Good News in Copyright

The Supreme Court has ruled that annotations of state law produced by the State of Georgia is not subject to copyright protections.

It was a 5-4 decision, with the votes nearly evenly distributed between the liberal and the conservative wings of the court, which shows that IP maximalism is a bipartisan endeavor:

A narrowly divided US Supreme Court on Monday upheld the right to freely share the official law code of Georgia. The state claimed to own the copyright for the Official Code of Georgia, Annotated, and sued a nonprofit called Public.Resource.Org for publishing it online. Monday's ruling is not only a victory for the open-government group, it's an important precedent that will help secure the right to publish other legally significant public documents.

"Officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties," wrote Chief Justice John Roberts in an opinion that was joined by four other justices on the nine-member court.

Everyone involved in the case agreed that the text of state statutes could not be copyrighted. But the state of Georgia argued that it could copyright annotations that are distributed with the official code. These annotations provide supplemental information about the law, including summaries of judicial opinions, information about legislative history, and citations to relevant law review articles. The annotations are produced by a division of legal publishing giant LexisNexis under a work-for-hire contract with the state.

The copyright status of the annotated code matters because the state doesn't publish any other official version. You can get an unofficial version of state law for free from LexisNexis' website, but LexisNexis' terms of service explicitly warned users that it might be inaccurate. The company also prohibits users from scraping the site's content or using it commercially. If you need the official, up-to-date version of Georgia state law, you have to pay LexisNexis hundreds of dollars for a copy of the official version—which includes annotations.

Public.Resource.Org defied Georgia's rules and published the entire code, including annotations, on its website. The group argued that as an official document of the state legislature, it couldn't be protected by copyright. The state sued and won at the trial court level. The 11th Circuit Court of Appeals reversed that ruling and sided with the non-profit. In an unorthodox move, the people at PRO urged the Supreme Court to review the case, even though doing so could reverse their appellate win, because they wanted to set a nationwide precedent.

The group's gamble paid off—but just barely. Five justices bought PRO's argument that Georgia's official code was in the public domain. Four justices dissented and would have allowed the Peach State to copyright portions of its official legal code.

IP, both copyright and patent, are a cancer on our economic system, encouraging and extending rent-seeking behaviors (The Sonny Bono Copyright Act^*) which interfere with economic efficiency and exacerbates inequality.

When vetting the next SCOTUS nominee, their record on IP needs to be under a microscope.

^*It's literally Mickey Mouse legislation.