Robert Ambrogi Blog
I wrote last week about the lawsuit filed by Fastcase against Casemaker challenging Casemaker’s claim that it has exclusive rights to publish and license the Georgia Administrative Rules and Regulations. Casemaker’s parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the regulations and giving it the right to license that content to other publishers. But Fastcase maintains that public law is in the public domain and not subject to copyright. It is an important case that could have broad-reaching implications for legal publishing in the United States.
Even before Fastcase filed its lawsuit, there was another case pending in federal court in Georgia that raised a similar issue. Last July, the state of Georgia sued Public Resource, a site run by Carl Malamud that is devoted to making government information more accessible to the public at large, over its copying and publishing of the Official Code of Georgia Annotated.
According to the complaint:
This action for injunctive relief arises from Defendant’s systematic, widespread and unauthorized copying and distribution of the copyrighted annotations in the Official Code of Georgia Annotated (“O.C.G.A.”) through the distribution of thumb drives containing copies of the O.C.G.A. and the posting of the O.C.G.A. on various websites. Defendant has facilitated, enabled, encouraged and induced others to view, download, print, copy, and distribute the O.C.G.A copyrighted annotations without limitation, authorization, or appropriate compensation. On information and belief, Defendant has also created unauthorized derivative works containing the O.C.G.A. annotations by re-keying the O.C.G.A. in order to make it possible for members of the public to copy and manipulate the O.C.G.A., thereby also encouraging the creation of further unauthorized derivative works.
It continues:
The copyrighted annotations include analysis and guidance that are added to the O.C.G.A. by a third party publisher of the O.C.G.A. as a work for hire. These annotations include synopses of cases that interpret the O.C.G.A., summaries of Opinions of the Attorney General of Georgia, and summaries of research references related to the O.C.G.A. Each of these annotations is an original and creative work of authorship that is protected by copyrights owned by the State of Georgia. Without providing the publisher with the ability to recoup its costs for the development of these copyrighted annotations, the State of Georgia will be required to either stop publishing the annotations altogether or pay for development of the annotations using state tax dollars. Unless Defendant’s infringing activities are enjoined, Plaintiff and citizens of the State of Georgia, will face losing valuable analysis and guidance
regarding their state laws.
That last point is important because it is the key distinction between this case and the Fastcase/Casemaker case. Before there can be copyright, there must be originality — there must be some original work of authorship. In the Fastcase lawsuit, there is none. Casemaker is publishing the regulations exactly as it receives them from the government, without editorial enhancements of any kind. By contrast, in this case, the legal publisher Matthew Bender (which is owned by LexisNexis) is adding annotations to the raw code and it is that annotated version that Public Resource is publishing.
Under its contract with Georgia, Matthew Bender editors create summaries of judicial opinions and add them to the relevant code sections. Georgia gives it the exclusive right to publish this annotated version, both in print and electronically. In order to create judicial summaries, LexisNexis selects and reads
In order to create judicial summaries, LexisNexis selects and reads relevant judicial decisions. LexisNexis then distills each relevant decision down to a single paragraph. The succinctness and accuracy of the judicial summaries are in large part what make them valuable to attorneys and others researching the Code. Accordingly, the text of the judicial summaries of the O.C.G.A. must be and is
carefully crafted by LexisNexis in order to illustrate and interpret the Code sections of the O.C.G.A.
Georgia says that it does not claim copyright in the actual statutory text. In fact, its contract requires Matthew Bender to publish the statutory text online, free of charge. (You can http://www.legis.ga.gov/find it here.)
In its answer and counterclaim, Public Resource admits that it copied and distributed the O.C.G.A. but it denies that Georgia holds any valid copyright in it.
Plaintiff has no copyrights in works that government entities have enacted as law. The O.C.G.A. including annotations, regardless of how they were authored, is the law of Georgia, and the law should be free to the public. As such, the O.C.G.A. is not copyrightable subject matter and is in the public domain.
Public Resource’s counterclaim seeks a declaratory judgment that Georgia has no copyrights in works that government entities have enacted as law.
The O.C.G.A. including annotations, regardless of how they were authored, is the law of Georgia, and the law should be free to the public. As such, the O.C.G.A. is not copyrightable subject matter and is in the public domain.
In language that reads like a manifesto for the free-law movement, the counterclaim continues:
The people are the authors of the law, regardless of who first pens the words that later become law through enactment by a legislature or public agency.
The principle that the law must be public and available to citizens to read and speak has its roots in the concept of the rule of law itself.
The legal principle that ignorance of the law is no defense presumes that all citizens have access to the law.
The First, Fifth and Fourteenth Amendments to the Constitution require that all people have the power to read, speak and disseminate the law.
Laws and regulations are in the public domain and not subject to copyright.
Law and regulations do not lose their public domain status and become subject to copyright because they were drafted by a private party as “works for hire.”
Laws and regulations do not lose their public domain status and become subject to copyright because they incorporate material that private parties have drafted or prepared.There is only one way to express a particular law fully and
There is only one way to express a particular law fully and authoritatively, namely with explicit reference to any matters that the law incorporates into itself.
Once the Legislature incorporates material into the official version of the Code, use of that material by the public or private parties is lawful through the doctrine of merger.
While this case and the Fastcase lawsuit raise parallel and overlapping issues, they are different cases. Because this one involves a private publisher’s editorial annotations, it is somewhat muddier. The Fastcase lawsuit, involving unadulterated primary law, is much cleaner in the issues it addresses.
That said, both cases stand to be extremely important in their outcomes and to establish precedents — good or bad — that will have repercussions nationwide.