Are State Legal Texts with Annotations Copyrightable? The U.S. Supreme Court to Decide in Georgia v. Public.Resource.Org

By Califf Cooper

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The Supreme Court recently heard oral arguments to decide whether Georgia’s annotated version of the Georgia legal code is protected by copyright.  The case stems from Public.Resource.Org publishing the full annotated version of the code online and Georgia’s subsequent case for copyright infringement.

The State of Georgia contracted with LexisNexis to produce and publish the annotated version of the state’s legal code.  The annotated version includes three parts: (1) the code itself, (2) the official commentary, and (3) the annotations.  The annotations consist of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.

Georgia does not dispute that the code and the official commentary are not protected by copyright because they are legal edicts excluded from copyright protection under 17 U.S.C. § 105.  While section 105 does not explicitly apply to works of state and local governments, as opposed to the U.S. government, the Supreme Court has held that state court judges speak for the people, such that their opinions are not copyrightable.  In turn, lower courts have extended these holdings to state statutes.

However, Georgia argues the annotations are copyrightable because the annotations themselves do not have the force of law and rather, merely summarize or comment on the statutes.  At the district court level, the Northern District of Georgia agreed with the State’s argument and ruled that the annotated edition of the state code was eligible for copyright protection and that Public.Resource.Org violated the state’s copyright by republishing the text without permission.

Public.Resource.Org appealed the decision to the Eleventh Circuit, which overturned that decision and ruled that “unfettered access to the legal edicts that govern” the lives of the citizens, even with annotations, is inherently public domain material that is not copyright eligible.  The appeals court also found 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 Eleventh Circuit also highlighted the Attorney General’s participation as one element in the analysis that indicated the formality of the annotations and their binding nature on Georgia residents.  The appeals court reasoned that the People are the ultimate authors of the annotations and thus the annotations are inherently public domain material that is not copyrightable.

If the Supreme Court sides with the State of Georgia, those unwilling or unable to purchase a LexisNexis subscription may be denied access to the state’s own explanation and analysis of the law in which the state’s citizens are expected to abide.  Supporters for Public.Resource.Org point out that law students, legal educators, and practitioners of the law should have full access to the state’s interpretation of the law, and that limiting such access impairs the very practice of law.

On the other hand, a ruling in favor of Public.Resource.Org may chill commercial efforts at elaborating on and clarifying the law in a manner that could prove detrimental to public understanding of the law.  Georgia argues that the annotations do not themselves have the force of law but are provided as a valuable service that gives context to the law, for which copyright protection is appropriate.  Georgia government officials say the arrangement allows them to create annotated texts in a cost-effective manner, and that their ability to copyright the annotations prevents unsolicited third parties from publishing incorrect statutory language that may ultimately harm Georgia citizens.  A decision from the Supreme Court is expected sometime in 2020.