When Harvard decided to digitize its entire collection of U.S. case law in 2013, it couldn’t just scan the 40 million pages it had amassed in its Law School library and put them up online—it had to undertake an expensive and time-consuming process of redacting notes, annotations, and anything else surrounding the actual case law that might not be in the public domain and could therefore trigger a copyright lawsuit.
That same year, Carl Malamud, the founder of nonprofit organization Public.Resource.Org, decided to do something similar with Georgia state laws. However, he took a different route. He purchased a hard copy of the Official Code of Georgia Annotated for more than $1,200 from LexisNexis, scanned it, and sent USB drives with two copies of the entire state code to several Georgia legislators. He also posted it online, prompting the state of Georgia to sue him for copyright infringement in a lawsuit that memorably accused Malamud of “terrorism,” stating, “Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website.”
On Monday, the Supreme Court ruled in favor of Malamud, saying that Georgia state laws and their official annotations, like all other works authored by judges or legislators, are not copyrightable. The decision came down to a 5–4 split between the court’s youngest five justices (John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh) and its four oldest members (Clarence Thomas, Samuel Alito, Stephen Breyer, and Ruth Bader Ginsburg).
It may be a little surprising that in 2020, state laws were not already clearly in the public domain, especially because U.S. copyright law explicitly designates work and statutes produced by the federal government as not being protected by copyright. That exemption doesn’t apply to state governments, though. And the Official Code of Georgia Annotated is not just comprised of state laws. The annotations on those laws are provided by a company called Matthew Bender & Co. Inc., which is part of the legal research and database firm LexisNexis Group. According to the Supreme Court, those annotations “often include editor’s notes that provide information about the origins of the statutory text, such as whether it derives from a particular judicial decision or resembles an older provision that has been construed by Georgia courts.”
The process of assembling the entire OCGA is overseen by Georgia’s Code Revision Commission, a 15-person group of which the majority must be members of the Georgia state Legislature. That commission contracted with LexisNexis to write the annotations and also “supervises that work and specifies what the annotations must include in exacting detail,” according to the majority ruling. Lexis received the exclusive right to publish, distribute, and sell the OCGA, and in exchange, the company “agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free.” With annotations, a hard copy of the OCGA costs $412 for Georgia state residents, though Malamud, who is not a Georgia resident, posted a receipt showing a price of $1,010 for the hard copy, plus $97.36 for shipping and handling, to obtain the OCGA complete with annotations.
But those annotations are not just the equivalent of the DVD commentary on a movie.
Chief Justice John Roberts wrote that they have “practical significance” for understanding the state laws. As one example, he notes that a Georgia citizen who
reads the [free] economy-class version of the Georgia Code available online … will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court.
By comparison, he writes, “first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal.”
More importantly, from a copyright perspective, the majority of the court found that the involvement of the state commission in overseeing the annotation process means that those notes can be considered a product of the legislative process and, in some sense, to be authored by legislators. “Although Lexis expends considerable effort preparing the annotations, for purposes of copyright that labor redounds to the Commission as the statutory author,” Roberts wrote. He concluded that “whatever work [a] judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”
It’s an important ruling not just for Malamud and Public.Resource.Org, but also for others interested in moving more government-issued documents online where they can be read and used by the public. For instance, lawyers for the Caselaw Access Project at Harvard—the initiative that scanned 40 million pages of U.S. case law—filed an amicus brief in the case describing its own extensive redaction process and the challenges of trying to make legal materials publicly accessible when there is so much ambiguity around what is and is not in the public domain when it comes to things like annotations.
Kendra Albert, a lecturer at Harvard Law School and one of the lawyers for the Caselaw Access Project who filed the amicus brief, highlighted the importance of the court’s ruling in providing clarity to people trying to make government materials more accessible to the public.
“It does seem surprising, but there was significant uncertainty before this around the copyright of legislative documents,” Albert said. “The court drew a sharp line saying that if something is the work of the legislature in its legislative business then it’s not copyrightable—I hope that this will discourage governments from trying to limit the publication of law via copyright.”
The Supreme Court’s ruling, like the Caselaw Access Project, is hugely encouraging for people who care about access to laws and government documents. But it’s also a stark reminder of how much work there is left to do to disentangle our public records from revenue-generating paywalls and systems. Even if the work products of judges and legislators do automatically enter the public domain, there are still significant hurdles to people being able to access those documents in many cases—systems like PACER that require people to pay by the page to read court documents, or companies like Lexis standing guard over legislative records and charging hundreds of dollars to read them in their full form. Stripping these documents of copyright protections doesn’t change the fact that many people still may not be able to access them, but it does mean that when individuals like Malamud or institutions like Harvard Law School can afford to purchase those records they are at least able to share them online with the rest of the world without fear of being sued, much less accused of terrorism.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.