Welcome
Daily Labor Report®

High Court Copyright Clash Raises Law Access, Democracy Issues

Nov. 26, 2019, 9:50 AM

A copyright dispute over Georgia’s annotated legal code could have broad consequences for access to legal materials nationwide, lawyers and interest groups warn ahead of a Dec. 2 U.S. Supreme Court argument.

The justices, after granting the state’s appeal, will for the first time in over 100 years weigh the limits of the “government edicts doctrine.” It bars copyrights in statutes and judicial decisions.

However they rule will impact how people access legal materials, both sides in the case and the groups backing them said.

Small law firm practitioners are especially concerned about the access question, warning that “when states are permitted to copyright these materials, they can and do create financial and physical barriers to access.”

No Force of Law

Georgia’s annotated code is published by private company LexisNexis Group, but the state claims the copyright and sued a nonprofit group for infringement.

There would be nothing to argue about if it was just the statutes at stake, because the government edicts doctrine would bar the copyright.

But the annotations, which include things like commentaries, case notations, and editor’s notes, don’t have the force of law.

That makes the copyright question a close one, the U.S. Court of Appeals for the Eleventh Circuit said in ruling against the state.

Carl Malamud, president of the nonprofit fighting to publish the code, Public.Resource.Org, doesn’t seem to think so.

“Lawyers wishing to consult the only official code of Georgia are forced to use the services of Lexis Nexis, the only official provider,” Malamud said.

The dispute also raises profound democratic issues, he said.

“If a democracy is based on an informed citizenry and ignorance of the law is no excuse, how can we possibly justify requiring citizens to obtain a license and pay a tax before they read the law and repeat it to their fellow citizens?” he asked. Public Resource is backed by an array of groups, including small-firm practitioners.

‘Longstanding Arrangements’

Georgia paints a different picture.

The state says in its brief that the Eleventh Circuit’s decision threatens to upend longstanding arrangements of Georgia and other states that rely on copyright’s economic incentives to keep costs down while making materials widely available.

Georgia is backed by a group of states pressing for copyright protections along with Matthew Bender & Co., Inc.—the LexisNexis publisher—and others.

The company declined comment. The state didn’t return a request for comment.

The case is Georgia, et al. v. Public.Resource.Org, Inc., U.S., 18-1150, to be argued 12/2/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com