In the era of digital communications, pointing at a pile of dusty law books when it comes to the law really isn’t enough, so when Georgia put its law books behind a paywall, that caused a bit of an uproar as non-profit Public.Resource.Org (PRO) paid to fetch it from LexisNexis, a for-profit company, and re-published it for free and without seeking permission to do so.
Georgia screamed foul and won the initial skirmish, but PRO won the appeal. Now it’s at SCOTUS, argued yesterday. Ars Technica picks up on the story:
You might think that PRO could just publish the un-annotated version of Georgia’s code. The problem, as PRO’s Supreme Court brief pointed out, is that Georgia doesn’t publish an un-annotated version. The annotated version is the only official version.
An obvious solution would be for Georgia and LexisNexis to separate the two works. Georgia could publish an official, un-annotated version of the state code that would be in the public domain. LexisNexis could independently produce and publish an annotated guide to the state code, keep the copyright, and charge customers for it. Indeed, Westlaw produces its own copyrighted annotation of the Georgia state code.
But the state of Georgia argues that the intermingling of statute and annotations is necessary to finance the creation of the annotations in the first place. LexisNexis covers the costs of producing the annotated code, then it recoups its investments by charging for copies of it. If the Supreme Court holds that the Official Code of Georgia Annotated is in the public domain, this business model wouldn’t work any more.
But intermingling copyrighted and public domain works creates headaches for third parties wanting to make use of the code.
Georgia’s position is that only the legally binding portions of the state code are public domain. But legal documents almost always contain a mix of binding and non-binding elements. If the Supreme Court buys Georgia’s argument, it will create a legal minefield for organizations like PRO, since the line between copyrightable and non-copyrightable content will get fuzzier. Anyone wanting to republish an official legal document will have to hire legal experts to go through the documents with a fine-tooth comb trying to determine which portions of the documents are in the public domain and which ones might not be.
PRO argues that the court should sidestep this whole thicket by declaring that state-published legal documents are always in the public domain, whether or not they’re legally binding.
The biggest obstacle to victory for PRO is a pair of 19th-century precedents that opened the door to copyright protections for some legal documents. In an 1834 ruling, the high court allowed a court reporter—a court employee who compiled judicial opinions and added his own annotations—to retain copyright protections for his contributions. The Supreme Court reached a similar conclusion in an 1888 case.
The real hinge on this case, to my mind? The Georgia defense:
But the state of Georgia argues that the intermingling of statute and annotations is necessary to finance the creation of the annotations in the first place.
That’s a load of rot. That’s someone saying, Oh, no, in order to provide acceptable services, we’ll have to raise taxes! Wait, I have a better idea …
And now the citizens end up paying for it anyways, but in an unequal manner. Hell, I wonder if the State itself ends up paying for access to its own laws … !
This is what comes from an allergy to paying, upfront, for what the State needs to provide to its citizens, just because of an unhealthy fear of taxation.
It seems to me that, in order to accommodate the reasonable expectations of copyrights on the annotations, SCOTUS should order Georgia to quit being a pack of cheap bastards and publish the laws, sans annotations, for free on a website, and as a book at perhaps a nominal charge. In this case, keeping taxes low is nothing more than a political position, not a principled stand.
