Last week, we wrote about the fact that the State of Georgia is suing Carl Malamud for posting PDFs of the Official Code of Georgia Annotated, and sending them around. I’ve been discussing this with a number of lawyers and other experts over the weekend and have to say that I made a significant error in the original post, which I apologize for. I said that courts frequently rely on the annotations of the law, thus effectively making them a part of the law. This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that’s no excuse. I should have checked it out and I did not.
The situation is, admittedly, more complicated. I still believe that the State of Georgia is incorrect both legally and morally in deciding to go down this path, but it is at least slightly more nuanced than the original article suggested, so let’s dig in and explore the thinking. The state of Georgia hired LexisNexis to create these annotations, and LexisNexis then assigns the copyright that it receives on those annotations over to the state of Georgia. Part of the deal between Georgia and LexisNexis is that LexisNexis does the work and the state gets the copyright, but then LexisNexis gets to host the “official” copies of the laws of the state, while selling that annotated version (in both digital and paper versions). The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees.
The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright. There is some creative choice in selecting what to cover and how to cover it, though significant parts of it are factual (names of cases and whatnot). As some pointed out, LexisNexis competitor WestLaw also offers its own annotated code of the state and sells it itself, and pretty much everyone is comfortable with the copyright there.
So, what’s different here? Well, for one, part of the deal with LexisNexis is that after writing the work, the company transfers the copyright to the state itself. Some have pointed to the fact that under federal copyright law the federal government cannot get copyright on works of its own creation, but that does not really apply here in two separate ways. First, there’s some dispute over whether or not those same rules apply to state governments as well — with many arguing that without it being explicit, states can copyright their own creative works. The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright. And, that’s clearly the situation here.
So, yes, it’s reasonable to argue that the original annotations should and did receive copyright protection. And it’s also reasonable to argue that the state technically still has control over that copyright upon assignment by LexisNexis. From there, however, the legal issues get a bit more cloudy. The state of Georgia still does call the resulting publication the “Official Code of Georgia Annotated.” And at the very least, at that point, you have to wonder why any aspect of the “official” laws of Georgia should be covered by copyright. Indeed, as LexisNexis points out on its own site, this “copyright” covered version of the law is “essential” to understanding the law and includes “guidance from the Georgia Code Commission.”
The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme
Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia’s construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:
Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.
In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an “edict of government,” as the US Copyright Office has declared such to be not copyrightable “for reasons of public policy.”
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
Given how the state of Georiga touts the OCGA as being “essential” and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the “Official Code of Georgia Annotated” is an “edict of government” and thus “not copyrightable for reasons of public policy.”
Even if the courts somehow disagree with that, it would seem that Malamud also has a reasonably strong argument for fair use (though it’s not a slam dunk — but fair use is almost never a complete slam dunk). The “purpose and character” of the use and “the nature of the copyrighted work” would likely lean strongly towards fair use, and I would argue that while the last two factors may lean against fair use, the overwhelming nature of the first two should outweigh that when looked at as a whole. If you recognize that the purpose and character is to “let Georgians understand their own law,” then the fact that Malamud released all of it should be seen as appropriate and reasonable, rather than excessive.
Finally, let’s take this a step further and say that even if the copyright is legit and that this somehow isn’t fair use… there remains a pretty essential question: is this appropriate for Georgia to act this way? The only “public benefit” argument that Georgia has on its side is that this current arrangement with LexisNexis saves taxpayer money, because the state doesn’t need to pay to create annotated state codes. But that assumes that the state needs to pay to create annotated code. It’s not clear that it does. WestLaw creates its own, and it seems likely that LexisNexis would continue to create its own as well should the state end this particular arrangement. If it’s arguing that those wouldn’t be the “official” ones, then there’s a point there, but a minor one. First, this actually undermines the state’s argument somewhat, in making it clear that it thinks the annotated code is really important in understanding the law. If that’s true, then it’s totally reasonable to spend taxpayer money on it — just as they spend taxpayer money in paying the legislators who write the code, because that’s exactly what taxpayer money is for.
And then there’s this simple point: if the state of Georgia really believes this annotated code is so important, then it has a moral imperative to make it freely and widely available, rather than lock it up with copyright, such that only big law firms have a copy. It is essentially setting up a system by which only the lawyers are allowed to fully understand the law, and that’s no way to run a government “for the people.” That it has decided to not only lock up this code, but then to attack Carl Malamud by falsely claiming he’s looking to “control access” to these annotations and to quote him totally out of context in claiming that he’s doing a form of “terrorism,” is just sickening. If the State of Georgia believes in having an informed public, this whole lawsuit is ridiculous, both from a legal and moral standpoint.