Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let’s dig in:
For the past few years, we’ve been covering the fairly insane situation down in Georgia, where they insist that the state’s annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia’s laws are not covered by copyright. But here’s where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to “annotate” the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only “official” version of Georgia’s state laws is in the “annotated” version. If you want to look up the official law of Georgia you are sent to the “Official Code of Georgia Annotated” (OCGA), and it’s hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend “the Official Code of Georgia Annotated,” which certainly suggests that the OCGA — all of it — is the law in Georgia. And the state insisted that part of the law was covered by copyright.
Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.
And, it’s also no longer a valid one.
The appeals court has put together a thorough ruling rebuking the lower court’s analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:
To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power — which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows — it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.
The court admits that there are strong arguments in both directions on this one, but:
… at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.
Because of this, the court doesn’t even need to do a fair use analysis. Since there’s no copyright in the OCGA, the fair use question doesn’t even matter, and Malamud (and anyone else) is free to post and access the full OCGA.
There’s a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it’s copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.
We’ll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:
The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process — namely bicameralism and presentment — that is ordinarily reserved for the exercise of sovereign power.
Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.
As a result, no valid copyright can subsist in these works.
This ruling also strengthens Malamud’s arguments in some of his other legal fights, concerning the concept of “incorporation by reference,” where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason — and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).
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