\n<\/p>\n
Keywords<\/strong>: Copyright, Supreme Court, Georgia, Public.Resource.Org., annotations, OCGA, Government Edicts Doctrine<\/p>\n Introduction<\/strong><\/p>\n One would think that when a state creates an \u201cofficial\u201d code of its statutes, the public would have the right to freely copy and share that collection of laws.\u00a0 One would also think that fair-minded judges would unanimously agree with this point and objurgate any view to the contrary.\u00a0 Well, think again. The 2020 Supreme Court case of Georgia v. Public.Resource.Org. ratifies a point that I make often: much of the copyright law of this country is a messy pig\u2019s breakfast of uncleanly written and historically complex statutes interpreted by complicated, contradicting and fact-specific court cases.\u00a0 This latest case dealt with what many of us take for granted \u2013 the critically important right of citizens to copy and share the official version of laws enacted to govern them.\u00a0 Here\u2019s how the case came about.<\/p>\n The Making Of The Official Code<\/strong><\/p>\n The State of Georgia has one \u201cofficial\u201d code \u2014 the \u201cOfficial Code of Georgia Annotated.\u201d\u00a0 Georgia assembled that code through the work of its legislature\u2019s Code Revision Commission that hired Lexis publishing company to help prepare the code.\u00a0 In preparing the code, Lexis added helpful notes and commentary (\u201cannotations\u201d) regarding the statutes in the code. As helpful as the notes were, they were merely editorial comments that were legally non-binding.\u00a0 Nevertheless, when completed, the published official code included those annotations.\u00a0 The agreement between Lexis and the Commission stated that any copyright in the code belonged to Georgia, but that Lexis had the exclusive right to publish and sell the \u201cofficial\u201d version of the code. \u00a0In exchange, Lexis had to limit the price charged for the official code and also had to make an unofficial version, without annotations, available to the public online for free. \u00a0Lexis charged the public $412 for the official version of the code.\u00a0<\/p>\n Want To Know the Actual Law? \u2013 Buy The Code!<\/strong><\/p>\n The agreed-upon pricing strategy created a consequence that many might find troubling.\u00a0 In this respect, a citizen who could only afford the free, online version of the Georgia code would see laws on the books that one would reasonably assume were valid and in force.\u00a0 However, without the official annotations, one would not know that may of the laws in the cheapo version of the code were laws that were unquestionably not valid.\u00a0 The laws were not valid because \u2013 surprise! \u2013 they had been declared uncon\u00adstitutional by the Georgia Supreme Court.\u00a0 Yet, they were showing up in the code (i.e., \u201cstill on the books\u201d) because the legislature had not gotten around to repealing the laws. \u00a0Thus, the only way readers of the free online code would know that a particular statute was void was if they would do further research on that statute.\u00a0 Meanwhile, those who could afford the expensive, annotated and official version of the statutes, would see notes nearby the judicially invalidated statutes, quickly alerting them to the true status of those statutes.<\/p>\n Georgia Insists That Only It \u2014 And Not The Public \u2014 Owns The Official Code<\/strong><\/p>\n Public.Resourec.Org, Inc. (\u201cPRO\u201d) believed that, notwithstanding the annotations, the official code, being \u201cofficial,\u201d could be copied and freely disseminated to all.\u00a0 The State of Georgia asserted otherwise and claimed a copyright to the official code.\u00a0 It sued PRO in federal district court, claiming copyright infringement, for posting the code online. The key question in the case was whether copyright law protected the editorial and non-binding annotations contained in Georgia\u2019s official code. The district court ruled for the State of Georgia.\u00a0 The court of appeals reversed and found for PRO. \u00a0The Supreme Court agreed to hear the case.<\/p>\n The Supremes Tell Georgia You Cannot Copyright The Official Code<\/strong><\/p>\n In a five to four ruling, the Supreme Court affirmed the ruling of the court of appeals \u2014 but did so for reasons other than those relied on by the court of appeals. \u00a0(The ole\u2019 judicial oxymoron \u2014 affirming by contradiction!)\u00a0 To reach its<\/em> decision the Court had to go back and blow the dust off some really old cases.\u00a0 By old, I mean from the 1800s.\u00a0 These cases, according to the five-judge majority, created a principal called the \u201cgovernment edicts doctrine.\u201d\u00a0 Under that doctrine, government officials, like judges, cannot be the \u201cauthors\u201d of \u2014 and therefore cannot copyright\u2014the written opinions they create in the course of their official<\/em> duties. \u00a0Because the judges work for the public, the \u201creal\u201d author of the judicial opinions is the public. In finding in favor or PRO, the Court extended the government edicts doctrine to explanatory legal materials (annotations) created by a legislative body <\/em>vested with the authority to make law. \u00a0Because Georgia\u2019s official code included notes and comments \u2014 and that code was created by the legislature\u2019s Commission performing legislative duties \u2014 the government edicts doctrine made the annotations ineligible for copyright protection.\u00a0 In other words, because the Georgia legislature made the annotated version of the code the official code, that version of the code could not receive copyright protection. \u00a0If on the other hand, the annotations had been added unofficially<\/em> to the compilation of statutes by a private publisher, then according to the dusty old cases that compilation of the statutes could receive copyright protection. \u00a0Got it?<\/p>\n The Decision Is Fundamentally Important<\/strong><\/p>\n It is no overstatement to say that the decision of the Supreme Court critically impacts all citizens.\u00a0 Had the Court ruled in Georgia\u2019s favor, all of the annotations included in the official code, and therefore the official code itself, would be copyright protected.\u00a0 Citizens wanting to copy, distribute or display that code would face potentially crippling civil damage awards, if not criminal penalties \u2014 unless they could prove fair use.\u00a0 Ordinary citizens, however, cannot afford to hire lawyers to defend them and argue fair use.\u00a0 \u00a0The truth is, defending a claim of copyright infringement on the basis of fair use is neither easy, nor cheap.\u00a0 As Justice Roberts noted in his majority opinion, fair use is not a simple determination; it is \u201cnotoriously fact sensitive and often cannot be resolved without a trial.\u201d\u00a0 (Amen, Chief Justice Roberts!)<\/p>\n This Proves How Complicated And Unsettled Copyright Law Is.<\/strong><\/p>\n In the end, this case proves that average citizens should do their utmost to steer clear of copyright disputes.\u00a0 There is usually nothing simple about the typical copyright case.\u00a0 In this latest Supreme Court case, the majority opinion took eighteen pages to justify its decision.\u00a0 Justice Thomas\u2019 dissent took seventeen pages and Justice Ginsberg\u2019s dissent added another four pages.\u00a0 The fact that the difference in the ruling was only one vote, emphasizes that predicting the outcome of a copyright case is like throwing darts in the dark. \u00a0Indeed, accounting for the rulings of the district court and the court of appeals, the case spawned at least five opinions.\u00a0<\/p>\n If it takes judges (who have years of legal education and experience, as well as armies of law clerks to help them with legal research) that much work and arguing amongst themselves to reach a ruling (a disputed ruling at that) on a fundamental point, how reasonable is it to expect the average citizen to ever understand that same point?\u00a0 The clear answer is \u2014 it is not reasonable.\u00a0\u00a0<\/p>\n Your best protection against getting pulled into a costly copyright dispute is to think very carefully before you copy and distribute someone else\u2019s work.<\/p>\n<\/p><\/div>\n