Who owns the law?

This post is co-authored by Dave Hansen and Leslie Street, Director of the Mercer University Law Library and incoming Director of the Law Library at William & Mary.

There are some categories of information that are so critical to a well-functioning society that restrictions on access or use should almost never be allowed. We could write a long list of those categories, but at the top would be “the law.” Anyone vaguely familiar with the U.S. legal system knows that ignorance of the law is no excuse. The ancient concept, that citizens have the obligation to understand and comply with the law, is an almost absolute presumption across the American legal system. And wrapped up in that presumption is the implicit expectation that citizens have an opportunity to understand the law, and thus necessarily have access to the text of the law itself. Concepts like democratic rule and due process hinge on the concept.

Public.Resource.Org and the Official Code of Georgia Annotated

Later this week an organization called Public.Resource.Org will ask the Supreme Court to address the scope of public access and use rights in “the law”, specifically in a case titled Georgia v. Public.Resource.org. The case is about whether the State of Georgia—by way of a publishing contract with Lexis—can hold copyright in the Official Code of Georgia Annotated, which is the official statutory “version of record” that courts, attorneys, and the public must rely on. While courts have been relatively clear about the inapplicability of copyright to the core text of edicts of government, courts have not thoroughly addressed how copyright applies to parts of “official” legal publications that include non-statutory additions such as annotations and comments that are authorized by the state. The state of Georgia asserts that such materials may be protected by copyright and therefore controlled and restricted. The 11th Circuit disagreed, holding that

“By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. . . . Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. . . . The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all. As a result, no valid copyright can subsist in these works.”

We find the 11th Circuit reasoning persuasive, and so does Public.Resource.org, which is now making the bold move of asking U.S. Supreme Court to review the case it has already won in the court below, in hopes of clarifying the law nationwide.

Looking beyond Georgia

What’s crazy is that it’s not just the state of Georgia claiming rights over its laws. Over the last year or so we researched and wrote an article titled Who Owns the Law: Why We Must Restore Public Ownership of Legal Publishing, 26 J. Intell. Prop. L. 206 (forthcoming 2019), https://doi.org/10.31228/osf.io/xnbcp, which outlines all the many ways that commercial legal publishers have come to dominate the primary law publishing market. The article explains how those publishers use tools like copyright law and contracts to restrict access today, and how yet more noxious tools such as the CFAA could pose threats in the future.

In writing that article we cataloged the status of copyright assertions and publishing arrangements for the court opinions, statutory codes and administrative codes of all 50 states [links here and here, and we hope to make a more usable/readable version of this data soon].  We found that at least 20 states, in addition to Georgia, make some type of copyright assertion over their official statutory code. Many others make claims regarding their administrative codes and judicial opinions. Some of those assertions result in what seem like amusing oddities—for example, one must contractually agree to arbitration in New York to obtain free online access to the Arkansas code—but that have also resulted in real legal battles that can have a chilling effect on access and use.

So what can we do? Our paper has some suggestions, specifically for law libraries, state legislatures, and the courts. But ultimately, the solution is likely as complicated and localized as the 50+ jurisdictions that produce the law. In the short term, pay attention to the Public.Resource.Org case before the U.S. Supreme Court. And if you’re a law student, solo practitioner, or legal educator, there is an awesome opportunity to join an amicus brief before that court in support of Public.Resource.Org, asking the court to take the case  (but you’ll have to act fast; signatures are due by May 2).