Login | September 30, 2020

SCOTUS to hear legal text copyright case this term

Technology for Lawyers

Published: November 1, 2019

It is axiomatic that laws and court decisions belong to the people and are therefore not subject to copyright.
Or is it? But about annotated statutes? Is the annotation subject to copyright by the state, or by a publisher contracted by the state? The US Supreme Court will be deciding that issue in Georgia, et. al. v. Public.Resource.Org, Inc., to be argued in December.
17 USC Sec 105 states that binding and official government documents may not be copyrighted. The Supreme Court ruled in 1888 that state court opinions cannot be copyrighted. However, the Court has never reached the issue of copyrighting annotations on state laws.
The case arose after an arm of the state of Georgia contracted with LexisNexis Group to produce and publish an annotated version of the state’s statutes. This version includes citations to relevant cases (assuming that means online links as well), and Ga. AG opinions. The contract gave the state copyright to the annotations, with LexisNexis getting exclusive publishing rights.
Georgia made a simple text version available online, but the only way to access the annotated version was to have a LexisNexis subscription.
So—public interest/ open government watchdog organization Public.Interest.Org went ahead and published the annotated version. And Georgia sued them for copyright infringement.
Georgia’s argument is that the law not subject to copyright is only the text of the actual statutes, not including any commentary, which, they argue, belongs to whomever wrote that commentary. Public.Interest.Org argued that everything connected to the law is the law, and that forcing the general public to get a subscription to LexisNexis was an undue burden.
The Northern District of Georgia sided with the state. However, the 11th Circuit in Atlanta (where I worked while I was waiting to hear my bar results lol) overturned the lower court.
The 11th held that “the annotations cast an undeniable, official shadow over how Georgia laws are interpreted and understood,” finding at least 11 state court cases in which the annotations had been cited as official guidance. The appellate court also noted that the participation of the state’s AG in the contract negotiations made it all state action.
Ohio connections here are interesting. Lexis-Nexis originated in Ohio, and the Ohio Revised Code has always included annotations. This case may affect the redoubtable Ohio Rev. C. Also, I’m typing this in Georgia font, so there is that.