Can You Own The Law? Georgia v. Public.Resource.Org- Ep. 22 [Podcast]

Summery

In this episode of Stuff You Should Know About IP, Thomas Colson and Raymond Guarnieri discuss a copyright infringement case between Public.Resource.Org (“PRO”) and the state of Georgia that was decided by the Supreme Court of the United States. An unofficial, unannotated version of the Code of Georgia is freely available, but citizens must pay to obtain the Official Code of Georgia Annotated (“OCGA”). Georgia’s Code Revision Commission contracted LexisNexis to annotate its state code with information that can make it easier for citizens to understand the law, such as summaries, references to caselaw, or references to relevant articles. Georgia sued PRO for copyright infringement after PRO’s Carl Malamud published the OCGA, the official version that contained annotations from LexisNexis, on the PRO website; Malamud also copied the OCGA onto a thumb drive, and he sent it to several members of the Georgia legislature. Georgia won in the federal district court, but PRO appealed that decision, and the Eleventh Circuit sided with PRO. The case eventually went before the Supreme Court of the United States, which sided with PRO. Under the Government Edicts Doctrine, when legislators or judges are empowered to speak with the force of law, any works they produce in furtherance of their legislative or judicial duties are not copyrightable, because they cannot be authors in the copyright sense. The Supreme Court was divided 5-4, with the majority composed of Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh; meanwhile, Justices Thomas, Alito, Breyer, and Ginsburg dissented. In the Court’s Opinion, Chief Justice Roberts noted the importance of knowing that certain laws that still appear in the Code of Georgia have been declared unconstitutional by courts, and this would only be known from the annotated version.

Transcript

Raymond Guarnieri:

Can anybody own the law? In other words, can the law be copyrighted? And if so, how much does a copy of the law cost? $1,000? How about $1,207.02. We’ve got the venerable, Tim Banker here with us to tell us the story of Carl Malamud and public resource stock, or versus the state of Georgia. This is Stuff You Should Know About IP. Okay. So Tim, Tom, please tell me and our audience, can anybody own the law? And what’s the background of this IP case? Because this one is really fascinating.

Thomas Colson:

Yeah. This is a great case. And by the way, the punchline to this is that it goes all the way to the US Supreme Court. But the question of, “Can anyone own the law?” Is really, “Can anyone own access to the law?” Right? So just to give a quick background before we let the great Tim Banker speak, because Tim really is great. Tom and Ray, our collective IQ is combined maybe 160. So we’re 80 each-

Raymond Guarnieri:

And you’ve got 130 of that.

Thomas Colson:

… whereas Tim alone is 160. So anyway-

Raymond Guarnieri:

I got blisters on my knuckles because I’m dragging them around everywhere I go.

Thomas Colson:

Me too. So anyway, there’s this guy, Carl Malamud who is an activist and he’s in the state of Georgia. And he’s really a great activist because he’s doing all this for the benefit of humanity, right? His mission in life seems to be to make public records actually available to the public. Now you’d think that one of the main things that would be available to the public is the law, right? I mean, we are totally required to follow the law. In fact, there is something that is kind of well known, which is, “ignorance of the law is not an excuse.” So you can’t say,” Oh, I didn’t know I wasn’t allowed to punch that person in the face. Oh, I’m glad you told me. I won’t do that again.” Or “I didn’t know I was not allowed to just take food if I’m hungry from a grocery store without paying for it. Now I know it’s all good.” No, you are prosecuted for violating the law regardless of whether you knew about it. And the state of Georgia is making it difficult for people to read the law.

Thomas Colson:

And basically Carl Malamud’s position is Georgia has this unique situation. The unofficial law is the one that’s published and freely available. The official law is called the OCGA think it’s the Official Code of Georgia Annotated or something like that but Tim will correct us. So anyway, it’s annotated by this great company called LexisNexis and I’ve known LexisNexis and been involved with them since I was in law school, back in the 80s. Yeah, I’m that old, but LexisNexis annotates official laws. So when I was going through law school and as a lawyer, you’d always read the LexisNexis or Westlaw. That’s another company that does that. They annotate laws and make it easier by telling you, “Oh, what happened since the law? What are some relevant cases?” Maybe even summarize it a bit.

Thomas Colson:

But for Georgia, the official version is the annotated version, which means the unofficial version is the unannotated version. Now there is a rule that while you can’t get a copyright on the law, if somebody like Lexis goes to the trouble of annotating it, making it easier, more user-friendly they can get a copyright. Since that’s the official version, the only way you can access the official version is apparently by paying Lexis. So what did you say it was $1,207 or something like that and 2 cents?

Raymond Guarnieri:

Yeah, it was something like that. Right, Tim?

Thomas Colson:

But it was a lot. Do you have $1,207 just in your back pocket to go get the law so that you don’t violate it? Probably not. Most people probably don’t. In fact, I’ll tell you, I read this article recently that said 50% of the American population, 50% could not withstand an unexpected $500 catastrophe. Okay? That means 50% of the people are living just above where they need to be to survive and they don’t have $500 to spend unanticipated. They certainly don’t have $1,207 to spend. So the state of Georgia sues this guy for copyright infringement and they win.

Thomas Colson:

The district court, which is the lowest federal court, the trial court for federal law, and it’s brought in federal court because it’s copyright infringement, which is a federal law. They hold in favor of the state of Georgia and against Carl Malamud and say that the state of Georgia can do this. But then it goes up to the court of appeals and they say the opposite and ultimately to the Supreme Court. But Tim, can you tell us what this case is all about? Because I just don’t even totally understand all the facts here, what happened?

Tim Banker:

Sure. So as you said, the official code of Georgia is annotated, which itself is very unusual. Most annotated codes are unofficial and most official codes are unannotated. So even though-

Thomas Colson:

I like that Tim, most annotated codes are unofficial and most official codes are unannotated.

Tim Banker:

Yes.

Thomas Colson:

That’s like puzzle. I like that.

Raymond Guarnieri:

It’s an ALSAC question.

Thomas Colson:

Yes. That’s an ALSAC question. Yes. So go ahead, Tim.

Tim Banker:

So they have their official code with all the annotations and the annotations are supervised by the Code Revision Commission of the Georgia legislature. Now the Code Revision Commission has I think 15 members, most of whom are Georgia legislators. And this commission oversees the work of LexisNexis, which is the organization that does the annotations. So the annotations have references to case law. They have summaries, they have links or references to law review articles. They’ll mention if a law has been repealed or overturned or declared unconstitutional by a court. So there’s all sorts of non-binding information that doesn’t have the force of law, but it’s really good for people to know. And that’s all over-

Thomas Colson:

So by the way Tim, somebody has to do that, right? LexisNexis has to invest a lot of money to hire people to do all that annotating. Right?

Tim Banker:

Yes, absolutely. And so Lexis has an agreement with the commission and therefore with Georgia, it’s a work for hire agreement. So in the event of, Georgia, the legislature, the state can own any copyrights that are there in the annotated works. So let’s just-

Thomas Colson:

Yeah I think what you’re saying is the state of Georgia hires Lexis to do all this annotating, right? They hire them to pay the people, to do the research, to do all the annotating, to make it easier for regular people like us to understand the law, right?

Tim Banker:

Yes. But the commission-

Thomas Colson:

Kind of work for hire, what do you mean by that Tim?

Tim Banker:

It’s an agreement, they agree that what … Lexis agrees that the work it’s doing is made pursuant to this agreement for the state of Georgia. So it’s basically an agreement that allows Georgia to have the copyright otherwise-

Thomas Colson:

To own the copyright?

Tim Banker:

Yes to own the copyright. Otherwise, Lexis would be the author of it and presumably they would have at least a shot at owning it.

Raymond Guarnieri:

I have a question.

Thomas Colson:

So if it wasn’t for the work for hire agreement, it would be … the state wouldn’t even say they own it because the contractor, the creator is deemed to be the owner, unless there’s a work for hire agreement or some other contract in place, right?

Tim Banker:

Yes.

Thomas Colson:

Okay. Ray what were you going to say?

Raymond Guarnieri:

Well, so … And this is just a fundamental copyright question I guess, but in order to have a copyright, someone has to be the author, there has to be an author because the copyright law is enforceable until 50 years from the death of the author or something like that. Right? So-

Thomas Colson:

It’s actually longer.

Raymond Guarnieri:

So does it have to be a human being? I mean, and-

Thomas Colson:

Are we getting back into the AI discussion?

Raymond Guarnieri:

Because then-

Thomas Colson:

AI again?

Raymond Guarnieri:

Say again? Well now AI is a whole other question. But I mean can LexisNexis be an author? Can the state of Georgia be an author?

Thomas Colson:

But they are not the author there’s authors of it and they assign their rights to their company. For example, you work for executive IP, if you create a work of authorship, you have an obligation to assign it to the company by contract, right? By your employment, then the company owns it, but it starts with the creator, whoever created it. So in this case it was somebody at Lexis annotate stuff and technically they would be the author. Right?

Raymond Guarnieri:

Okay. Yeah. So if that person-

Thomas Colson:

They assign it though to Lexis.

Raymond Guarnieri:

Right, and then Lexis is in this case, assigning it to the state of Georgia.

Thomas Colson:

Well, that’s a work for hire so technically speaking, the state of Georgia is right from the beginning. Right from the jump, right Tim?

Tim Banker:

Yes.

Raymond Guarnieri:

But if that copyright is valid, from the time of whose … whose death are we counting the expiration of the copyright? Is that a valid question?

Thomas Colson:

Yes. It’s on top of the life of the author.

Raymond Guarnieri:

The person who wrote the invitation.

Thomas Colson:

The author. Right.

Raymond Guarnieri:

That’s really interesting.

Thomas Colson:

Getting back to you now Tim, so what happened, the state wins?

Tim Banker:

So yeah, at the district level, the state won. Now the commission really tightly oversees what Lexis did with the annotations. They specify with annotations must include an exacting detail, so they’re really involved in the process. And then the state won at the district court level and Malamud and PRO they appealed and they went to the Eleventh Circuit and the Eleventh circuit sided with PRO.

Thomas Colson:

PRO is Carl Malamud?

Tim Banker:

Yes. That’s his organization.

Thomas Colson:

[inaudible 00:10:27]

Tim Banker:

So, and then just as a kind of an interesting thing, when Malamud … he wanted to make the point when he was … the reason he got sued was not only did he publish the code on his website, he also copied it onto a thumb drive and sent it to several members of the Georgia legislature. That’s distributing the work. So he’s really looking for-

Raymond Guarnieri:

Poking them in the eye.

Tim Banker:

… trouble. Yeah.

Thomas Colson:

But why did he send it to them, just to actually poke them in the eye?

Tim Banker:

I think so. I think he was just distributing the work. He was infringing the copyright.

Thomas Colson:

Yeah. Because you can’t copy or distribute. Right?

Tim Banker:

Right.

Thomas Colson:

Okay. So then what happened?

Tim Banker:

So then after the Eleventh Circuit cited with PRO and Malamud, Georgia said, “Let’s go to the Supreme Court.” Malamud said, “Yes, please. Let’s go to the Supreme Court again.” Both parties wanted to go and the Supreme Court [inaudible 00:11:21]

Thomas Colson:

Oh my God. Malamud must’ve been in his glory going to the US Supreme Court, this is an activist mind you. This is what he lives for and all of a sudden he’s gone to the US Supreme Court just recently, right? Since Kavanaugh’s appointment.

Tim Banker:

Yes. Kavanaugh was on here. And then Georgia accused him of this publication that he did of the Quote Unquote infringement. They said that it was part of a strategy of terrorism.

Thomas Colson:

What?

Tim Banker:

They said it was terrorism. Yes. They used the word terrorism.

Thomas Colson:

Are you kidding? That’s insanity.

Tim Banker:

Isn’t it?

Thomas Colson:

Yes. That’s so interesting though, because-

Raymond Guarnieri:

What was their an argument?

Thomas Colson:

No, these days it’s the buzzword, right? You applied the word terrorism to anything and immediately whoever you called … it’s a word that you can’t fight back from, right? So they wanted to apply the word terrorism to copyright infringement.

Tim Banker:

Yeah. He was telling people what the law is. That’s a terrorist activity in the eyes of Georgia.

Thomas Colson:

I love it. That is brilliant. So he’s a terrorist because he’s trying to help people know the law so they follow the law.

Raymond Guarnieri:

But Tim, what was their argument? I mean …

Thomas Colson:

About being [inaudible 00:12:40]. [crosstalk 00:12:41].

Tim Banker:

I don’t think there’s any statutory basis for saying that’s an act of terrorism. That’s just something that they kind of alleged in it. It didn’t really come up as much in the subsequent decisions because I don’t know, maybe [inaudible 00:12:54]

Thomas Colson:

I don’t think this was contemplated with the Patriot Act. I don’t think that this is what they were thinking about, right? Apparently neither did the US Supreme Court. So by the way, just as a matter of procedure, you start in the district court, that’s the trial court for federal actions and a copyright action is federal. And then when there’s an appeal, the whoever loses ultimately wants to appeal to the court of appeals. And in this case there’s court of appeals spread all over the country. And each court of appeals takes on a particular set of district courts. And in this case it’s the Eleventh Circuit or something, right?

Tim Banker:

Yes. Eleventh Circuit.

Thomas Colson:

So the Eleventh Circuit Court of Appeals rules and … they reverse what happened in the district court. And they hold in favor of Malamud and say that he’s not committing copyright infringing. Why did they say he wasn’t committing copyright infringement?

Tim Banker:

Well, they believe that the people have a right to all this information, that Georgia was not necessarily …

Thomas Colson:

Or was there something about authorship or …

Tim Banker:

Yeah. Authorship comes into it. There’s the part about the annotations being part of the law, because they’re so important to the law. So even though it’s not necessarily exactly the law, they thought it was sufficiently law like to be-

Thomas Colson:

Oh, law like annotations, right?

Tim Banker:

Yeah.

Thomas Colson:

I like that.

Tim Banker:

So that it fell into the … I guess what they call the Government Edicts Doctrine, which holds the officials like legislators and judges, if they’re empowered to speak with the force of law, that their … any works that they produce in furtherance of their legislative or judicial duties are not copyrightable because they cannot be authors of those works in the copyright sense.

Thomas Colson:

Right. And they said those annotations were created by the Code Revision Commission, which indisputably is an arm of the general assembly, the state legislature, right?

Tim Banker:

Correct.

Thomas Colson:

They’re essentially saying that because it’s the official law, the annotations get put into the prohibition against getting copyrights on that.

Tim Banker:

Correct.

Thomas Colson:

Okay. So then what happens Tim? They go up to the Supreme Court, everyone’s all fired up about it. You don’t know what’s going to happen because you got a new judge up there and what happens?

Tim Banker:

It’s a close decision, it’s five to four. It’s possibly be without an extension.

Thomas Colson:

By the way here’s what people don’t always understand about this. The US Supreme Court, say what you will about these people, I don’t like Kavanaugh, Sotomayor. I don’t care who you dislike or like. These are brilliant people, okay? These are people who went to top schools, they’ve dedicated their lives to studying the constitution. These are brilliant people who are faced with this question and they’re five to four. Which is crazy because that means there were four brilliant people who know everything about the constitution who went the other way. I mean, to say that law is not black and white, this is a great example, five to four, that’s stunning.

Tim Banker:

And my favorite thing about it is the particular justices that grouped together, the five and the majority, people talk about justices, kind of going by party lines. If you know what party the president was who nominated them to the bench, you can kind of assume how they’re going to go in their judicial careers. But that’s not how it worked in this case. The majority was Chief Justice Roberts appointed by President George W. Bush, Justices Sotomayor and Kagan appointed by President Obama and Justices Gorsuch and Kavanaugh appointed by President Trump. You wouldn’t think of those-

Thomas Colson:

They came right on one side, they were on the five.

Tim Banker:

Yes. They all agreed with each other. The two Trumpers, the two Obama justices and one from George W. Bush, they all got together and said, “Yes, we agree.”

Thomas Colson:

That is brilliant. I mean, what I love about that is … okay, first of all, remember these are brilliant people and they’re also nobody’s fools, right? We all think we know what they’re going to say, but in reality, they have a lifetime to tenure, right? You can’t fire these people. So they might get put in by Trump or Obama or Bush, but they’re going to vote how they believe that the constitution requires them to vote, regardless of who appointed them, right.

Tim Banker:

Yeah.

Thomas Colson:

I mean, that’s an unlikely grouping.

Tim Banker:

It is. And the dissenters were just as unlikely. Justice Thomas appointed by George H. W. Bush, Justice Alito appointed by George W. Bush and two from President Clinton, Justice Fryer, and the late Justice Ginsburg. They had some different reasoning for their defense, but they were all the dissenters. And you wouldn’t think to put them together necessarily.

Thomas Colson:

That is fantastic. So people always think you’d have the Clinton’s and the Obama judges together, but they’re on opposite sides, I love it. And hey, that’s one of the great things about Intellectual Property law is it’s not issues of gun control or immigration or abortion that are so divisive that you have a side. And sometimes people take their brains out when they have these discussions because they’re so emotional, but Intellectual Property is intellectual, right? I mean, people are using their brains on this regardless of who put them there, or regardless of what they thought about any of these emotional issues before, it just doesn’t matter, right?

Tim Banker:

Exactly.

Thomas Colson:

That is really a cool decision Tim. What I do find stunning though, is that four people on the US Supreme Court, were going to go along with the terrorism angle. I’m sure that’s not what they were thinking. I’m totally sure they weren’t buying that argument, but they were on the side of copyright, basically preventing people from having easy access to the Georgia laws.

Tim Banker:

Yeah. And their reasoning was different. Justice Ginsburg thought that this was not necessarily the legislature acting within its capacity as the legislature, that this was sort of beyond legislative duties because annotations happen after the lawmaking process. It’s not explaining the law, so it’s … they had nuanced reasons, but yes, that is the effect of what they were …

Thomas Colson:

I’m guessing that the big dividing line here was or the thing that just pushed people over was that this is the official version of the law.

Tim Banker:

Yap. The official version.

Thomas Colson:

And the fact that these annotations are integrated with it means that they’re kind of official ish and that’s probably why they got those five votes.

Tim Banker:

Yap. And Justice Roberts in the majority opinion, he made what I thought was a really interesting point, that even though they’re not binding, they’re really practically … there’s a practical importance to knowing this stuff. He points out that there are laws that still appear on this statutory books of Georgia that would be available in the unannotated version that had been declared in constitutional by courts. So they’re unenforceable- [crosstalk 00:20:14]

Thomas Colson:

And you’d never know that unless you read the annotated version.

Tim Banker:

Exactly. He calls them unenforceable relics that the legislature has not bothered to narrow or repeal, but they can’t be in enforced. So-

Thomas Colson:

That’s a great one.

Tim Banker:

There are laws against consensual fornication, sexual intercourse between unmarried persons or certain consensual sodomy laws. In Georgia if you just look at the books, you can’t do that stuff. But if you have the annotated version, you know that you can.

Thomas Colson:

Right. So you’re not going to be able to have sex outside of marriage if you don’t have that annotated version, right?

Tim Banker:

Exactly.

Thomas Colson:

So that’s why we have a lot of frustrated people if all they have is the free version of the unofficial laws. That’s what it came down to. You know what, it made this an interesting fight as well is if Lexis did not have a work for hire agreement in place and they owned the copyrights on the annotations because that’s … I think that could have gone the other way, because in that case, the copyrights are held by the people who made the investment to annotate, which is essentially adding their own copyrighted stuff to this uncopyrightable stuff. And that would have been a harder fight, I think, for Carl Malamud.

Tim Banker:

Yep. Different statutes do say the annotations theoretically are copyrightable if there’s someone who can be an author. The issue here is that the majority thought that there was no author in that copyright sense of the annotations, but it would have been different if it had been Lexis. [inaudible 00:21:51]

Thomas Colson:

That sounds interesting guys.

Raymond Guarnieri:

Yeah. I mean, this is a really fascinating case and to go all the way up to the Supreme Court with split decision, the way that the dice fell, the way that the justices fell on both sides just adds to that fascinating aspect of the case. So Tim, thank you so much for bringing this up. I think this was a really awesome discussion and I hope that the audience agrees and if that’s the case, please share this podcast if you’re on YouTube, hit the subscribe button and the bell icon. And if you’re watching on LinkedIn hit share, hit like and share your thoughts too in the comments section. What do you think? Was this decided correctly? Which side do you fall on? And thanks again for tuning in everyone. Thank you.