If you publish Georgia’s state laws, you’ll get sued for copyright infringement — and lose

If you want to read the official laws of the state of Georgia, it will cost you more than $1,000.

Open-records activist Carl Malamud bought a hard copy, and it cost him $1,207.02 after shipping and taxes. A copy on CD was $1,259.41. The “good” news for Georgia residents is that they’ll only have to pay $385.94 to buy a printed set from LexisNexis.

Malamud thinks reading the law shouldn’t cost anything. So a few years back, he scanned a copy of the state of Georgia’s official laws, known as the Official Code of Georgia Annotated, or OCGA. Malamud made USB drives with two copies on them, one scanned copy and another encoded in XML format. On May 30, 2013, Malamud sent the USB drives to the Georgia speaker of the House, David Ralson, and the state’s legislative counsel, as well as other prominent Georgia lawyers and policymakers.

“Access to the law is a fundamental aspect of our system of democracy, an essential element of due process, equal protection, and access to justice,” said Malamud in the enclosed letter. The law, he reminded them, isn’t copyrighted.

The envelopes themselves announced Malamud’s belief in the strength of his argument. “UNIMPEACHABLE!” read the fruit-adorned stickers, surrounded by American flags. “Code is law,” they continued, that phrase being the first words that appear in a well-known book by Harvard Law Prof. Lawrence Lessig.

Georgia lawmakers’ response to Malamud’s gifts was anything but peachy. “Your unlawful copying… Infringes on the exclusive copyright of the state of Georgia,” read the response letter, written by the chairman of Georgia’s Code Revision Commission, Josh McKoon. “Accordingly, you are hereby notified to CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT.”

McKoon told Malamud to stop copying, destroy his files, and remove the laws from his website. If he didn’t comply within 10 days, they would file a lawsuit to force his hand and promised to seek damages for “willful infringement.” There was an unannotated copy of state law available for free on the state’s website, McKoon reminded him, and that would have to suffice. (More on that “free” copy later.)

Malamud has spent years freeing up vast amounts of public documents, like state laws, court decisions, and building codes. If you’ve ever looked at any public company’s SEC filing through the Edgar system, you have Malamud to thank for it.

In Georgia’s view, there were two separate works at issue: the actual text of the laws, which were available to the public, and the annotations, which were copyrighted and owned by the state. The annotated code includes things like judicial decisions related to particular sections. In McKoon’s view, those extra notes are “value-added material,” created by LexisNexis, the state’s chosen publisher, and thus subject to copyright. (Materials made by the US federal government can’t be copyrighted, but states can hold copyrights and state contractors can make copyrighted works.)

To Malamud, though, it was a faulty distinction. The OCGA is the only official copy of Georgia’s laws, so that was the one citizens needed to be able to read.

“Any lawyer would ignore this publication and any of its components at his or her peril,” wrote Malamud in his response. “No matter how you slice that cheese, it all looks the same. The Official Code of Georgia Annotated, every component of it, is the official law… Our publication of the Official Code of Georgia Annotated should be encouraged, not threatened.”

“Profits” from free copies

In July 2015, Georgia’s Code Revision Commission followed through with its threat and sued Public.Resource.Org (PDF) in federal court.

McKoon and other Georgia lawmakers maintain that Malamud’s argument is overblown because the law itself is freely available. But Malamud has pointed out some problems with the free, public copy. First of all, it’s hardly “free,” because anyone who uses it has to agree to onerous restrictions and two separate terms of use. The terms include agreeing not to make copies, and it even prohibits using the code in “newsletters” and “articles.” Malamud has also noted that the LexisNexis-owned website simply doesn’t work that well.

Now, the case has concluded with US District Judge Richard Story having published an opinion (PDF) that sides with the state of Georgia. The judge disagreed with Malamud’s argument that the OCGA can’t be copyrighted and also said Malamud’s copying of the laws is not fair use. “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection,” writes Story. “Defendant admits that annotations in an unofficial code would be copyrightable.”

He went on to acknowledge the Georgia situation is “an unusual case because most official codes are not annotated and most annotated codes are not official.” Despite the fact the OCGA is official law, the judge said its annotations are entitled to copyright. The Georgia General Assembly has made clear “that the OCGA contains both law and commentary,” Story wrote, and the two are distinguishable.

In the fair use analysis, the judge treated Public.Resource.Org harshly. Story made the extraordinary finding that Public.Resource.Org is engaged in “commercial” copying despite being a nonprofit, stating that the organization “profits” by “the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted OCGA annotations, and its use was neither nonprofit nor educational.”

The judge also found that the annotations “are original works entitled to broad copyright protection,” and blasted Public.Resource.Org for having “misappropriated every single word of every annotation using a bulk industrial electronic scanner.”

“Apply for a license to read this law”

“The Official Code of Georgia Annotated is an edict of government and contains the definitive statement of the law as published by the State of Georgia,” said Malamud in an e-mail exchange with Ars. “We are appealing.”

Every bill passed by the Georgia legislature, Malamud points out, describes itself as “An Act to amend the Official Code of Georgia Annotated.”

It’s Malamud’s second setback this year. Last month, Public.Resource.Org was hit with an injunction for publishing technical and scientific standards that have been incorporated into laws.

For now, the Georgia laws have been removed from Public.Resource.Org, and replaced with a notification that “your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.

“To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor… Thank you for your interest in reading the law.”

Source: ArsTechnica