SCOTUS to decide who owns the rights to state law compilations

By: - December 4, 2019 11:15 am

U.S. Supreme Court | Robin Bravender

WASHINGTON — A dispute over a compilation of Georgia’s laws and who owns the rights to them was at the center of a U.S. Supreme Court argument on Monday. 

The case surrounds the Official Code of Georgia Annotated — a publication including state laws, as well as background information. Georgia contends that the code, maintained and distributed by the private company LexisNexis Group, is subject to copyright. Georgia and many other states say they rely on copyright incentives to encourage private publishers to publish their official codes. 

But Georgia is at odds with the nonprofit group Public.Resource.Org Inc., which uploaded the annotated code of Georgia to its website to make it freely available to the public. Public Resource argues that broad copyright assertions from Georgia and other states “seriously restrict the effective publication and circulation of official laws.”

The “government edicts” doctrine bars the copyright of legal texts with the force of law, and this case surrounds whether the language in the annotations is copyrightable. 

Michigan Capitol, Sept. 20, 2019 | Laina G. Stebbins

Michigan is one of the states that has an interest in the outcome of the case. It’s among 20 other states than Georgia that have registered a copyright in all or part of their codes, according to Public Resource. The other states are: Arkansas, Colorado, Connecticut, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, South Dakota, Tennessee, Vermont, Virginia, West Virginia and Wyoming.

“While statutory text is not copyrightable, annotated research references are eligible for copyright protection, even if they appear in an official code book like the [Official Code of Georgia Annotated],” Georgia’s lawyer, Joshua Johnson, told the justices on Monday. 

The President Trump administration is backing Georgia in the case. 

But Eric Citron, a lawyer for Public Resource, argued that the Georgia code compilation is a legal work that’s published under the authority of the state. “If it is, then it can’t be copyrighted, and that makes sense because states don’t publish authentic state legal works for the purposes of making money or maximizing profit,” he said. “They publish them so that people will understand their legal obligations.”

Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives at the U.S. Capitol Building on February 5, 2019 in Washington, DC. | Doug Mills-Pool/Getty Images

Justice Neil Gorsuch appeared skeptical of Georgia’s argument. “Why would we allow the official law to be hidden behind a paywall?” he asked. 

Justice Sonia Sotomayor noted that if a law clerk prepares notes or summaries for her, he or she couldn’t get a copyright for it. The annotations in the code are a “contract-for-hire,” she said, “which means you treat it like an employee.” 

At least one justice appeared to support Georgia’s argument. Justice Brett Kavanaugh suggested that the law “clearly says states can get copyright protection for annotations.” 

Broadly, this case is about the contours of the government edict doctrine and what it covers, said Adina Rosenbaum, an attorney at the advocacy group Public Citizen. 

“When the state is speaking in the state’s voice on legal matters — interpreting the law, saying what the law is in some way, creating the law — people should have access to that information to be able to understand the law,” Rosenbaum said. 

Capitol in Atlanta, Georgia | Getty Images

Michael Carroll, a professor at American University Washington College of Law in Washington, D.C., said the justices don’t typically follow ideological lines in intellectual property cases. 

“The Supreme Court has a choice here to rule broadly or narrowly,” Carroll said. This case is “fairly specific,” he said, but could have significant implications for the publishing industry, where “publishing legal information has always been a very profitable business.” 

A decision in the case, Georgia v. Public.Resource.Org Inc., is due before the court’s term ends next summer. 

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Robin Bravender
Robin Bravender

Robin Bravender was the States Newsroom Washington Bureau Chief from January 2019 until June 2020. She coordinated the network’s national coverage and reported on states’ congressional delegations, federal agencies, the White House and the federal courts. Prior to that, Robin was an editor and reporter at E&E News, a reporter at Politico, and a freelance producer for Reuters TV.