Supreme Court Rules Georgia Can’t Put The Law Behind A Paywall

from ars technica

A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. The state claimed to own the copyright for the Official Code of Georgia Annotated and sued a nonprofit called Public.Resource.Org for publishing it online. Monday’s ruling is not only a victory for the open-government group, it’s an important precedent that will help secure the right to publish other legally significant public documents.

“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,” wrote Chief Justice John Roberts in an opinion that was joined by four other justices on the nine-member court.

Everyone involved in the case agreed that the text of state statutes could not be copyrighted. But the state of Georgia argued that it could copyright annotations that are distributed with the official code. These annotations provide supplemental information about the law, including summaries of judicial opinions, information about legislative history, and citations to relevant law review articles. The annotations are produced by a division of legal publishing giant LexisNexis under a work-for-hire contract with the state.

The copyright status of the annotated code matters because the state doesn’t publish any other official version. You can get an unofficial version of state law for free from LexisNexis’ website, but LexisNexis’ terms of service explicitly warned users that it might be inaccurate. The company also prohibits users from scraping the site’s content or using it commercially. If you need the official, up-to-date version of Georgia state law, you have to pay LexisNexis hundreds of dollars for a copy of the official version—which includes annotations.

Public.Resource.Org defied Georgia’s rules and published the entire code, including annotations, on its website. The group argued that as an official document of the state legislature, it couldn’t be protected by copyright. The state sued and won at the trial court level. The 11th Circuit Court of Appeals reversed that ruling and sided with the non-profit. In an unorthodox move, the people at PRO urged the Supreme Court to review the case, even though doing so could reverse their appellate win, because they wanted to set a nationwide precedent.

The group’s gamble paid off—but just barely. Five justices bought PRO’s argument that Georgia’s official code was in the public domain. Four justices dissented and would have allowed the Peach State to copyright portions of its official legal code.

More here.

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5 Comments

  1. This article is extremely interesting as it pertains to the accessibility of the law by common citizens. In this instance, Georgia had literally put a paywall in front of the legal code, under the guise that because it is annotated vrsion, it is subject to copyright under their name. While I do understand the value of the annotation, as law can be difficult to understand due to its language and old age. Georgia does not have an official unannotated version of its code available to the public, only the annotated version. It seems strange to have copyrights to the only official source of law in the State. It was a very close decision, 5 in favor, and only the fact that Georgia had directly ordered, reviewed, and authrorized all of the annotations had swayed it. Because documents related to government officials duty cannot be copyrighted, the annotations fall under this category. The dissenting arguments are valid, as the annotations are not actually part of the law, rather the work of individuals in the field and analyzation. The main issue with Georgia is that they do not have an official un-annotated version of the code available anywhere. The only version is on a third party website, that comes with a disclaimer that it may be inaccurate. This leaves you with the option of using an iffy, possibly outdated version of the state code, or buying the updated version with annotations for hundreds of dollars. This unreliability in access to the code definitely swayed the decision of some justices. If there was a free unannotated version to begin with none of this would be an issue. And I believe Georgia could still have their rights to the annotations if they had offered to release an un-annotated version to the public. I wouldn’t say that I agree wholly with the supreme courts decision, however restricting the only updated an reliable form of the code behind a huge amount of money seems unfair and unjust. I would much rather them order Georgia to publish multiple versions of the code.

  2. In consideration of the ruling by the Supreme Court detailed in this article, I am curious as to how this will affect other instances of both state and federal laws being “locked” behind paywalls. As this case specifically deals with the issue of whether or not annotations can be copyrighted, it does not explicitly prevent laws from being released in formats that require financial expenditure. It does, however, seem to make such paywalls much more difficult to legally justify. While I understand that records require funds to maintain clean access, I believe the amounts that are being charged for legal codifications are, in many cases, excessive.

    As a prospective accountant, one of the most important legal databases I need access to is the FASB (Financial Accounting Standards Board) codification. While there is a basic, free version available on the FASB website, the very expensive professional version ($850 a year) is absolutely essential for anyone working in the accounting profession. This version offers a significant amount of improvements over the basic version, but unlike the Official Code of Georgia Annotated at issue in the article, the professional version of the FASB codification offers vastly improved research functionality as well as access to the archive of changes to the code instead of unique annotations. I believe that this instance deals with the same overarching issue, if not the explicit issue, which is reasonable access to functional laws created by our governments. While there is technically a free version of these laws, the much more expensive ‘professional’ version is the only realistic option for anyone who wishes to be able to reasonably apply these laws in their profession.

    Here is the FASB release detailing the differences between versions:
    https://www.accountingfoundation.org/cs/ContentServer?c=FAFContent_C&cid=1176157140048&d=Touch&pagename=Foundation%2FFAFContent_C%2FFAFNewsPage

    Furthermore, I believe another interesting example was raised by the commentator Shavano on the article’s original website, that the NEC, a work of the national fire prevention association, consists of required compliance for engineers but requires a purchase to obtain. Looking into this, the NFPA actually offers their safety codes and standards for free, but only in an online format. To download or print a copy, there is a cost, which is stated to be used to fund the NFPA. However, looking further into what is available for sale, it appears as though the NFPA is also selling annotations, as quoted from the description of one of the codes they sell:

    “NFPA codes and standards both provide requirements for achieving outcomes. Handbooks take a deeper dive, providing the full text of a code or standard as well as expert commentary and features such as graphics, decision trees, testing procedures, case studies, sample forms and checklists, and other helpful aids to give a better understanding of the reasoning behind the requirements and how to apply them.”

    Statement on free access: https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access

    Codes for sale: https://catalog.nfpa.org/NFPA-70-National-Electrical-Code-NEC-Softbound-P1194.aspx

    It strikes me that this “deeper dive” mentioned in the description, as well as the additional tools to give a better understanding of the legal reasoning and proper application, could amount to a paywall. Given just these two instances of this occurrence, and the high possibility of more, I would like to see official statements from governmental organizations on whether or not they will alter their policies based on this new ruling, as this has the potential to free a lot of working professionals from some very expensive recurring costs.

  3. Perhaps the most important takeaway to consider in this article is the idea that lawmakers are not authors, and they’re published laws are thus not copyrightable. The State of Georgia made a greedy mistake in trying to exclusively copyright the annotations of different laws for the state. In the U.S. Supreme Court Case, GEORGIA v. PUBLIC.RESOURCE.ORG, INC., The Nonprofit company, PRO, brought their problems with these copyrights all the way up the Federal Court system Surprisingly, even after gaining favor in the 11th Circuit Court of Appeals PRO wanted the Supreme Court of the United States to look over the case (despite the possibility of losing their favor). I find this decision to be a high risk high reward move: by getting the majority of Justices to side with the nonprofit, the precedent set on this case is coming from the highest court in the land. The article describes this action as unorthodox, but I think it’s a brilliant move on PRO’s part.
    I actually have had history (as many students have) with the organization, LexisNexis, through which the State of Georgia was trying to implement their copyright. The reason the original Trial occurred was because PRO made the annotations available to the public, which to Georgia was a violation of copyright. I find the most notable detail about the annotations that sets it apart from just general summaries is that these notes basically added onto the already established law. By saying specific case law applied and clarifying onto these state legislations, I believe that these annotations were extensions of the law. Also, these annotations were made by State Legislators, reviewed and discussed as actual legislation would be. They were akin to published laws, or at least now integral to the published law, and thus bring back up the fact that lawmakers are not authors when it comes to their published law. Thankfully, a majority of five Justices agreed with me in the Supreme Court. If it were not for this decision, the public would have to pay for what are basically specific points and details about the laws of their states. Attorneys would not have perfectly reliable access to legislation and all of this would be in exchange for the annotation writers, these legislators, to profit off of a public necessity.

  4. In this case, the Supreme Court takes on the issue of copyrighting public documents. The general consensus is that public statutes cannot be copyrighted, however, the argument, in this case, is whether Georgia can copyright the annotations it makes on the official statutes. In the end, the Court ruled that Georgia cannot make this copyright decision, a win for open-government groups and advocates. The nonprofit who published Georgia’s Official Code did so knowing that the state was trying to prevent such an action, and also decided to appeal to the Supreme Court even after winning in the appellate court. Essentially, the nonprofit wanted to establish a nationwide precedent when it comes to this specific kind of copyright law. Not only does this show the confidence they had in their case, but it also is a strong commitment to the requirement of open government. Personally, I agree with the overall decision of the Court; I don’t think legislative statutes should be able to be copyrighted especially if they are to be applied to the country as a whole. While the laws in question are attributed to specific legislators and states, there is no reason that officials should be able to copyright such information and prevent its release. Georgia desired to keep the official version out of the public hands unless citizens paid LexisNexis (a private company) hundreds of dollars for access to the correct, annotated Official Law Code. To me, this seems not only unethical but puzzling. If not for financial reasons, what incentive does the state have in keeping the legal code from being readily available to the public? It appears that the state has a deal with LexisNexis that it was trying to adhere to, where LexisNexis provides annotations on the legal Code that are approved by a committee hired by the state, and since Georgia has a copyright on the material, it gets a cut from all of the annotated sales that LexisNexis makes. However, the fact that public laws are not being openly shared is quite concerning. On the flip side, one could argue that LexisNexis is a private company and should be able to copyright original works. If this were as straightforward as that, I would agree; however, in this case, the Court said that the committee hired by the state had oversight of the annotations and made recommendations/ approvals of LexisNexis’s work. Thus, the State had the final say over these annotations and as established in prior case law, state laws and statutes are not copyrightable. In all, the nuance here involved the committee paid for by Georgia’s taxpayer money.

    After further research, albeit brief research, it seems that this case has significant legal implications in that it extends copyright restrictions to state laws, whereas they only applied to the federal government beforehand. The decision applies what the Court refers to as the ‘government edicts doctrine’, and that doctrine states “that documents that have the force of law cannot be copyrighted.” In essence, Georgia cannot copyright state laws because, under the official duties of legislators, their work is not copyrightable. Chief Justice Roberts states this best when he aptly says “that no one can own the law.”

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