SCOTUS: Can Legal Texts be Copyrighted?

Texts and Copyrights

A complex legal battle began when the State of Georgia contracted with the LexisNexis Group, a private company, to produce and publish an annotated version of the state’s legal code. This version includes citations to relevant cases, as well as analysis and opinions from the state’s Attorney General. Under the terms of the contract, the state claims copyright protection over the annotated text and grants LexisNexis exclusive publication rights.

The state continued to make a simple text version of the legal code available for free online. The annotated edition from LexisNexis is only available for purchase, though, presumably by attorneys, academic libraries, and other legal insiders. The annotated edition was objected to by Public.Resource.Org, an open government watchdog group that claims that charging money for the volume of edicts created an unreasonable barrier to access for people who may not be able to afford a copy. The organization republished a free version of the annotated one on its own, daring the state to respond.

The State of Georgia Fighting Back

The State of Georgia took the bait, suing Public.Resource.Org for copyright infringement. Attorneys for the state made the case that the annotated edition was not itself a legal edict, but simply a commentary on the law. The District Court for the Northern District of Georgia agreed with the State of Georgia and ruled that the annotated edition was eligible for copyright protection. They said that Public.Resource.Org violated the state’s copyright by republishing the text without permission.

Appealing the Decision

This decision was overturned by the Eleventh Circuit Court in October 2018. In a strongly worded response, the three-judge panel stated that citizens have a right to “unfettered access to the legal edicts that govern their lives” and clarified that even an annotated version of the state’s legal code should still be considered “inherently public domain.”

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 key to the verdicts. In concluding that this annotated version embodies a legal edict, the Eleventh Circuit highlighted the Attorney General’s participation as one element in the analysis that indicated the formality of the document and its binding nature on Georgia residents. Georgia State then appealed to the Supreme Court, which accepted the case on June 24. Public law advocates fear that 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 by. They also 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.

Public Understanding of the Law

Alternatively, a ruling in favor of Public.Resource.Org may discourage commercial efforts at elaborating on and clarifying the law in a manner that could prove detrimental to public understanding of the law. The State of Georgia and its supporters argue 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 prevent unsolicited third parties from publishing incorrect language about laws that may ultimately harm Georgia citizens.

The Supreme Court last addressed the question of copyrightability of governmental works in 1888, when it clarified that state court judges speak for the people so that their opinions are not subject to copyright law. It is possible this issue will be decided by SCOTUS as early as later this Fall or Winter.

If you want to learn more about this, contact an intellectual property lawyer, like an intellectual property lawyer in Naperville, IL, for more information today.

Thanks to The Law Offices of Konrad Sherinian for their insight into whether or not legal texts can be copyrighted.

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