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.

Old precedents, new technology

The Supreme Court hasn’t ruled on the copyright status of official documents in over a century. But a couple of rulings from the 1800s said that judicial documents could not be copyrighted. These cases involved court reporters—writers who were chosen by the courts to keep records of court proceedings and publish them. Official court reporters were more independent in the 19th century than judicial staff today, and they would sometimes publish their own annotated versions of judicial opinions.

But the 19th-century Supreme Court nixed efforts to claim ownership of content that had originally been written by judges. This applied not only to majority opinions (which are legally binding) but also to dissenting opinions and official summaries of court rulings. At the same time, the Supreme Court held that court reporters could claim copyright over annotations that they produced independently from their official duties.

The Georgia case is about the legislative branch, not the judicial branch. But the parallels are obvious. PRO pointed to the Supreme Court’s prior holdings that official documents couldn’t be copyrighted. The state of Georgia countered by pointing to the ruling that annotations could be copyrighted.

The high court’s five-justice majority sided with the non-profit group. In an opinion written by Chief Justice John Roberts, the high court held that the key factor was who had written the materials. And while most of the annotations were initially drafted by LexisNexis personnel, the state’s legislative council held final authority over the document’s contents.

The council gave LexisNexis detailed instructions about what kinds of material to include, and legislative officials carefully reviewed each new annotation before approving it. Moreover, the high court held that Georgia’s legislative council was effectively an arm of the state legislature. The group was funded by the state of Georgia, and a majority of its members had to be Georgia legislators. Hence, the Georgia legislature bore ultimate responsibility for the code’s contents.

As a result, the Supreme Court held that any document produced by the Georgia legislature could not be protected by copyright.

Four justices disagreed

Four justices dissented, writing two dissenting opinions. Clarence Thomas, in an opinion joined by fellow conservative Sam Alito and largely joined by liberal Stephen Breyer, argued that the courts were stretching century-old precedents too far. The old rulings had been clear that laws themselves couldn’t be copyrighted, Thomas argued, but hadn’t been so clear about when copyright should apply to related materials that do not have the force of law.

Thomas pointed out that 22 other states have used arrangements similar to Georgia’s to publish their own state laws. Georgia—and a number of other states—grants a company like LexisNexis a monopoly right to publish the official annotated state code. In exchange, LexisNexis spends significant amounts of money to produce the annotations. This kind of deal saves states from having to spend taxpayer dollars to directly fund the annotation process.

Monday’s rulings will force states to rethink this approach—either paying for the annotations with cash or discontinuing annotations altogether. Thomas argued that it would be better for the high court to leave the status quo in place and let Congress alter copyright law if it didn’t approve of states claiming copyright over the non-binding portions of state legal codes.

A second dissent by liberal Ruth Bader Ginsburg—and also signed by Breyer—took a different tack. She argued that the law only denied copyright protection to works produced by a legislature in the course of its official duties. But she argued that the process of annotating existing laws is inherently separate from the process of enacting laws in the first place.

“Annotating begins only after lawmaking ends,” Ginsburg argued. Hence, she argued that it didn’t make sense to treat annotations the same way as the text of a statute itself.

One potential problem with the dissenters’ approach, however, is that it could have created a legal minefield for people wanting to republish the public domain portions of official documents. If Ginsburg and Thomas had gotten their way, Georgia’s official annotated code would continue to be a mixture of copyrighted and public domain works. That would have forced anyone who wanted to republish state law to perform the laborious task of deleting the copyrighted parts first. The practical impact would be to raise the cost of providing the public with copies of official legal documents like the Georgia code.

The Supreme Court majority rejected the dissenters’ narrow interpretations of past precedents. Instead, they held that any works produced by the legislature are excluded from copyright protection, whether or not they’re directly connected to the legislative process—and whether or not they’re legally binding.

Disclosure: Public.Resource.Org provided financial support for my graduate studies during the 2010-11 school year.

https://arstechnica.com/?p=1671437