When the Law Sits Behind a Paywall: Georgia v. PublicResource.org
Earlier this month, CDT and the Cato Institute filed an amicus brief in the case Georgia v. PublicResource.org. In this case, the Supreme Court will consider whether annotations included in the Official Code of Georgia Annotated (OCGA) are “edicts of government” and therefore not subject to copyright. CDT also filed in the lower court and still believes the answer to this question is “yes” because the OCGA bears the state’s designation as the only authoritative source of law. This might seem obvious—the law should not be and need not be protected by copyright—but it is the inclusion of annotations that creates the legal uncertainty here.
The Georgia legislature drafts and votes to approve the text of the state code. There is no question that this code is not subject to copyright protection. But the OCGA also includes annotations that help to explain and clarify the law. For example, the text of a statute may be annotated to indicate which court cases have interpreted the provision, when the text was last amended, or whether the statute has been ruled unconstitutional and is no longer enforced. These annotations are added to the code by part of the legislative branch, working in conjunction with a private company, LexisNexis.
The state should not need the protection of copyright to publish the law.
The state claims copyright to these annotations, but then grants an exclusive license to Lexis to publish the annotated code. Lexis offers print copies of the OCGA for sale at about $400. It also offers free access to an online version of the code, but makes this access subject to the user’s acceptance of the LexisNexis terms of use, privacy policies, and other conditions. In effect, Georgia gives the OCGA to Lexis so that Lexis can earn revenue by publishing the code. Georgia claims that this is its method of making the code available to its citizens and that Lexis would not want to make the annotations unless it can recoup its efforts through sales of the OCGA.
But as we say in our brief, the state should not need the protection of copyright to publish the law. If Lexis wants to sell an annotated copy, it is free to do so. But by making the annotated version of the law the official version, Georgia changed the annotated version into an “edict of government” for which there is no copyright. Both Lexis and Georgia know that legal professionals need to refer to the official code, and as one court stated, “anyone citing [any other compilation of Georgia law] will do so at his peril.” So by exclusively licensing the annotated code to Lexis, Georgia guarantees a captive market for the only company allowed to sell copies of the code.
Of course, lawyers are not the only people who need to know what the law says; everyone living in, doing business in, or even just passing through the state is legally bound by that code and responsible for understanding and acting in compliance with it. Enabling a private company to control access to the official state code does not make that easier. Indeed, the exclusive license arrangement (made possible by copyright protection) runs counter to the state’s interest in having a well-informed citizenry, as does the state’s lawsuit against PublicResource.org for its efforts to make the official state code available to everyone, for free.
CDT’s brief also illustrated for the Court that copyrighting official codes undermines the grand bargain of copyright protection. The idea behind granting copyright protection is this: the public benefits from having access to and use of new ideas and artistic expressions, so we give authors a temporary monopoly in the market for their works to encourage them to make more. Or put differently, we impose a cost on the public by keeping new works out of the public domain for a while because we think the long-term benefits from the creation of new works (encouraged by monopoly protection) outweighs the cost. But granting a monopoly in official codes changes the calculus—governments do not need the incentive of copyright protection to make laws, so copyrighting codes comes at a cost to the public with no corresponding public benefit.
Edicts of government are not subject to copyright, regardless of who drafts or annotates them, because everyone should be able to access the law and no one should own it.
Finally, the brief points out that anyone wishing to access the OCGA on the Lexis site must first agree to Lexis’s terms of service (TOS) which, including the referenced privacy policies and supplemental policies, would take more than four hours to read. The TOS also reserve the right to track users as they navigate through the code and to notify law enforcement of any suspected illegal activity. So use of the Lexis-hosted OCGA not only binds users to tens of thousands of words of legal conditions, it also creates a digital record of everything they search and view which could reveal sensitive information about the users and indicate their interest in particular aspects of the law.
This is fundamentally different than accessing the code at a library, which allows a far greater degree of anonymity, but Lexis only distributes 64 copies for public use throughout the state. For reference, there are 159 counties in Georgia, so even if each of the 64 copies were evenly distributed (which they are not), only about one third of counties would have a copy. Everyone else must either access the online version and agree to the terms of service or purchase their own copy.
This case has been working its way through the judicial system for years, but the Supreme Court will finally hear oral arguments on December 2. CDT sees the solution as a fairly simple one: designating a particular version of a state code as the official, authoritative version makes that version an “edict of government.” Edicts of government are not subject to copyright, regardless of who drafts or annotates them, because everyone should be able to access the law and no one should own it.
Thank you to Marta Belcher, Monica Ortel, and James Rickard at Ropes & Gray for representing CDT on this brief.
