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Thu, 27 Jun 2019
Supreme Court To Review Whether Or Not You Can Copyright State Laws
Furnished content.
Last fall we were happy to see the 11th Circuit rule that, obviously, a state's official laws couldn't be covered by copyright. As you may recall, the case involved the state of Georgia and Carl Malamud's Public.Resource.Org. Malamud has spent years helping to make the law more readily available to the public -- and has been on the receiving end of a bunch of lawsuits for his troubles. The case in Georgia had some slightly odd facts in that the state said that its laws were freely available, but it contracted out to a private company, LexisNexis, to produce an "annotated" version of the law. LexisNexis then got a copyright on the annotations, which it then assigned to the state. Then -- and this is the important part -- the state released the "Official Code of Georgia Annotated" (OCGA) as the only "official" version of the laws. When new laws were passed, they were specifically written to be included in the OCGA. While the lower court said that the annotations could be covered by copyright, and thus Malamud publishing a free online version was infringing, the 11th Circuit easily reversed. It didn't even say something more narrow, like arguing that the republishing was fair use. It said you can't copyright the law at all. Period. Full stop.... 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 state of Georgia asked the Supreme Court to review and, perhaps surprisingly, Malamud also asked the Supreme Court to take the case, noting that while the 11th Circuit ruling was persuasive, it was not binding across the rest of the country, and it would certainly be nice for the Supreme Court to just rule, flat out, that you can't copyright laws. Of course, the flip side of this is that if the Supreme Court ruled the other way, that would be really bad.Well, we're going to find out, as the Supreme Court has agreed to hear the case. The Supreme Court has a bit of history being, well, wacky when it comes to copyright cases, so this really could go any way. But what the court decides is going to be important. I fear a result where the court sides with Georgia, leading other states to sense a "revenue opportunity" in locking up their own laws. However, hopefully, the court recognizes the basic absurdity of using copyright on any set of laws, even when it includes annotations from third parties.
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posted at: 12:00am on 27-Jun-2019
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