Even If The State Of Georgia Can Copyright Legal Annotations, Should It?

from the rethinking dept

Last week, we wrote about the fact that the State of Georgia is suing Carl Malamud for posting PDFs of the Official Code of Georgia Annotated, and sending them around. I've been discussing this with a number of lawyers and other experts over the weekend and have to say that I made a significant error in the original post, which I apologize for. I said that courts frequently rely on the annotations of the law, thus effectively making them a part of the law. This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that's no excuse. I should have checked it out and I did not.

The situation is, admittedly, more complicated. I still believe that the State of Georgia is incorrect both legally and morally in deciding to go down this path, but it is at least slightly more nuanced than the original article suggested, so let's dig in and explore the thinking. The state of Georgia hired LexisNexis to create these annotations, and LexisNexis then assigns the copyright that it receives on those annotations over to the state of Georgia. Part of the deal between Georgia and LexisNexis is that LexisNexis does the work and the state gets the copyright, but then LexisNexis gets to host the "official" copies of the laws of the state, while selling that annotated version (in both digital and paper versions). The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees.

The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright. There is some creative choice in selecting what to cover and how to cover it, though significant parts of it are factual (names of cases and whatnot). As some pointed out, LexisNexis competitor WestLaw also offers its own annotated code of the state and sells it itself, and pretty much everyone is comfortable with the copyright there.

So, what's different here? Well, for one, part of the deal with LexisNexis is that after writing the work, the company transfers the copyright to the state itself. Some have pointed to the fact that under federal copyright law the federal government cannot get copyright on works of its own creation, but that does not really apply here in two separate ways. First, there's some dispute over whether or not those same rules apply to state governments as well -- with many arguing that without it being explicit, states can copyright their own creative works. The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright. And, that's clearly the situation here.

So, yes, it's reasonable to argue that the original annotations should and did receive copyright protection. And it's also reasonable to argue that the state technically still has control over that copyright upon assignment by LexisNexis. From there, however, the legal issues get a bit more cloudy. The state of Georgia still does call the resulting publication the "Official Code of Georgia Annotated." And at the very least, at that point, you have to wonder why any aspect of the "official" laws of Georgia should be covered by copyright. Indeed, as LexisNexis points out on its own site, this "copyright" covered version of the law is "essential" to understanding the law and includes "guidance from the Georgia Code Commission."
The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme
Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia's construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:
Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.
In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an "edict of government," as the US Copyright Office has declared such to be not copyrightable "for reasons of public policy."
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.
Given how the state of Georiga touts the OCGA as being "essential" and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the "Official Code of Georgia Annotated" is an "edict of government" and thus "not copyrightable for reasons of public policy."

Even if the courts somehow disagree with that, it would seem that Malamud also has a reasonably strong argument for fair use (though it's not a slam dunk -- but fair use is almost never a complete slam dunk). The "purpose and character" of the use and "the nature of the copyrighted work" would likely lean strongly towards fair use, and I would argue that while the last two factors may lean against fair use, the overwhelming nature of the first two should outweigh that when looked at as a whole. If you recognize that the purpose and character is to "let Georgians understand their own law," then the fact that Malamud released all of it should be seen as appropriate and reasonable, rather than excessive.

Finally, let's take this a step further and say that even if the copyright is legit and that this somehow isn't fair use... there remains a pretty essential question: is this appropriate for Georgia to act this way? The only "public benefit" argument that Georgia has on its side is that this current arrangement with LexisNexis saves taxpayer money, because the state doesn't need to pay to create annotated state codes. But that assumes that the state needs to pay to create annotated code. It's not clear that it does. WestLaw creates its own, and it seems likely that LexisNexis would continue to create its own as well should the state end this particular arrangement. If it's arguing that those wouldn't be the "official" ones, then there's a point there, but a minor one. First, this actually undermines the state's argument somewhat, in making it clear that it thinks the annotated code is really important in understanding the law. If that's true, then it's totally reasonable to spend taxpayer money on it -- just as they spend taxpayer money in paying the legislators who write the code, because that's exactly what taxpayer money is for.

And then there's this simple point: if the state of Georgia really believes this annotated code is so important, then it has a moral imperative to make it freely and widely available, rather than lock it up with copyright, such that only big law firms have a copy. It is essentially setting up a system by which only the lawyers are allowed to fully understand the law, and that's no way to run a government "for the people." That it has decided to not only lock up this code, but then to attack Carl Malamud by falsely claiming he's looking to "control access" to these annotations and to quote him totally out of context in claiming that he's doing a form of "terrorism," is just sickening. If the State of Georgia believes in having an informed public, this whole lawsuit is ridiculous, both from a legal and moral standpoint.

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  • icon
    mr. sim (profile), 27 Jul 2015 @ 2:09pm

    the first step to tyranny is making laws you can't or have to pay to see.

    reply to this | link to this | view in chronology ]

    • icon
      Josh in CharlotteNC (profile), 28 Jul 2015 @ 5:11am

      Re:

      I'd argue that the first step is making laws that cannot be understood by normal people without law degrees.

      We shouldn't need an annotated code in the first place. The actual laws should be easy enough to understand by themselves.

      reply to this | link to this | view in chronology ]

      • icon
        Dan (profile), 28 Jul 2015 @ 6:21am

        Re: Re:

        The annotations are not, as some seem to think, explanations of the law in lay terminology. They are "legalese", just as much as the statutes themselves, and have nothing to do with the ability of "normal people without law degrees" to understand the law.

        The United States follows the English common law tradition. Under this system, court decisions have precedential effect and are a kind of law (known, simply enough, as "case law"). Case law, in theory, is subordinate to statutory law, in that it interprets or applies statutory law, but can only overturn a statute if the court finds that the statute violates the constitution (recent cases where the Supreme Court has completely ignored the text of a statute in favor of what they thought the outcome should be, notwithstanding). In such a system, it is important to know how courts have interpreted and applied the statutes. That's why publishers pay editors to read through court decisions, identify their application to different statutes, and prepare notes for the relevant statutes. Those are the annotations.

        The alternative would be a civil law system a la France and Spain, and those countries who follow that model. In such a system, only the statutes have binding effect; court decisions apply only to the parties in their particular case. In a civil law system, there is no need for annotations, since court opinions aren't authority. The codes themselves, however, are no more comprehensible to the layman than they are in a common-law system.

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        • identicon
          Phil, 28 Jul 2015 @ 7:10am

          Re: Re: Re:

          Good explanation! Actually the assignment of copyright to the state sounds like a step forward from my recollection (I practice law over 20 years ago before "retiring" into a second career in IT), most annotated statute collections are still under private copyright (owned by either Thompson Reuters as owner of West and Lawyer's Coop, or Reed Elsevier as parent of LexisNexis). Of course as others have explained above the annotations should have no force of law, although we've seen them in fact have that effect (the famous principle that "corporations are people too" originates from a Supreme Court clerk's summary that had nothing to do with the holding of the case). The big issue here is that no state or other government entity should expect its pronouncements to have any force at all if they're not made public. Publishing to 1% of your population (the lawyers) at a price beyond the means of most citizens does not, in my mind, meet that requirement. It's bad enough that the only source of many municipal laws are brief notices printed in the back of local newspapers, or that even things as essential as building codes can only be accessed for exorbitant fees. If there's any one thing that shouldn't be subject to user fees it is a city, state or nation's laws (and the court cases that interpret them). Failing to provide free and easy access to them, especially given the technology available here in the 21st century, should really call into question their legitimacy.

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  • identicon
    Anonymous Coward, 27 Jul 2015 @ 2:18pm

    The Government of the State of Georgia belongs to the people of Georgia. If the Government of the State of Georgia owns the copyrights, then the people own the copyrights. Having a third party write the annotations and then having them transferred to the state government is the equivalent of transferring them to the people of the state.

    Just because the state government came up with a way of paying for the creation of the annotations that is different than using taxpayer money to just pay for their creation is not of concern to the people of the state to whom the transferred copyrights now belong.

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  • icon
    Andrew (profile), 27 Jul 2015 @ 2:24pm

    Simple put, O.C.G.A is considered the law around here, signs reference it etc.

    So even if they could, should they?

    NO, can't copyright the law.

    Simple

    Yours,
    Vice Chair,
    Pirate Party of Georgia

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  • identicon
    David, 27 Jul 2015 @ 2:31pm

    Sounds like a class action lawsuit!

    The People of GA vs The State of GA.

    If you are resident of GA, they can't claim you don't have standing, can they?

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  • icon
    TheResidentSkeptic (profile), 27 Jul 2015 @ 2:49pm

    Ignorance of the law

    Is No Excuse - for a citizen.

    It is a REQUIREMENT for public service. Especially for Elected or Appointed Officials.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jul 2015 @ 2:51pm

    Looks cut and dry. The state government of Georgia is owned by the people of Georgia. Every public good the state owns is also owned by the citizens of the state. This should follow through to any and all copyrighted works that the state owns.

    The state is the people.

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  • identicon
    Anonymous Coward, 27 Jul 2015 @ 3:23pm

    This was wrong and it was poor reporting on my part based on incomplete understanding of the situation. Having discussed this with multiple people and checked into it further myself, I really regret the error and will be adding a link to this story as soon as it is published. I was told otherwise originally, but that's no excuse. I should have checked it out and I did not.

    I appreciate the apology and correction, and I apologize for stating in the comments that you had intentionally lied in the previous post. It's clear to me now that you weren't lying--you were just mistaken.

    That said, I think the problem is that you're not just "reporting" as you now claim to be. You're actually taking sides and drawing legal conclusions. Most reporters don't make conclusions of law. They report the arguments made by one or more sides, but they then don't take sides and draw legal conclusions.

    The problem for you is that you have to rely upon what people tell you, as you don't appear to independently understand the issues. And if you ask someone like Malamud, you're frankly not going to get an accurate picture of the arguments pro and con his position.

    Your posts don't come across as "reporting" because you don't act like a real reporter. You pick sides and you present only partial truths. You are advocating for one side, and you're not reporting on the issues in an evenhanded manner. You do realize this, right?

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 27 Jul 2015 @ 3:54pm

      Re:

      It's appropriate in many cases for reporters to take a side. Throwing out some info and claiming to not be taking sides is one of the modern evils of mainstream media reporting. When the government persecutes whistle blowers, when the MPAA/RIAA flat out bribes AGs to illegally persecute a company, when the government tries to lock up the law for only lawyers, these things DEMAND that good people take a side and stand up for what is right. The COURTS should be blind, not the media.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 27 Jul 2015 @ 7:35pm

      Re:

      Also, Mike doesn't claim to be a reporter, but an opinion writer.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jul 2015 @ 10:39pm

      Re:

      If you're coming here expecting unbiased news, you're going to be very disappointed. But this site is still useful.

      Yes, I am pretty sure they do realize that they often advocate for one side. I'm pretty sure that's intentional.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 28 Jul 2015 @ 7:11am

      Re:

      Your posts don't come across as "reporting" because you don't act like a real reporter. You pick sides and you present only partial truths. You are advocating for one side, and you're not reporting on the issues in an evenhanded manner. You do realize this, right?


      Mike has stated that he doesn't subscribe to the belief that "he said/she said" or "false balancing" reporting is the best way to present a story. It's a little more risky that way and has the possibility to backfire, like this story did somewhat, but it represents "real" reporting where the truth is paramount, as opposed to just everyone getting spout their side of things.

      https://www.techdirt.com/articles/20140820/06291328262/real-reporting-is-about-revealing-trut h-not-granting-equal-weight-to-bogus-arguments.shtml

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  • identicon
    BobWölfé Jung2, K.S.C., 27 Jul 2015 @ 4:03pm

    ...and now for something completely different... Terrorism

    oooops... I guess State of Georgia decided to step it up a notch or 3...

    Georgia claims that publishing its state laws for free online is 'terrorism'
    http://www.latimes.com/business/hiltzik/la-fi-mh-state-of-georgia-copyright-wall-20150727 -column.html

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 27 Jul 2015 @ 4:53pm

      Re: ...and now for something completely different... Terrorism

      Georgia claims that publishing its state laws for free online is 'terrorism'


      Yeah, we covered that in the original post. They didn't quite say that, but they took a Malamud quote out of context to claim he said that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jul 2015 @ 4:24pm

    The second issue, though, is that even under federal copyright law, if a third party/contractor creates the work and then assigns the copyright to the government, then even the federal government can keep and use that copyright.

    Wait, isn't everything the federal government creates created by someone the government paid to do so?

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 27 Jul 2015 @ 4:52pm

      Re:

      Wait, isn't everything the federal government creates created by someone the government paid to do so?


      No. That only applies to third parties or contractors. Not government employees. Anything created by government *employees* is not subject to copyright.

      That's the difference.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymouse, 27 Jul 2015 @ 9:32pm

        Re: Re:

        Technically, the work has to not be a work-for-hire by the federal government for it to not be copyrighted. This was actually seen in the case of Obama's official photographer where the copyright was ruled to be a work-for-hire by the federal government and thus a product of the federal government and as such, it is not copyrightable.

        Now, if a company produces something tangentially related to a government project while a contractor but they were not specifically instructed to create for the federal government, then you start getting into a gray area for whether or not the work is under copyright.

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        • identicon
          Anonymous Coward, 28 Jul 2015 @ 3:27am

          Re: Re: Re:

          Technically, the work has to not be a work-for-hire by the federal government for it to not be copyrighted.

          That's what I thought too. Mike seems to disagree.

          reply to this | link to this | view in chronology ]

  • identicon
    S.T. Rawman, 27 Jul 2015 @ 4:31pm

    "The state argues that this arrangement is actually more beneficial to consumers, because rather than relying on taxpayer funds to do this, LexisNexis gets to recoup the costs in the form of customer fees."

    "because rather than relying on taxpayer funds to do this"
    "LexisNexis gets to recoup the costs in the form of customer fees" Aren't the "customers" also taxpayers? I can see redirecting costs to those actually using the service, but by that logic PPL without children shouldn't pay school tax.
    I guess "The state" has never heard of The Internet and its ability to transmit documents for pennies.

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  • icon
    SimonN (profile), 27 Jul 2015 @ 5:19pm

    Audit / Vetting

    As a UK citizen I have a somewhat confused understanding of this; who makes the laws of Georgia?
    If the "Annotated" code is de facto de juris then it would appear that the state of Georgia (deliberate lower case) has given the law making ability to LexisNexis which would seem somewhat problematical.

    Howsoever should the state retain control then LN is merely a transcriber of statements made in court, in which case there would seem to be no copyright as no creative statement has been made - and indeed were it to have been then the firm would be abrogating the right of the state to make laws.

    So if there is a criminal art ( sorry creative art) then it should have no legal standing - and if there is not then there is no justification to the claim of copyright.

    Which leads me at least back, if not any one else to the question of who authori(z)ses or vets these documents - to sort of make a kind of legal point:

    Quis Custodiet Ipso Custodes

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  • icon
    CarlMalamud (profile), 27 Jul 2015 @ 5:55pm

    legal opinions

    Hi -

    There has been a lot of discussion on this thread and the previous post. Thanks to Mike for doing this, but I did want to speak up since I haven't had a chance.

    Georgia decided to file suit instead of talking to us despite repeated requests to come see them and talk about this. Nobody on this post or the comments to it has talked to us either. So, it is gratifying to see so many people taking the issue seriously even with only some of the facts on the table.

    These are complicated issues, and I'd encourage people to read some of the background materials. Here are a few things that people might find useful:

    1. I testified before Congress on Edicts of Government, and discussed Georgia in that testimony:

    https://public.resource.org/edicts/

    (You'll note two members from Georgia had pointed questions for me. They are in the description on the full hearing on the Internet Archive.)

    2. Here is the paper trail with Georgia before they filed suit:

    https://law.resource.org/pub/us/code/ga/

    3. Here are the court documents and their exhibits. Keep in mind this is their initial filing and we haven't had a chance to respond:

    http://www.archive.org/download/gov.uscourts.gand.218354/gov.uscourts.gand.218354.docket.htm l

    4. We have a similar situation in several other states, including Oregon, Idaho, and Mississippi. You might want to look at those paper trails:

    https://law.resource.org/pub/us/code/ms/
    https://law.resource.org/pub/us/code/id/
    https://publi c.resource.org/oregon.gov/

    (If you're interested in annotations and work for hire, I'd recommend the Public Records Act request from Idaho. It's the big file.)

    5. Since folks are busy, instead of talking to me, you can just listen into my answers from an interview with the NPR station in Atlanta:

    https://public.resource.org/WABE.Carl_Malamud.20150727.m4a

    Thanks again for your interest in the Georgia Code!

    Carl

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  • identicon
    Ernie Gordon, 27 Jul 2015 @ 6:46pm

    Annotations

    All serious legal research involves reading annotated codes rather than unannotated, and no brief gets filed without checking citations to ensure cases haven't been overturned.

    Most people don't realize that federal, state, appellate and supreme court cases from 1950, and US Supreme Court cases from 1791 to within about 90 days of the search can be read using Google Scholar. However, what separates Westlaw and LexisNexis from Google Scholar, and why most attorneys subscribe to one of them, is annotated codes and citation checkers (KeyCite or Shepard's).

    As each case gets published, editors read them and write summaries to attach to the codes if that statute is referenced creating new law, or to note in a citator if a case disapproves or overrules a prior case. Someone has to pay for this work, and as described, LexisNexis is doing it for Georgia. Because attorneys can't get this service anyplace else, they continue to pay for it and both features keep the money flowing - Westlaw is hugely profitable.

    Given the above, this fight won't be fought by Georgia alone, but Westlaw and LexisNexis depend on the annotations and citators for their very existence.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Jul 2015 @ 5:08am

      Re: Annotations

      IDK about in the US, but in Australia there is a very strict de facto standard for legal citations (there used to be others, but only one is in use), which should be able to be parsed by a fairly trivial script. That wouldn't give you which linked cases overturn which (although the summaries of the cases included in the reports might), but it would reduce the work substantially.

      The main obstacle to that would be sloppy or missing references (especially to well-known or obviously relevant legislation).

      reply to this | link to this | view in chronology ]

  • identicon
    teka, 27 Jul 2015 @ 7:15pm

    I understand the technical argument that the state owns the copyright and functionally licensed it back to LN. Fine, a complex legal arrangement.

    But I can't accept that the public can't access it freely. If the laws application is based on previous case history as much or as more than the law-as-written it follows that the annotated history must be available to anyone who has to deal with the law (everyone living in, working in or at any time moving through Georgia)

    It might be a legally defensible argument but it is not morally justified for a supposedly democratic republic.

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  • identicon
    eddie, 27 Jul 2015 @ 7:50pm

    >The annotations include things such as the names and a brief paragraph summary of relevant caselaw concerning the specific law being annotated. So, the first question is can this be covered by copyright? Most likely the answer is yes, if a limited kind of copyright.

    There's nothing limited about the copyright that would cover a brief summary. It's as copyrightable as your own article is.

    >Given how the state of Georiga touts the OCGA as being "essential"

    No, it doesn't. Lexis does, as you pointed out a mere three paragraphs earlier. And Lexis saying that their product is "essential" doesn't actually make it so. It's marketing hype. I'm sure West says the same thing about theirs.

    >Furthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version.

    They don't "refer to the OCGA as the law of Georgia" in the sense of declaring that the OCGA is is the law of Georgia (and even if they did, those declarations would carry no weight, as only the legislature can make such a declaration, and the legislature has not done so).

    What they do is cite the OCGA in order to refer to specific portions of the law of Georgia. But in doing so, they are citing the law and not the annotations. Anyone is free to extract the statutory text from the OCGA, compile it, and redistribute it with the citation numbers intact. That would allow anyone to who has a citation to the OCGA to be able to look up the text of the cited law directly without needing access to the OCGA itself.

    This is exactly what Malamud should be doing, and if that's what he was doing there would be no controversy or lawsuit.

    reply to this | link to this | view in chronology ]

    • identicon
      teka, 27 Jul 2015 @ 10:34pm

      Re:

      I'm sure I am simply slow or something but please tell us why the state would cite the OCGA instead of directly citing the state code.

      Why would an agency cite a state contractor's "creative" work, that was licensed to the state and then exclusively re-licensed back to the contractor to profit from, unless the added documentation was an important part in the way the law was handled/adjudicated/administered?

      reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 27 Jul 2015 @ 11:52pm

      Re:

      It seems to me as a non US citizen that the relationship that the US State's have with Lexis is a little bit too cosy and that by Georgia stating on all their official correspondence that people must refer to the OCGA and not the actual legislation itself that exclusive dealing is occurring.

      Georgia cannot have it both ways, either they allow EVERYONE free access to the OCGA or they stop stating that it is the 'official' (no matter what the legislature says) source.

      In Australia for example what Georgia is doing is absolutely prohibited and called 'third line forcing'. In other words Georgia is forcing someone to acquire goods/services ONLY from Lexis or not at all. Criminal behaviour in Aust actually.

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  • icon
    Kevin Picott (profile), 28 Jul 2015 @ 5:50am

    Meta-comment on the posting itself

    Intellectual honesty ... on the internet? Mind totally blown.

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  • icon
    Dan (profile), 28 Jul 2015 @ 7:48am

    Correction

    I appreciate the significant correction to the previous article, and hope the EFF picks up on it (and unlike you, they don't have any excuse for the misleading headline). I'd still disagree with this part:

    First, there's some dispute over whether or not those same rules apply to state governments as well -- with many arguing that without it being explicit, states can copyright their own creative works.

    There is, in fact, no legitimate dispute on this point. As far as federal copyright law is concerned, there is no question that states can copyright their own creative works. An individual state may restrict its own ability to do so, or the ability of its counties/cities/etc. to do so (which is one of the issues in the City of Inglewood case you wrote about a few weeks ago), but there is no question as a matter of federal law.

    But with respect to the annotations, the situation is unusual. In most states, the state prepares and prints the code. It will contain the full text of the statutes, and may have history (i.e., the dates and act numbers of the original law and any amendments that affected each code section), but won't have case notes or other research aids. This compilation is the law, and is consequently not copyrightable. Then, private publishers (Lexis and/or West, typically) prepare annotated versions of the code. The text of the code will be identical to the "official" version, but their editors will have prepared annotations for each code section, explaining how courts and other authorities (administrative agencies, and sometimes secondary materials like law reviews) have interpreted and/or applied the code section. Those annotations are original, if brief, works of authorship, and are unquestionably protected by copyright. There's no serious question, for example, that West's California Codes, Annotated, are copyrightable material.

    So, in most states, you have the "official", un-annotated code, which is the law and only the law, and is consequently not protected by copyright; and you also have one or more "unofficial" annotated codes, which contain significant original material from private sources, and are copyrighted.

    Georgia is unique in having contracted with a publisher to prepare an "official" annotated code. So far as I know, no other state has done this. That still doesn't make the annotations the law (otherwise you'd be giving private editors, potentially without any oversight whatsoever, the ability to make the law), and the annotations aren't really citable in any way, so their status as "official" is pretty illusory. I'm sure it gives some marketing clout to this version over West's, but beyond that I don't know that it has any effect.

    One result of that fact, though, is that the OCGA is the "official" source of the code, and that's what you cite when you're citing the code. You'll note, though, that what's being cited is always the statutory part--that is, the text of the law itself, which is in the public domain (and which the state makes available for free at the LexisNexis link you gave in the previous post). The code itself even makes this clear, in section 1-1-1:

    The statutory portion of the codification of Georgia laws prepared by the Georgia Code Revision Commission and the Michie Company pursuant to a contract entered into on June 19, 1978, is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia.

    (emphasis added)

    The code is clear that only the statutory portion of that publication is the law. The remainder is useful, relevant information, but it is not the law.

    I disagree with your analysis on fair use--I'd say only one of the four factors, at most, is in Malamud's favor. The factors:

    1. Purpose and character of use. Though I'll readily grant that Malamud is using, or intending to use, the copyrighted material in the public interest, the question here is whether any transformation has taken place, or whether you've simply copied the work wholesale. Malamud is doing the latter.

    2. Nature of the work. The annotations are generally factual (i.e., they're summaries of how a court decision has interpreted or applied a code section), and they are published, which is in Malamud's favor. They're not simple recitations of facts, though, as something like a phone book would be. I think this one balances in his favor, but not particularly strongly.

    3. Amount and Substantiality of the portion taken. Malamud's taking and reprinting the entirety of an 48-volume hardbound set of books. Of course, part of that material is in the public domain. In my experience, annotations typically exceed the statutes themselves in length by at least 2:1, but I'll be generous and assume that they're about equal in length. That means he's reprinting 24 volumes' worth of copyrighted material without permission. I don't think I need to elaborate further on why this factor favors the state.

    4. Effect on the potential market. The OCGA, in print, is really a bargain at $378 if I'm reading that page correctly (Under $400 for a 48-volume set of law books is dirt cheap--which is why I question whether I'm reading the page correctly). West's annotated GA code is 80 volumes and $1753. But even so, who will buy it if they can get it online for free? Some will, no doubt, but it's hard to deny that Malamud's publication will have a significant effect on the market (particularly if he keeps it up to date).

    So no, I don't think fair use will win the day. The argument that the state's decision to incorporate all this material into the "official" code renders it non-copyrightable is an interesting one, and it may be a bit stronger.

    reply to this | link to this | view in chronology ]


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