Both Sides Want The Supreme Court To Review Decision Denying Copyright In Georgia's Law. How About You?

from the public-resource dept

Last year the Eleventh Circuit held that the Georgia statutory code, including annotations, was not protected by copyright. It was an important decision, not just for Carl Malamud's PublicResource.org, which had been sued for publishing Georgia's operative statutory law, including the annotations, but for any member of the public who necessarily needs to be able to freely access the law that governs them.

Georgia has now petitioned the US Supreme Court to review the Eleventh Circuit's decision. But more significantly, Public Resource is also planning to file a brief encouraging that review. Not because Public Resource wants the decision reversed, of course. But because it wants the decision to be affirmed.

Here's the situation. If the Supreme Court declines to review the decision, it will stand. That's a good thing, because it means there would be no risk of infringing copyright in publishing the Georgia state code. Given the decision's reasoning, it would also be difficult for any other state within the Eleventh Circuit to assert copyright in its statutory code either. But for any other state outside the Eleventh Circuit the question of whether statutory law could be copyrighted would remain unsettled. The Eleventh Circuit's decision is persuasive authority that courts elsewhere may defer to, but it's not binding authority, so they don't have to. What the Eleventh Circuit got right they could still get wrong.

Also, even if other courts were to ultimately follow in the Eleventh Circuit's footsteps, it is arduous and expensive to have to litigate in each state and circuit in order to get to that point. Meanwhile plenty of publicly-beneficial uses will remain chilled by the fear of potential litigation and liability as we wait for all these courts to eventually rule that this public access, unrestrained by copyright, is OK.

It would be much more efficient if the Supreme Court could just cut to the chase now and affirm that the Eleventh Circuit's holding is the law of the land. The case is ready and ripe for review, with especially cogent reasoning, so taking up this one would be much more expedient than having to wait for any other case to finally reach the petition stage. After all, the public's need to access the law that governs it is just as critical now as it will be later.

An amicus brief is being put together on behalf of law students, legal educators, and lawyers who are solo practitioners or in small firms to remind the court of this fact. All of these constituencies need access to the law, and not just superficial access, but meaningful access that will allow for the analysis necessary to teach, learn, and practice the law as clients, current and future, need. Yet neither are economically in the position to be able to easily afford the subscription fees they have to pay the commercial databases which are able to monopolize access to the law when states can get away with demanding paid licenses for it. Small law firms and solo practitioners are at a distinct disadvantage to large firms who, with generally wealthier clients, are better able to absorb these costs. And all are at a disadvantage to their peers in Georgia, who no longer need to pay to get access to what the Eleventh Circuit recognized was "intrinsically public domain material, belonging to the People."

If you are a solo or small firm lawyer, or are a law student, and would like to sign on as an amicus to encourage this Supreme Court review, click through the link above to the brief, where there is a form through which you may add your name before midnight on May 2.

Disclosure: I've contributed to the drafting of this brief.

Filed Under: code, copyright, georgia, law, supreme court


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Apr 2019 @ 2:44pm

    "Circuit Law" is never a good thing. It took over two centuries for the Court to finally resolve the Second Amendment language. Section 230 has been unresolved for two decades now.

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

  • icon
    UniKyrn (profile), 30 Apr 2019 @ 3:47pm

    I want to build X. If there is no way for me to freely access the laws and restrictions involved, I can't be prosecuted for violating them? As I recall, a fair number of the complaints were made by building/wiring code writers, who wanted to double dip. Make money by writing the addendum's to the law, make money off the inspectors who have to pay to know the law and make money off the public to even have a guess at what the law is if they did the work themselves.

    You violated code X, addendum Y, part 59.

    Show me the public accessible website that documents that.

    No, you have to pay to know that.

    Judge: Case Dismissed bang

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

  • identicon
    Blitherakt, 30 Apr 2019 @ 3:49pm

    Only Lawyers Need Apply?

    I'm curious why this brief excludes the rest of us who do not, or do not plan to, practice law? Surely I'm not the only non-lawyer who references parts of the criminal and civil code when trying to determine if the garage I'm planning to build needs to be ten feet or twelve feet from the property boundary; or if playing my music on speakers while I'm swimming on a Sunday afternoon is going to result in a ticket; or if when it is actually legal to park on the street in front of my house absent any posted parking signs?

    The law isn't just for lawyers and judges: every person is forced to obey it. Being bound by rules I cannot discover without paying a tithe to the judges is diametrically opposed to everything the law is supposed to stand for. If ignorance of the law is not a valid defense, surely not paying the subscription fee for it should be.

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

    • icon
      TKnarr (profile), 30 Apr 2019 @ 4:06pm

      Re: Only Lawyers Need Apply?

      You can file your own brief, but this one's limited in scope to a group that differs from you in one respect: their job literally is to know what the law says. How can an attorney tell his client what's legal and what's not if that attorney isn't permitted to know what the law says? And it's really going to be hard for any judge to say that "attorney" isn't a job that we can just do away with.

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

      • icon
        Mason Wheeler (profile), 1 May 2019 @ 7:52am

        Re: Re: Only Lawyers Need Apply?

        And it's really going to be hard for any judge to say that "attorney" isn't a job that we can just do away with.

        ...as much as we may wish it were so. :P

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

  • icon
    K`Tetch (profile), 30 Apr 2019 @ 4:04pm

    What about those of us that are, for instance, journalists? Can we sign on?

    I've done a fair bit of reporting and investigating that's needed the access to the OCGA, and not just CGA.

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

  • icon
    Cathy Gellis (profile), 30 Apr 2019 @ 4:09pm

    Why just legal practitioners

    Lots of people of course need access to the law, but this brief is written with the specific needs of legal practitioners in mind. That's why signing on is limited to them.

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

  • identicon
    Anonymous Coward, 30 Apr 2019 @ 4:13pm

    It seems like one of the things they'd have a harder time getting atrociously wrong.

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

  • icon
    Mike Gale (profile), 1 May 2019 @ 2:19pm

    Is secret law any law at all?

    I would have thought that unknowable law is no law at all. Which presents a fairly simple defence in court and the basis of mass civic "do what you want".

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


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