photo by Ken Lund
At a moment when our politics seem more tribal than perhaps any time since Reconstruction, an arcane dispute over copyright law reminds us that there are still some principles that define us as Americans and distinguish ours from other superficially similar democracies.
The Supreme Court heard arguments Monday in Georgia v. Public.Resource.Org. The case presents the question of whether, and to what extent, a state can claim copyright privileges in its officially published collection of statutes, citations, editorial notes and legislative history.
If this strikes you as the sort of case that only a law professor could love, I hear you. But it caught my eye. My work sometimes leads me to look up laws, regulations or court decisions in Canada or the United Kingdom, and I have noticed that these documents often carry a copyright notice. In Canada, for example, it will typically be presented as “© Her Majesty the Queen in Right of Canada, as represented by the Minister of,” followed by the name of the government department and the year of publication.
American law specifically disclaims copyright in most U.S. government works created by federal employees in the course of their official duties. Specifically, Section 105 of the Copyright Law states: “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” In practice, this means anyone can copy or use any federal statute, regulation or administrative ruling for any purpose without seeking permission, although an arm of the government such as the Smithsonian Institution could hold, say, the rights to an explorer’s journal that is bequeathed to it.
Congress could have extended this statutory rule to cover the states – but it didn’t. In theory, states and their subdivisions can exercise copyright control over the works they create. In practice, however, this power is circumscribed by legal principles that arose in the first 100 years after the United States was founded. In a trio of 19th century rulings, the Supreme Court held that in this country, the law belongs to the people. This applies to the statutes that elected representatives enact, as well as to the decisions that judges write to apply those statutes in the specific factual circumstances that come before them, which become part of the law in the form of precedent that later courts will follow.
In Georgia, statutes are published as part of the Official Code of Georgia Annotated, or OCGA. The exclusive official online and print publisher is a unit of the legal research service Lexis. The OCGA is published under a contract with Georgia’s Code Revision Commission, a 15-member body that includes nine legislators, the state’s lieutenant governor, and five members chosen by the state bar. Although the publisher compiles case citations and other annotations, it does so under the commission’s supervision. The state reserves the copyright to itself. In legal terms, this makes the compilation a “work for hire,” which prevents Lexis from claiming the copyright.
The state’s contract with Lexis requires the service to make an unannotated version of the code available to the public at no charge. The official OCGA sells in print for $404, although this is a discounted price available only to some in-state customers. Standard pricing for similar compilations can typically be several thousand dollars per year, with annual subscriptions required to keep the reference materials up to date.
Public.Resource.Org, the defendant in the case recently argued before the Supreme Court, simply copied the entire OCGA and put it online. When it ignored the state’s demands that it take it down, the state sued for copyright infringement. Georgia was granted summary judgement at the district court level.
But the 11th U.S. Circuit Court of Appeals reversed, in a ruling so sweeping that it seems to have inspired the Supreme Court to take the case, even though it typically prefers to wait until several circuits have addressed an issue to resolve any conflicts.
The appellate decision began with the concept of sovereignty itself. This trait distinguishes America, where the people are sovereign and the government serves as the people’s agent, from the United Kingdom and its Commonwealth, where the sovereign is a single human being who resides at Windsor and reigns, although she does not rule, from Buckingham Palace.
“Under democratic rule, the People are sovereign, they govern themselves through their legislative and judicial representatives, and they are ultimately the source of our law,” Circuit Judge Stanley Marcus wrote for the three-judge appellate panel. “Under this arrangement, lawmakers and judges are draftsmen of the law, exercising delegated authority, and acting as servants of the People, and whatever they produce the People are the true authors.” The district court erred, he added, in deciding that there is a clear distinction between text that carries the force of law – the statutes themselves – and editorial matter that does not, such as the headnotes and citations incorporated into the OCGA.
“It is clear to us that there exists a zone of indeterminacy at the frontier between edicts that carry the force of law and those that do not … In this small band of cases a government work may not be characterized as law, and yet still be so sufficiently law-like” as to be ineligible for copyright, the appeals court added.
“To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia,” the appeals panel concluded. “In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.”
Georgia went before the Supreme Court this week to argue that it ought to have the same ability to copyright its original, nonstatutory material that you or I would have – or that Lexis would have – if we created our own annotated Georgia code, without official authority.
This is another of the many times I wish the Supreme Court would have allowed its hearings to be broadcast. It would have done many American hearts good to see eight justices (Justice Clarence Thomas, as is his custom, stayed silent) question both sides without any sign of the usual liberal-against-conservative teams that mark our most controversial, high-profile disputes. This case represented a genuine search for a place to draw a reasonable line between where the people’s ownership of their own text ends and private property rights – even those in the hands of a state – begin. Although the justices gave little away about how they might ultimately rule, probably because they did not themselves know, there was no sign that they had any inclination to reverse the ancient precedent that answers the question of who owns the law in America.
That answer is: We do.