The State of Georgia is suing Carl Malamud for re-publishing the Official Code of Georgia Annotated (OCGA) without permission. The State claims that unlike the underlying state law which is in the public domain thanks to §105 of the US Copyright Act 1976, the annotations and aggregation of the relevant caselaw by LexisNexis which, along with the statute law, comprise the OCGA, constitute an original work which is subject to copyright. Indeed according to the State's complaint (pdf) to the District Court for the District of North Georgia, the copyright has been registered with the US Copyright Office.
As LexisNexis, through its subsidiary company Matthew Bender and Co, Inc, was contracted to produce the OCGA, the claimant says it is a work-for-hire, and therefore the State is first owner of the copyright and thus has standing to bring the claim. Carl Malamud is being sued through his corporation Public Resource.Org.
In a somewhat ironic turn of events LexisNexis was itself sued back in 2012 for copyright infringement when it included legal submissions from a lawyer called Edward White in its 'Briefs, Pleadings and Motions' database. (Edward L White v Westlaw and LexisNexis SDNY 12 Civ 1340 (JSR)). On that occasion the use of the attorney's work by Westlaw and LexisNexis in this manner was found to be transformative and therefore fair use.
We don't yet know how Carl Malamud will defend this action. One has to hope he (or more likely his attorney) will do a rather more legally cogent job than the strident argument put forward by Mike Masnick on the TechDirt website. Masnick's comments largely follow those of Malamud himself (see link below) and centre on his assertion that the law should be freely available to the citizens of the State of Georgia (and others) and this move to protect the annotated version of the code somehow violates that principle. However a more considered view shows that the State of Georgia's case has some merit.
17 USC §105 (Subject matter of copyright: United States Government works) which denies copyright protection to government works, includes both the statutes and the judicial opinion and rulings of the courts at Federal and State level. This follows a number of landmark cases including Wheaton v Peters 33 US (8 Pet) 591, 668 (1834), Banks & Bros v West Publishing Co 27 F 50 (CCD) Minn, 1886, right up to the case of the State of Georgia v The Harrison Company 548 F Supp 110 (N d Ga 1982). Indeed the last cited case involves many of the same factors as in the current case. Perhaps the best summary of the situation concerning the so-called Edicts of Government can be found in the US Copyright Office's Compendium Section 206.01:
206.01 Edicts of government.It should be noted that although edicts of government include state legislation and court judgments etc, the overall purpose of §105 applies only to the Federal government and not to the States. Thus if the annotations, as opposed to the state code itself, are held to copyrightable in their own right, the State of Georgia is not legally bound to release them into the public domain. §101 of the Copyright Act says this about derivative works:
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. (my added emphasis)
So far Carl Malamud has not filed his response to the claim with the court, but from a letter he wrote to a number of Georgian politicians about the case, it appears that unless he can come up with a compelling argument that his is fair use, it would seem that all the court needs to decide is whether the annotations provided by LexisNexis amount to an original work of authorship. Given that users need to pay to access the annotated version they publish*, we have to assume that LexisNexis think it is.
* Westlaw also produce their own annotated version of the Georgia State Code which retails at $1,753 for the hardback 3 volume set, in which they claim copyright.