongs to the people. Then how could Georgia have claimed that making a copy of the Official Code of Georgia Annotated (OCGA) was a copyright infringement? Because of the annotations.
Notes (even the boring legal kind), when composed by authors with a sufficient amount of creativity (a very low bar), are copyrightable. Indeed, selling annotated versions of legal codes, which include information such as summaries of relevant judicial precedent, has long been a source of income for publishers. Over time, publishers began partnering with state legislatures in this enterprise, deriving benefits from the exclusivity of having governments designate their annotated codes as THE version to be referenced in legal documents. This arrangement helped publishers sell copies of their annotated code books to legal professionals who must either cite to the “official” code or risk embarrassing and potentially harmful inaccuracies by referencing a different version. But it also helped states, who came to rely on private publication of their laws rather than funding publication with tax dollars.
Sadly, giving private companies exclusive rights to publish the only version of the law recognized by the state rests on the implicit assumption that most people do not really need to know the law. This is wrong. Knowledge of the law, or at least free access to it, is fundamental to both due process and a well-ordered, democratic society; if citizens are expected to comport with the law, they must be able to know it. Yet until Monday, citizens of Georgia, and many other states, could only access their state laws by either paying hundreds of dollars for printed copies, traveling great distances to find a library with a copy of the code (around 60 CD-ROM copies are distributed across Georgia), or agreeing to extensive terms (at the expense of their own privacy and confidentiality) to view a digital version of the code on the private publisher’s website.
Further, states do not need the incentive of copyright protection to produce laws. Controlling the reproduction and distribution of the law does not “promote the progress of science”—copyright’s constitutional purpose. As Joe Patrice notes at Above The Law, “it’s difficult to imagine the people who fought a war against a Star Chamber monarchy meant for this power to allow state governments to keep people in the dark about the law.” Leveraging copyright protection to outsource the publication of the law is more than just unnecessary, it undermines the purpose of both copyright and democratically produced legislation by withholding access to the law.
CDT highlighted these points and more in briefs before the 11th Circuit and the Supreme Court and is extremely pleased that the majority of the Court agreed. The Court itself illustrated the importance of access to the OCGA, compared to the unofficial, statute-only version:
“Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court.”
The Court’s reasoning, which this author finds appealing in its simplicity and applicability, deviated from that of the lower courts.
“Instead of examining whether given material carries “the force of law,” we ask only whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”
This two-step assessment not only addresses the problem at hand, but forestalls many other potential outcomes that run counter to open government ideals and due process. As the Court notes:
“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. 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.”
This approach also reduces the possibility that future courts could wind up trying to split hairs, dividing legislative annotations into subsets of copyrightability based on whether (or how much) they carry the force of law. Such an approach would not have stopped states from claiming copyright in annotated codes, and would not have added the degree of clarity and certainty as the Court’s chosen path.
Now that Georgia’s model is broken (at least the parts that relied on copyright protection), states may choose alternative methods of publishing laws. We understand that this may require spending tax dollars, but we believe the creation and publication of laws are primary functions of government and fundamental elements of the social contract. We also know that digital publication is relatively cheap, with marginal costs approaching zero, and offers greater access to more people. Case in point: petitioners in this case offered global access for free.
Finally, the Court’s opinion does not affect private publishers’ ability to create, copyright, and sell annotated versions of legal codes-— they remain free to do so. But no one can claim copyright in material produced by legislators or judges while in their official capacities.
The law belongs to the people. It seems strange that the Supreme Court needed to say it, but we are glad they did.
