Flying under the radar, a recent decision out of the 11th Circuit has profound implications. Code Revision Commissioner v. Public.Resource.Org, Inc., No. 17-11589 (11th Cir. 2018) was decided back in October, but it hasn’t received a significant amount of attention. I imagine that this is largely because the issues involved are fairly dry and most people don’t have a strong grasp of the interplay between statutes and copyright. Nevertheless, if you’re here, I’m imagining that you either (1) already do or (2) are looking to learn.

So, let’s dig into this guy, shall we?

The Facts

The State of Georgia has an official annotated code that is embodied in the Official Code of Georgia Annotated (OCGA). Annotated, as used here, means that there is commentary to the actual, written statutes, provided by the Georgia legislature, that is intended to clarify the laws as written.

Annotated codes are not uncommon, and numerous volumes of texts annotate the applicable state codes with additional relevant information. However, these annotations are usually drafted and compiled by private entities that do the research and print the annotations for profit.

In this case, Georgia is unique. Since 1982, the state legislature has authorized official annotations to the OCGA, which include 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. These annotations are first compiled by a division of LexisNexis and the end result is then owned by the State of Georgia and then leased back to LexisNexis under a lucrative contract.

As a practical matter, any time someone wishes to access, use, or cite to the annotations contained in the OCGA, they must access that information through LexisNexis’ license and pay homage to LexisNexis and the State of Georgia.

In 2013, Public.Resource.Org took it upon itself to challenge the ownership over the OCGA. It purchased all 186 copies of the print version of the OCGA from LexisNexis, then scanned and uploaded the entirety of the texts onto the internet. Almost in an effort to further piss-off Georgia’s legislature, Public.Resource.Org even uploaded the copied OCGA to thumb drives and sent them to every single legislator in the state. Needless to say, Public.Resource.Org wasn’t trying to be quiet about it.

No surprise to anyone, much less to Public.Resource.Org, Georgia’s Code Revision Commission sued Public.Resource.Org in 2015 to make it stop. 

The Law

The first general concept to understand is that copyright laws are designed to protect the authors of works. 17 U.S.C. § 101 et seq. The second concept is that the “authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” This second concept is embodied in a specific carve-out from the Copyright Act that exempts from protection works by the government. 17 U.S.C. § 105.

These two competing concepts have been litigated since as early as 1834. In various rulings, the courts have determined that the work of government agents does not constitute authorship under the protection of the Copyright Act. Banks v. Manchester, 128 U.S. 244 (1888). Further, the compelling public policy of ensuring that citizens have access to the law under which they are bound presses the need for free publication. Id.

That said, these protections only apply to the statutes and the opinions rendered on the law by government officials, such as legislatures and judges. A private citizen’s interpretation and writing on those laws and opinions can separately be copyrightable, even though the underlying material is not protectable.

However, that dividing line stops when the work is not done in an official capacity. In other words, just being an employee of the state doesn’t mean that you’re immediately precluded from copyright protection. The case law on the dividing line between these concepts is long and meticulous (for instance, a state-paid court reporter canown a copyright to his court reports, Callaghan v. Myers, 128 U.S. 617 (1888)). The dividing line has generally been interpreted that official reports created within a state agent’s scope of duties cannot be copyrighted, but once those duties are extinguished, additional work may be copyrightable.

Annotations have long been treated in the second category. West and LexisNexis are renowned for the subsequent work they have done to categorize, tag, and group applicable cases into well-defined categories. The law has long-since recognized that these annotations, even though they are based on underlying public domain work, can be copyrighted.

The Ruling

Ultimately, the Code Revision case turns on the level of authority granted to the annotations in the OCGA, or “whether a work is attributable to the constructive authorship of the People, which is to say whether it was created by an agent of the People in the direct exercise of sovereign authority.” Code Revision at 26.

It doesn’t take long to see where the 11thCircuit is going with this opinion: leading with Banksand proceeding through a thorough review of how the law is owned collectively by its people. The 11th Circuit even cites James Madison via The Federalist and Tocqueville. This isn’t looking good for Georgia.

The major deciding factors for the Court were that (1) the annotations were drafted under the oversight of Georgia’s officers, (2) the annotations were proposed to and ratified by the state’s legislature, and (3) the annotations were incorporated and effective as law as provided for in the OCGA’s own provisions.

Finding that the OCGA was “attributable to the constructive authorship of the People,” the 11thCircuit reversed and remanded with instructions to grant judgment in favor of Public.Resource.Org, who had lost on summary judgment in the District Court.

Takeaways

It’s easy to interpret Code Revision as being a limited-scope ruling because of how rare these types of statutes are. The biggest direct result will be the elimination of LexisNexis’ monopoly on the OCGA, which will come as a welcome development for its practitioners.

In my opinion, however, Code Revision sets a bright data point on the current freedom of the law landscape. The government cannot both expect its citizens to not be ignorant of the law while also hiding that law behind copyright protections the government itself claims, and Code Revision supports that proposition. As more and more resources relating to the law are posted online, these issues will become more common. I believe Code Revision is the right ruling for the right reasons.