STATES ATTEMPT TO OVERTURN ELEVENTH CIRCUIT COPYRIGHT DECISION IN U.S. SUPREME COURT
Steven T. Lowe
On April 4, 2019, eight states- Arkansas, Alabama, Idaho, Kansas, Mississippi, South Carolina, South Dakota, and Tennessee- argued in front of the U.S. Supreme Court seeking to overturn an October 2018 Eleventh Circuit decision that wiped out the state of Georgia’s copyright protection to annotations to its official code of laws.
The eight states spent much of their argument focused on the harm the Eleventh Circuit’s decision would have on the 22 states (including California), two territories, and Washington, D.C., which all acknowledge copyright protection for annotations to codes. Annotation to codes are state or federal compilations of laws; in addition to the actual text of the law, summaries of cases, regulations, and attorney general opinions relating to that law can also be found. These states also claimed that without copyright protections, the annotations, which are currently prepared by third-party companies, would become freely available and all these companies would be forced out of business.
In response, Respondents argued: “Despite the advent of electronic legal research, lawyers and non-lawyers alike continue to look to the annotations in annotated codes as a starting point in researching how state law has been interpreted. Thus, the decision ultimately threatens to deprive many states’ citizens of a valuable tool for determining what the law is.”
The Eleventh Circuit wrote in their opinion that “citizens should have unfettered access to the legal edicts that govern their lives.” They further expressed “that the annotations were effectively an extension of state law, making them ‘a work of the people’ and thus ‘inherently public domain material…Answering this question means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives…We conclude that the people are the ultimate authors of the annotations…As a work of the people, the annotations are inherently public domain material and, therefore, uncopyrightable.”
However, the amicus brief filed by the eight states argued: “That [Eleventh Circuit] decision threatens to upend the long-standing arrangements of Georgia and numerous other states that rely on copyright’s economic incentives (i.e., citizens paying for full access to state laws, as opposed to the “basic simple text” available for free) to create and distribute annotations useful to guide legal research while ensuring that the states’ laws are widely disseminated and easily accessible.”
Like many states, Georgia makes a simple text of its code available online but also hires a private firm to create a more robust annotated version, which features citations, analysis and opinions from the state attorney general. The simple version is free, but users must pay for the annotated version. States say the arrangement allows for the cost-efficient creation of more detailed legal materials; critics say it deprives those who can’t afford the fees of full access to the law.
Georgia and its Code Revision Commission are represented by John P. Elwood, Joshua Johnson and Matthew X. Etchemendy of Vinson & Elkins LLP, and Anthony B. Askew, Lisa C. Pavento and Warren Thomas of Meunier Carlin & Curfman LLC.
At the Eleventh Circuit, Public.Resource.Org Inc. was represented by Elizabeth H. Rader and Sarah P. Lafantano of Alston & Bird LLP.
The states are represented by their respective attorneys general.
The SIAA is represented by Andrew J. Pincus and Andrew A. Lyons-Berg of Mayer Brown.
The case is Georgia et al. v. Public.Resource.Org Inc., case number 18-1150, in the U.S. Supreme Court.
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