Copyright

by Mike Masnick


Filed Under:
carl malamud, copyright, fair use, georgia, laws

Companies:
lexisnexis



Court Says Posting Georgia's Official Annotated Laws Is Not Fair Use, And Thus Infringing

from the this...-is-a-problem dept

We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement.

The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated."

It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see:

Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable.

Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing.

On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it:

Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea.

The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is.

Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use

The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit.

In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes.

The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even.

The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia:

Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online.

The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention."

Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly.


Reader Comments

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  • icon
    That Anonymous Coward (profile), 27 Mar 2017 @ 12:10pm

    They can't smile, but they have more rights than you.

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

  • icon
    Stephen T. Stone (profile), 27 Mar 2017 @ 12:12pm

    Some people will do anything to make sure citizens remain ignorant of the law.

    Unfortunately for citizens, all those people are in a position to benefit from such ignorance.

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

    • identicon
      Judge Dredd, 27 Mar 2017 @ 12:15pm

      Re:

      Ignorance of the law is no excuse.

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

      • icon
        Stephen T. Stone (profile), 27 Mar 2017 @ 12:17pm

        Re: Re:

        Tell that to Ol’ 45.

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 1:08pm

        Re: Re:

        When it's being deliberately kept out of the public domain in exchange for profit I'd say it very much is.

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

      • icon
        Roger Strong (profile), 27 Mar 2017 @ 1:30pm

        Re: Re:

        In Canada in the '70's there was a popular panel game show called This Is The Law. Panelists - which included at least one lawyer - would be shown a short, often humorous vignette. Then they had to guess what law was broken. Usually they got it wrong.

        Sometimes they were told the first crime up front, and they had to guess the second crime. Which was occasionally inadvertently committed by the arresting officer.

        I see all these "reality TV" shows - usually with no basis in reality - and I wonder how This Is The Law isn't being remade.

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

        • icon
          That One Guy (profile), 27 Mar 2017 @ 2:13pm

          Re: Re: Re:

          I see all these "reality TV" shows - usually with no basis in reality - and I wonder how This Is The Law isn't being remade.

          ... because even people that regularly watch reality tv would find it hard to believe that the examples shown in a show like that were real laws?

          "Hunting Bigfoot is illegal? Come on, couldn't they come up with something at least somewhat believable? What next, a law that prohibits selling dyed baby ducks unless you are selling at least half a dozen of them at a time?"

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 2:01pm

        Re: Re:

        Except apparently when you are a police officer enforcing the law, and then they can make it up as they go.

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

        • icon
          orbitalinsertion (profile), 27 Mar 2017 @ 7:34pm

          Re: Re: Re:

          Exactly. Easily accessible law might lead to someone finally suggesting that maybe police should have some clue about what laws exist, and the actual nature of the existing laws which they claim to enforce. As if there isn't enough reason to begin with (at least in the eyes of reasonable people), readily available legal references would push in that direction, at least in public opinion.

          They wouldn't even have to know it ahead of time, they could just look it the fuck up. And citizens with their dangerous phones could Let Me State Revised Code That For You.

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

    • icon
      ShadowNinja (profile), 27 Mar 2017 @ 12:46pm

      Re:

      Hey, we've gotta keep those private prisons filled somehow!

      We really can't afford to pay another big penalty to the private prisons if their prison occupancy rates drop too low.

      (Yes this is a real thing, google 'Adam ruins everything private prisons' for a pretty good YouTube video on just how messed up it is)

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

  • identicon
    Anonymous Coward, 27 Mar 2017 @ 12:30pm

    The Congress shall have power ...

    To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

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

  • identicon
    Anonymous Coward, 27 Mar 2017 @ 12:42pm

    so... if it's a copyrighted annotation then those texts cannot be laws then? Can they even be enforced?

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

    • identicon
      Anonymous Coward, 27 Mar 2017 @ 12:49pm

      Re:

      It's not that the annotations are the laws themselves. The laws themselves can be obtained and published freely separately. It's that the annotations are an officially recognized interpretation of what those laws mean.

      It's like this. Suppose one of the laws were:

      "Don't do The Thing."
      You can republish that all you want, but you might be left wondering "what is the thing I'm not supposed to do?".

      And then in the annotations they give a definition:

      "The Thing: cutting into our profits"
      And THAT bit is the bit you can't republish yourself for free without paying the gatekeeper.

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 12:58pm

        Re: Re:

        but then the definition of "the thing" is not lawful and cannot be enforced.

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

        • identicon
          Anonymous Coward, 27 Mar 2017 @ 1:26pm

          Re: Re: Re:

          Ignorance of the judicial interpretation of the law is no excuse.

          The legal interpretations can be found for free too in most places. Cutting and pasting to put the legal interpretations in context of the law is a hell of a lot of work. That is also why it is such a terrible case for all involved parties. Only exception being LexisNexis...

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 1:12pm

        Re: Re:

        Which is frankly stupid.

        That's like me writing down "Don't do this." and someone reads the note but doesn't know what the fuck I mean so they do the thing they were told not to do because I couldn't put in context what it meant.

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

    • icon
      OA (profile), 27 Mar 2017 @ 12:56pm

      Re:

      If the annotations are used in an official manner to interpret and use the law then the annotations are reasonably indistinguishable from law. At second look it appears copyright law and public works(?) law are in conflict. However, how often is copyright used improperly?*

      *Answer: often.

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 1:00pm

        Re: Re:

        then the judge should have also recognized that the government can keep its copyright but it can no longer consider these texts as law and enforce them as such, they should call them fiction novels.

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

  • icon
    TechDescartes (profile), 27 Mar 2017 @ 12:57pm

    Market Failure

    Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted.

    This is where fair-use analysis gets sloppy. Yes, they may sell printed copies, but no, they haven't shown that the existence of free versions online hinder the market for printed copies. If that were true, the free version provided by Lexis Nexis already has destroyed that market. Malamud's extra copy doesn't destroy what's already been destroyed.

    People pay for printed copies because they like having a handy reference on their desk that they don't mind going out of date and needing replacing from time to time. People pay for subscription services because they want better searching tools, they want the code to cross-reference to the case law, and other factors. People order CD-ROMs because. Wait. No, they don't.

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

  • icon
    ECA (profile), 27 Mar 2017 @ 1:14pm

    Spanish inquisition??

    This is as funny, as Religion BEFORE WE COULD PUBLISH Massive quantities of Any book.
    The Churches RULED..they TOLD you what the book said, and the Common people could NEVER see the book..
    Every NEW pope, changed the rules..
    Every region of the Church was different..
    Rich Ruled over the poor, with backing from the Church, and allot of money going to the Church.. They EVEN SOLD forgiveness....

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

    • identicon
      Anonymous Coward, 27 Mar 2017 @ 1:41pm

      Re: Spanish inquisition??

      Actually the books words were in latin and most people were illiterate. Nobody except the priest and maybe a few of the rich even could read, much less understand it. It is actually the classic code of older literature: Write everything in codes, so most people keep guessing as to the meaning, while the intended target(s) understand it.

      Today other media have taken over, but once upon a time, the book was a powerful source of knowledge, which also resulted in certain people burning/outlawing certain books...

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

      • identicon
        Anonymous Coward, 27 Mar 2017 @ 2:04pm

        Re: Re: Spanish inquisition??

        The reason that most people were illiterate was the fact that they had no books to read, regardless of the language they were written in, and the rulers wanted to limit education to their own class, and a few selected retainers.

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

  • icon
    SirWired (profile), 27 Mar 2017 @ 2:32pm

    The size of the company in question is irrelevant

    Either the work in question is covered under copyright, or it isn't. Either this use is fair use, or it isn't. It doesn't become less copyrighted, or the use any more fair, simply because Lexis/Nexis is a large company.

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

  • identicon
    Tim, 27 Mar 2017 @ 2:45pm

    Use of google

    always nice to be able to use google to search your laws. At least Florida does this right.

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

  • identicon
    Erik, 27 Mar 2017 @ 3:12pm

    Thank you thesaurus.com

    Authoritative Cipher of the Fourth State of the United States with Comments

    Find and replace Georgia with "State with capital city of Atlanta"

    Transformative enough?

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

  • icon
    Ryunosuke (profile), 27 Mar 2017 @ 5:10pm

    "This article is in violation of copyright infringement because it annotates Georgia's Official Annotated Laws" - The State of Georgia

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

  • identicon
    someoneinnorthms, 27 Mar 2017 @ 6:25pm

    In order to deprive a person of life, liberty, or property, a state government must provide due process according to the Fourteenth Amendment. Due Process has been defined as notice and an opportunity to be heard. In the criminal law context, notice has been defined as actual or constructive knowledge of the law that provides the basis for deprivation of one of those three basic rights. Thus, we have the "ignorance of the law is no excuse" standard. However, it appears Georgia has put itself out of the business of prosecuting crimes (and thus depriving people of life or liberty) because its "official" laws are no longer available for free. One must purchase them. All unofficial versions do not carry the force of law. Thus, unless the state can prove actual knowledge of the law at issue, then it cannot prosecute someone without violating the Constitution. Just as an aside, the US Supreme Court said that indigent people cannot be forced to pay fines, etc. as a condition of a criminal case if they cannot afford it. So, if one cannot afford to buy the code, then one cannot be on notice of the law; thus, one cannot be criminally prosecuted.

    But what do I know? I've only been practicing for 15 years representing criminal defendants.

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

    • icon
      R.H. (profile), 28 Mar 2017 @ 8:43am

      Re:

      The state does provide the unannotated code for free. However, that website is quite difficult to navigate and, being unannotated, doesn't include any references to relevant case law. If pressed, Georgia will probably point to that to avoid the issues you've pointed out.

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

  • identicon
    Tin-Foil-Hat, 27 Mar 2017 @ 6:25pm

    Secret

    A government that maintains secret lists, enacts secret laws, enforced by secret courts and people are sent to secret prisons when they break them.

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

  • identicon
    Anonymous Coward, 27 Mar 2017 @ 6:43pm

    Next up: Patenting and/or trademarking the laws.

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

  • icon
    Dan (profile), 28 Mar 2017 @ 3:41am

    What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot.

    Bullshit. First, the "expensive official annotated code" in the dead-tree version is incredibly cheap--the entire 40-volume hardcover set is about $400, which is dirt cheap for a 40-volume set of hardcover books; you can hardly buy paperbacks for $10 each any more. It's much less expensive than the competing annotated code published by West. Second, as you yourself mention, Lexis operates a website that makes the code available to the public at no cost. Third, if that website is really so unusable, or its terms of use really so objectionable, you can access a copy for free at your local county law library.

    Finally, having access to the annotated code, as opposed to the unannotated code, is not going to turn a layman into a lawyer. Simply reading the annotations is not going to take the sales from his eyes and give him clarity as to the meaning of the text. Certainly the annotations will help, but they're not going to make the difference.

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

  • icon
    D.C. Pathogen (profile), 28 Mar 2017 @ 7:27am

    a system of government that is centralized and dictatorial and requires complete subservience to the state. "a totalitarian regime"

    Story was in private practice in Gainesville, Georgia from 1978 to 1986. He had to pay for the annotations, so should everyone else. It's only fair.

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

  • identicon
    Anonymous Coward, 28 Mar 2017 @ 7:41am

    So how exactly does this "promote the Progress of Science and useful Arts" ?

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

  • icon
    Jeffrey Nonken (profile), 29 Mar 2017 @ 5:27pm

    "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it.

    Because using a bulk industrial electronic scanner is evocative of laziness and mass copying. Had the laws been lovingly hand-copied by monks in a remote mountain monastary using quill pens, their breath clouding and the ink freezing in their inkwells, with each page meticulously decorated with gold leaf -- well then the judge would TOTALLY have declared it fair use.

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


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