WASHINGTON (CN) – The U.S. Supreme Court agreed Monday to weigh in on the ability of a state to copyright its own official annotated codes, after an appeals court panel ruled Georgia could not.
The court battle goes back to 2015, when the Peach State sought an order forcing U.S. technologist and public domain advocate Carl Malamud to stop making the state code available online free of charge.
But Malamud told Courthouse News shortly after he was sued by the state that “the code, including the annotations, belongs to the people.”
“If the attorney general wrote a haiku in the body of Georgia state law, that too would belong to the people,” he said.
The fight between Georgia and Malamud has actually been going on since 2013, when he first sent thumb drives with the annotated law to the House of Representatives.
Malamud holds that the government should not charge its people for laws that constitutionally belong to them.
“It goes back to Magna Carta … it’s a longstanding principle. It’s fundamental to the way our democracy works,” he told Courthouse News in 2015. “However, there’s a large part of federal and state law that isn’t readily available to the public and costs money to access.”
The 11th Circuit agreed and sided with Malamud last October.
“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,” U.S. Circuit Judge Stanley Marcus wrote. “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.”
In Georgia’s petition to the U.S. Supreme Court, attorney Anthony Askew with the Atlanta-based Meunier Carlin & Curfman wrote that the 11th Circuit’s decision “threatens to upend the longstanding arrangements of Georgia and numerous other states that rely on copyright’s economic incentives to create and distribute annotations useful to guide legal research.”
The petition says four other circuits “disagree regarding the scope and rationale of the government edicts doctrine,” which created an exception to copyright protection for works that have the force of law.
The state also argues LexisNexis plays a unique role in distributing the annotations and “could not recoup its significant investment… in developing the annotations.”
“If the Eleventh Circuit’s decision is allowed to stand, Georgia will likely be required either to use tax dollars to pay for preparing and publishing the annotations, or cease publishing them altogether,” Askew wrote.
But attorney Elizabeth Rader of Calliope Legal, representing Malamud’s website Public.Resource.org, wrote in a reply brief that the case is ripe for the Supreme Court to “clarify, authoritatively, how courts should analyze whether a given work is an uncopyrightable government edict.”
“Respondent’s mission is to harness technology’s power to improve public access to all sources of the law,” Rader wrote. “Respondent is no scofflaw, but is regularly threatened with copyright infringement lawsuits like this one for posting materials it sincerely believes are in the public domain. Legal research providers, teachers, librarians, lawyers, and the general public all also need to know the scope of copyright protection, if any, for such materials.”
Per its custom, the Supreme Court did not comment on its decision to take up the case. A hearing date for oral arguments has not yet been set.
Josh Johnson with the D.C.-based firm Vinson & Elkins, another attorney representing Georgia, said in a statement that the state is looking forward to defending its ability to copyright legal materials.