November 26, 2018
Earlier this month, the United States (“U.S.”) Court of Appeals for the Eleventh Circuit overturned a lower court ruling and declared the state of Georgia’s laws, including annotations, are not covered by copyright and are free to share online. The defendant in this matter was Carl Malamud, whose non-profit Public.Resource.org is focused on ensuring open access to, among other things, U.S. laws, court records and government-produced video.
In May of 2013, Malamud bought a hard copy of the state of Georgia’s official laws, known as the Official Code of Georgia Annotated (“Code” or “OCGA”), for $1,207.02 (to buy a copy on CD reportedly cost $1,259.41). He scanned a copy of the OCGA, loaded it onto USB drives, and sent the USB drives to state officials and other prominent Georgia lawyers and policymakers. He enclosed a letter with the USB drives and ultimately posted the OCGA online.
State lawmakers responded with accusations of unlawful copying and claimed Malamud’s posting of the OCGA online infringed on the exclusive copyright of the state of Georgia. After ordering Malamud to cease and desist by destroying the files and removing the laws from his website, the state’s Code Revision Commission (“Revision Commission”) and state of Georgia sued Public.Resource.org for copyright infringement in federal court.
A major issue arose from the fact that the state of Georgia contracts out with LexisNexis, a private company, to “annotate” the law (i.e. give the law more context by providing case law interpretations and applications to the official Code). This, the Revision Commission argued, meant that “annotations, captions, catchlines, headings, history lines, editorial notes, cross-references, indices, title and chapter analyses, research references, amendment notes, Code Commission notes, and other material” included in the Code made the OCGA a copyrightable work.
While acknowledging that this case was an “unusual” one since most official codes are not annotated, and most annotated codes are not official, U.S. District Judge Richard Story ruled in favor of the Revision Commission and the state of Georgia. Judge Story found that the annotations were “original words entitled to broad copyright protection” and that Public.Resource.org had “misappropriated every single word of every annotation using a bulk industrial electronic scanner.”
The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court’s decision and declared the OCGA, notwithstanding its annotations, is not subject to copyright. The appeals court made clear that Georgia’s state laws are “attributable to the constructive authorship of the People,” and recognized that access to the law is a fundamental aspect of a democratic system, not simply a matter of copyright ownership and profitability:
From the earliest day of the Republic, under federal copyright law, copyright interests have vested in the author of the work. Authorship, therefore, is central to many questions that arise under the Copyright Act, 17 U.S.C. § 101 et seq. This case is no exception. In most states the “official” code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People.
To navigate the ambiguities surrounding how to characterize this work, we resort to first principles … 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 … it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.