In a major victory for open government and fundamental due process, the Supreme Court ruled today that the annotations in a state’s official legal code—summaries of court decisions and other sources that explain the state’s laws—cannot be copyrighted. That is, that there cannot be a better-explained version of the law available only to those who can afford to pay for it. The law, in any form, must be accessible to all.
“Officials empowered to speak with the force of law,” wrote the Court [pdf], “cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.” This decision means the state of Georgia will not be able to stop the open government nonprofit Public.Resource.Org, or any other member of the public, from copying, sharing, speaking, or quoting the state’s official code.
Public Resource, run by Carl Malamud, works to make government documents, especially legal materials, available online. One of many important items in Public Resource’s online archive is the Official Code of Georgia Annotated (OCGA), the only official compilation of that state’s laws. In addition to the statutes enacted by the state legislature, the OCGA contains annotations: “summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and a list of related law review articles and similar reference materials.” The annotations are compiled by a commission created by the state legislature, with help from a division of the giant legal publishing company LexisNexis Group. In return, Georgia promised LexisNexis an exclusive right to publish the OCGA.
Georgia sued Public Resource in 2015, arguing that posting the entire OCGA on Public Resource’s website infringed the state’s copyright. While Georgia didn’t claim to own a copyright in the text of its statutes, it did claim copyright in the annotations. The district court agreed with the state, and held Public Resource liable for copyright infringement. The Court of Appeals for the Eleventh Circuit reversed, creating a complex three-part test for when materials like Georgia’s annotations are copyrightable, and finding that they were not.
The Supreme Court upheld the Eleventh Circuit’s decision, but with a simpler test based on the centuries-old “edicts of government” doctrine. Writing for a five-justice majority, Chief Justice Roberts wrote that materials made by government officials who are “vested with the authority to make and interpret the law,” and acting within their official duties, are not “works of authorship” under the Copyright Act. “The animating principle behind this rule,” wrote the chief justice, “is that no one can own the law.”
“The animating principle behind this rule,” wrote the chief justice, “is that no one can own the law.”
Rejecting Georgia’s argument that citizens who don’t have $400 to pay for the Lexis version of the code should make do with the barebones version of the code that was available for free, the Court stresses that there can be no “economy class” when it comes to knowing and speaking the law:
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. … Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal.
If “every citizen is presumed to know the law,” the Court observed “it needs no argument to show . . . that all should have free access” to its contents.”
We couldn’t agree more. That is one reason EFF is defending Public Resource in another copyright case, because Public Resource had the audacity to post online federal rules about safety and energy efficiency (like the National Electrical Code). These rules are initially created through private standards organizations and later incorporated into federal and state law, but they are often difficult and expensive to access. Public Resource is fixing that problem, and six industry associations that insist they own a copyright in these laws are trying to stop it. With EFF’s help, Public Resource is fighting back.
Today’s decision sends a strong and welcome signal that copyright should not thwart the essential public interest in accessing and sharing the law. We hope lower courts obey that admonition, so we can free all of the law, once and for all.
