For the past few years, Public.Resource.org has been publishing a copy of the annotated version of the State Laws of Georgia. The State contends that while the basic Georgia legal code is available to the public, the annotated version, “Official Code of Georgia Annotated,” is a paid version. Annotations are similar to encyclopedia articles, containing everything from similar cases, related decisions or the legislative history that brought about the law’s passage. They are not designed to be comprehensive nor are they written for every topic. Often, annotations revolve around specific legal issues, especially those highly controversial areas of the law which they can help explain in greater depth. By making the paid annotated version available to the public for free, Georgia claims that Public.Resource.org (and its founder, Carl Malamud, who the New York Times described as a “self-styled Robin Hood of the information age”) is infringing on its copyright. After two years of trying to get Malamud to remove the annotated laws, Georgia has decided to sue Malamud for copyright infringement.
Malamud claims that he has the right to publish the annotated laws since “it is a long-held tenet of American law that there is no copyright in the law. This is because the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves. Requiring a license before allowing citizens to read or speak the law would be a violation of deeply-held principles in our system that the laws apply equally to all.”
Georgia claims that it is not disputing that the laws of Georgia are, and should be, free to the public. However, they claim that Public.Resource.Org has no right to republish the annotated version of Georgia’s code, which is created by a third-party legal publisher as a work for hire under contract with the state legislature. Under the work for hire doctrine, the copyright in a specially commissioned creative work will be owned by the hiring party rather than the creator. The question is whether the annotations rise to the level of copyrightable subject matter.
Is Publishing Annotated Laws an Infringement?
Malamud is correct that when he claims that that there is no copyright in the law because facts are not copyrightable. No matter how eloquently a fact is presented, it will not rise to the level of originality that is required for copyright protection. Weather forecasts, sport stats or posting an event on Facebook are not copyrightable. When Paris Hilton tweeted, “I didn’t go to England, I went to London;” as entertaining as that might be, it was not copyrightable. This rule is not a new one. The Supreme Court weighed in on it back in 1834 when it unanimously decided that “no [court] reporter has or can have any copyright in the written opinions delivered by this Court, and that the judges thereof cannot confer on any reporter any such right.” Later, the Court expanded the rule to include “the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”
There are several rationales behind the Court’s opinion. One is that the public is really the authors, not the judiciary. The public elects its officials to do their bidding, and often weigh in and shape the laws either through lobbying efforts or through suggested changes during the bill’s public comment period. Another is that the copyright, by protecting a creative work, incentivizes the authors to create works for which they can receive compensation, without fear that someone will steal their work and reap the rewards of the author’s efforts. That incentive is unnecessary because judges, who write the opinions and the legislature who make the laws, are employees of the state and have already been bought and paid for by the citizenry (a kind of public work for hire doctrine). A third reason is due process; without open access to the law, citizens are denied due process.
However, the annotations are not created by the judiciary or legislature, but instead by a third party company. Georgia believes that each annotation is an original and creative work of authorship and not a law, which are therefore protected by copyright, owned by the State. If the authors of the annotation were not under a work made for hire contract, then they would hold a copyright in the annotations. The fact that the State made a work for hire should transfer the copyright to the State. In fact, if the contract were not a standard work for hire agreement, the company could license the annotations to the State along with the right to defend the copyright. In that case, Malamud would be infringing, assuming that the annotations are copyrightable.
To be copyrightable, a work must be an original work of authorship. To be original, an author must have created the work independently, without copying. The work must be an execution of the author’s idea; one that carries the author’s aesthetic or meaning. It must also have at a minimum, a hint of creativity. The level of creativity required to receive copyright protection is fairly low, all that is required is some creative spark, no matter how crude, humble, or obvious it might be. Annotations are informed by the opinions of the author but also are factual in nature, describing the case law or other legal explanations. In some cases, they may be more than just facts or quotes from legal cases. They may include a certain level of opinion in the expression or in the choice of what to include in the annotation. The creativity may manifest in the same way that that a biography details the facts of the subject’s life but also express the author’s opinion on how those factual events influenced the subject’s life. So it is not clear whether, when taken as a whole the annotation rise to the level required for copyright protection.
Legal service sites, such as Westlaw and Lexis Nexis tend to support the State’s position, since they are often the ones who prepare the annotations for the State. Ed Walters, chief executive officer of the legal research site Fastcase, weighed in on the issue saying that he believes individuals must have free and open access to the law if American democracy is to work. But he also believes those who supplement the legal documents have a legitimate interesting protecting that original content.
However, Fastcase, Westlaw and Lexis Nexis are private companies and should receive protection for their creative works, otherwise they couldn’t survive. However, Georgia is not a private company, but a governmental body that many believe should be held to a different standard. After all, there is something innately wrong with the Government holding back from the public, information that may help the public understand the laws that Georgia creates. “Equal protection of the laws and due process are jeopardized if some citizens can afford to purchase access to the laws that all of us are bound to obey—with potential criminal penalties for noncompliance—but others cannot,” Malamud said at a Congressional hearing in 1993. “Access to justice should not require a gold card.”
Does Copyright’s Merger Doctrine Apply to Annotations?
Of course, Malamud disagrees with the entire concept of separating the annotations from the law. The Official Code of Georgia Annotated is a publication of the state, and it is the definitive statement by the state of the law. Any citizen wishing to read the Official Code of Georgia Annotated would have trouble distinguishing between the ‘statutory text itself’ and those materials outside the box. No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law.”
In one sense, Malamud is correct. Laws need to be interpreted. The Founding Fathers vested the courts with the power to interpret the laws and decide concrete factual cases. They knew that laws could be ambiguous. Any court case against the State is due to each side having a different interpretation of the law, otherwise there would no reason to bring the case to court. Sometimes the ambiguity in statutory language is the result of rushing the law through the legislature. Sometimes the legislature cannot agree on specific terms so intentionally make the language vague, so that the law can pass, leaving it to the courts to interpret it. In other cases, the law is designed for a particular purpose but has some spillover effect to other situations not originally anticipated, so the courts must interpret the laws application to this new situation. In an attempt to interpret the law, courts and lawyers look at precedent, which are the courts decisions from similar cases. The court will also look at cases in other federal districts or state courts that have similar statutes to see how those courts resolved the cases. Annotations are used in much the same way, as a means of analyzing the legislative intent so that the court follows not just the text of the statute but the spirit of the law.
While relevant cases are available to help the courts, the lawyers and the public analyze the cases, the annotation require a fee. Malamud believes that without access to the annotations, the public does not have the information that it needs to effectively analyze the case and prepare an effective strategy. But the annotations are not law, but merely a secondary source, written by a third party, that helps to better understand the case. The choices the authors made made as to which material should be referenced may not be the best choices or be complete. So can they really be tied to the laws? Although helpful, secondary sources are not binding and rarely free. For example, Nimmer on Copyright, a multi-volume legal treatise on copyright law is widely cited in U. S. courts, and has been influential for decades as the leading secondary source on United States copyright law. The treatise is expensive yet often an important when interpreting copyright law. However, Nimmer is not owned by any government. The annotations are owned by the State of Georgia, which changes the analysis.
“The ability to know the law, to read the law, is essential to the functioning of our democracy,” Malamud says. He adamantly believes that it is impossible to truly understand a law without having access to the information contained in the annotations. They are tied to each other. Here, Malamud is referring to a variation on a copyright law principle known as the Merger Doctrine. When there is only a limited number of ways to express an idea, copyright law will not protect that expression because the expression is inherent, or has “merged” with the idea itself. Since ideas are not copyrightable, neither is the merged expression of the idea. In this case, the merger is the expression of an idea with facts, and since facts are not copyrightable, then the annotations are not either.
The counter argument however, is that the annotations are not actually facts at all, but opinion infused ideas. When facts are merged with expression of ideas, the idea takes precedent and the total expression may be copyrightable. It is hard to say one way or another which approach is correct as each annotation is unique. Think of a person selling a car online. There are facts about the car and then there is the opinion about the car in the description. The description may or may not be creative, depending upon the author. As well, a meteorologist reporting the weather may also have opinions on how a storm might affect residents or other areas of concern but could the ideas be separated from the facts enough to give the expression the creativity needed to be copyrightable?
So while on its face, the case seems ridiculous, in fact, the analysis is a bit more complicated. How the court’s will react is anyone’s guess. Unlike the vast majority of copyright cases which usually settle, this case could set an important precedent with a dramatic effect on the future of Malamud’s business so he may not want to settle. Whatever the outcome, it will likely be appealed, so it may be years before anything is resolved.