Teh One Who Knocks
12-04-2019, 12:17 PM
TIMOTHY B. LEE - ars TECHNICA
https://i.imgur.com/uXfBYKt.jpg
Carl Malamud, founder of Public.Resource.Org.
The courts have long held that laws can't be copyrighted. But if the state mixes the text of the law together with supporting information, things get trickier. In Monday oral arguments, the US Supreme Court wrestled with the copyright status of Georgia's official legal code, which includes annotations written by LexisNexis.
The defendant in the case is Public.Resource.Org (PRO), a non-profit organization that publishes public-domain legal materials. The group obtained Georgia's official version of state law, known as the Official Code of Georgia Annotated, and published the code on its website. The state of Georgia sued, arguing that while the law itself is in the public domain, the accompanying annotations are copyrighted works that can't be published by anyone except LexisNexis.
Georgia won at the trial court level, but PRO won at the appeals court level. On Monday, the case reached the US Supreme Court.
During Monday's oral argument, some justices seemed skeptical of Georgia's position.
"Why would we allow the official law to be hidden behind a pay wall?" asked Justice Neil Gorsuch.
Georgia's lawyer countered that the law wasn't hidden behind a paywall—at least not the legally binding parts. LexisNexis offers a free version of Georgia's code, sans annotations, on its website.
But that version isn't the official code. LexisNexis' terms of service explicitly warns users that it might be inaccurate. The company also prohibits users from scraping the site's content. If you want to own the latest official version of the state code, you have to pay LexisNexis hundreds of dollars. And if you want to publish your own copy of Georgia's official code, you're out of luck.
Blurred lines
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.
https://i.imgur.com/rAvK3Bzl.jpg
The Georgia State Capitol Building
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.
Ancient precedents
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.
Georgia argues that the same principle should apply to LexisNexis. The text of Georgia statutes is in the public domain. But LexisNexis' annotations of the statute are eligible for copyright protection.
But PRO points to a key difference between the cases. The court reporters in those 19th-century cases prepared their annotations independently. While they were salaried employees of the courts, their work wasn't reviewed or approved by the courts before publication. As a result, PRO argues, no one would have confused those annotations for an official summary of the law.
By contrast, the Georgia legislature closely supervises LexisNexis' work to draft its annotations for the Georgia Code. Changes are reviewed by a legislative commission, and the final product is officially adopted by a vote of the state legislature. PRO argues that this is enough to make it an official state legal document—and hence ineligible for copyright protection.
https://i.imgur.com/uXfBYKt.jpg
Carl Malamud, founder of Public.Resource.Org.
The courts have long held that laws can't be copyrighted. But if the state mixes the text of the law together with supporting information, things get trickier. In Monday oral arguments, the US Supreme Court wrestled with the copyright status of Georgia's official legal code, which includes annotations written by LexisNexis.
The defendant in the case is Public.Resource.Org (PRO), a non-profit organization that publishes public-domain legal materials. The group obtained Georgia's official version of state law, known as the Official Code of Georgia Annotated, and published the code on its website. The state of Georgia sued, arguing that while the law itself is in the public domain, the accompanying annotations are copyrighted works that can't be published by anyone except LexisNexis.
Georgia won at the trial court level, but PRO won at the appeals court level. On Monday, the case reached the US Supreme Court.
During Monday's oral argument, some justices seemed skeptical of Georgia's position.
"Why would we allow the official law to be hidden behind a pay wall?" asked Justice Neil Gorsuch.
Georgia's lawyer countered that the law wasn't hidden behind a paywall—at least not the legally binding parts. LexisNexis offers a free version of Georgia's code, sans annotations, on its website.
But that version isn't the official code. LexisNexis' terms of service explicitly warns users that it might be inaccurate. The company also prohibits users from scraping the site's content. If you want to own the latest official version of the state code, you have to pay LexisNexis hundreds of dollars. And if you want to publish your own copy of Georgia's official code, you're out of luck.
Blurred lines
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.
https://i.imgur.com/rAvK3Bzl.jpg
The Georgia State Capitol Building
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.
Ancient precedents
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.
Georgia argues that the same principle should apply to LexisNexis. The text of Georgia statutes is in the public domain. But LexisNexis' annotations of the statute are eligible for copyright protection.
But PRO points to a key difference between the cases. The court reporters in those 19th-century cases prepared their annotations independently. While they were salaried employees of the courts, their work wasn't reviewed or approved by the courts before publication. As a result, PRO argues, no one would have confused those annotations for an official summary of the law.
By contrast, the Georgia legislature closely supervises LexisNexis' work to draft its annotations for the Georgia Code. Changes are reviewed by a legislative commission, and the final product is officially adopted by a vote of the state legislature. PRO argues that this is enough to make it an official state legal document—and hence ineligible for copyright protection.