Via TechDirt, I learned that Carl Malamud, proprietor of Public.Resource.org, was sued last week by the State of Georgia for copyright infringement. Malamud is perhaps the leading advocate in the world for putting primary legal materials — statutes, case law, dockets, etc — on the internet. He’s also the leading advocate for making those same legal materials part of the public domain under copyright law, so they can be freely copied and distributed.
This isn’t the first time Malamud has been sued for his efforts. He’s been sued before for publishing technical standards: check out this ABA Journal article from June 2014 and this opinion piece by Malamud from February of this year. (As far as I can tell, none of the cases have reached the point of dispositive rulings.) The lawsuit brought by the State of Georgia is, however, to my knowledge the first time he’s been sued by the government itself — a situation that raises a host of troubling questions aside from the details of copyright law.
Malamud is accused of distributing copies of the “Official Code of Georgia Annotated.” According to the Complaint:
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.
The “third party publisher” in question in LexisNexis. I’m quite familiar with LexisNexis; I am the co-author of a legal guide published by LexisNexis, one that includes plenty of “synopses of cases” and “summaries of research references” related to Pennsylvania law. I know all too well that it takes a substantial investment of time and energy to produce these works and to keep them updated with current changes in the law, and I’d be awfully upset if Malamud posted the whole thing online.
However, the Commonwealth of Pennsylvania has absolutely nothing to do with my legal guide. The government does not subsidize my work in any fashion, and they certainly don’t direct citizens, legislators, and courts to refer to it as an authoritative text.
That’s in sharp contrast to the situation in Georgia:
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.
The Legislature contracts with a publisher, currently Matthew Bender and Company, Inc., a member of the LexisNexis Group (“LexisNexis”), a division of Reed Elsevier Properties, Inc., to publish an annotated version of the State laws as the O.C.G.A. Pursuant to this contract (“Code Publishing Contract”), and in order to allow LexisNexis to recoup its publishing costs, LexisNexis is permitted to sell the O.C.G.A., with the copyrighted annotations, in both hard bound book and electronic format for a set fee.
This makes sense at first glance but, on reflection, it makes no sense at all. To me, these are the three troubling questions it raises:
- Why is the State of Georgia hiring a private entity to create a “work for hire” interpreting its laws?
- Why is the State of Georgia “publishing the annotations” made by a private entity as an authoritative source on the law?
- If the State of Georgia owns the copyright to the annotations, why is it allowing LexisNexis the exclusive right to sell those annotations, and taking action to enforce that right for LexisNexis?
It is very hard to come up with a reasonable, public policy-based answer to any of those questions. I would understand if LexisNexis, on its own, created an annotated version of the Georgia Code, copyrighted the annotations, then sold those annotations at a profit. I would similarly understand — though I’d have questions — if Georgia hired LexisNexis to draft annotations which were then provided as a source of information to the public.
But it seems here that we have the worst of both worlds: Georgia is hiring LexisNexis to write annotations that Georgia owns but which are treated like LexisNexis’ copyrighted work. In what world is that okay?
Perhaps even worse, it seems that Georgia’s story keeps changing. As the ABA Journal article recounted,
In a video presentation for a 2013 ReInvent Law conference, Walters [CEO of legal research company Fastcase] recounted his experiences with the Georgia state legislature and LexisNexis, saying he became alarmed when he noticed a copyright notice on the state’s official code. He said the legislature refused to let Fastcase use the code, claiming that LexisNexis owned it; and LexisNexis agreed, reasoning that because it had added headlines to every single section of the code, it essentially owned the code.
So two years ago LexisNexis owned Georgia’s code, but now Georgia does?
Apart from the public policy implications — which demand an explanation from the Georgia Code Revision Commission, which compiles and publishes the annotated code — there’s a copyright problem at the core of Georgia’s case. As the Fifth Circuit held in Veeck v. Southern Bldg. Code Congress Intern., 293 F. 3d 791 (5th Cir. 2002), “copyright protection may not be asserted for the text of ‘the law,’” and there is no copyright protection for a text which “serves no other purpose than to become law.” If not “to become law,” then what is the purpose of the annotated code that Georgia hires LexisNexis to create?