1709 Blog: for all the copyright community

Saturday, 25 July 2015

Annotated state laws of Georgia on my Mind

An interesting legal scuffle has emerged in the US State of Georgia concerning the copyright claimed in the annotated version of the Georgia State Code, published on behalf of the State by LexisNexis.

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.

Firstly it is settled law that 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.

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.
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:
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.


J. S. Greenfield said...

In concluding that the only question seem to be whether the annotations amount to an original work of authorship, you seem to ignore the essence of Malamud's argument in the letter you cite -- which is, in effect, that the annotated code is the official law. (And if so, the Copyright Compendium indicates that it should not be registrable.)

Do you simply presume this to be the case? Or is there an argument for such that you are not presenting?

I won't claim to know the answer, though it seems to me that compelling evidence to determine this ought to be easily available. i.e., if a court or administrative office has ever cited an annotation in the annotated code as a definitive reference, in making an official determination, that would seem pretty strong evidence that the annotated code has the force of law, and is not copyrightable. On the other hand, if no court or administrative office has ever done such, that would seem pretty string evidence to the contrary.

Regardless, from a public policy perspective, what is the argument that it constitutes good public policy for a state to restrict a work of this nature, that the government itself produces? Regardless of whether this work is or isn't copyrightable, under existing law, I must confess that I am at a loss as to how it would be any better public policy to restrict distribution of this document, than it would be to restrict distribution of the (unannotated) laws, judicial opinions, administrative rulings, etc., themselves.

Is there actually somebody prepared to make the public policy argument in favor of such restriction?

Andy said...

Thanks for your comment. I don't think the annotated version of the code can be called the official law. If we think of the 'official law' as made up of two main components namely the statutes passed by the Georgia State legislature and the common law - the decisions of the court - then both of these are recognised in the Copyright Act and the Copyright Compendium as being works which are not subject to copyright, whether they occur at the State or Federal level.
The annotations are headnotes or keywords which aim to summarise the main issues in the caselaw and are generally speaking the opinion of a lawyer or paralegal who has read through the opinions and judgments so saving other lawyers from having to do this. I can think of no circumstances when a court or lawyers participating in a case before a court would ever cite the annotation because it has no legal validity on its own. The annotations merely act as signposts which direct the lawyers to the specific opinions or judgment in a case which may support their argument and it is this caselaw which will be cited in court. The fact that publishers such as WestLaw and LexisNexis can charge around $1500 for their annotated versions (which incidentally differ in their annotations) shows that this service is of value to members of the legal profession generally.
Mike Masnick on Techdirt made a similar comment to yours (presumably based on Malamud's assertions) and had to issue a retraction after practitioners in the law pointed out the error.

J. S. Greenfield said...

If Masnick retracted his comment, I can't imagine it was similar to mine -- since fundamentally I simply posed a question around this point. I didn't make an assertion of fact one way or the other.

And the question is not a ridiculous one, since the Copyright Compendium specifically allows for the case where such annotations do have the force of law: "...the Office may register annotations that summarize or comment upon legal materials issued by a federal, state, local, or foreign government, unless the annotations themselves have the force of law."

I don't think there's any debate as to whether such annotations are of value (to the legal community, or others). The question I posed in this regard, however, was whether there is a there a sensible public policy argument for why an official, government-produced annotation should be restricted to those who can justify paying for such, vs. made freely available to all.

(And I would note, an argument that the government could not afford to produce such without charging fees for usage/copies strikes me as hollow. Since there are clearly private parties already performing such a function, it would hardly seem that there's a need for the government to do such, redundantly, merely to serve the same market. If the government is going to be in the business of producing such annotations, presumably it should be doing so to serve some purpose not already served by private parties.)

Andy said...

It will be interesting to see if the court accepts the public policy argument. However I can't see it applying on the facts as I understand them, simply because this is a commercial venture and I am assuming that the State of Georgia is not required by law to produce the annotated version.
Of course the matter may be settled without the need for the court to rule on that.

J. S. Greenfield said...

The public policy question is a question separate from the legal question. Generally, courts shouldn't be ruling based on its own assessment of what is or isn't good public policy, and I certainly don't think so in this case.

But isn't it appropriate for _us_ to consider the public policy question? After all, even if it is legal for Georgia to restrict distribution of its official annotated code, shouldn't we be concerned with whether such is good policy?

I'd still like to hear somebody make the case for such representing good public policy, for as I said, the benefit of such a policy escapes me.