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Don’t ‘Blow Up’ State Copyright Schemes, Lawyer Tells SCOTUS (1)

Dec. 2, 2019, 6:17 PMUpdated: Dec. 2, 2019, 8:37 PM

“Why would we allow the official law to be hidden behind a pay wall?”

Justice Neil Gorsuch posed the question to Georgia’s lawyer at U.S. Supreme Court arguments on Dec. 2, in a dispute over the state’s ability to copyright its annotated legal code.

The case has broad consequences for access to and cost of legal materials, both sides argue. An array of interest groups have also weighed in, ranging from small-firm lawyers looking to maintain access to a coalition of states looking to uphold existing business arrangements.

How the justices sort out whether to, as the state’s lawyer Joshua Johnson put it, “blow up” not only Georgia’s copyright regime but similar ones in about a third of the states, remains to be seen. A decision is expected by late June.

The copyright clash stems from Georgia’s suit against Public.Resource.Org, a group that advocates for public access.

The state’s annotated legal code is published by private company LexisNexis Group, pursuant to an agreement with the state that gives the company exclusive publication rights. But Georgia claims the copyright and sued Public Resource for infringement when the non-profit tried to publish the code on its own.

There would be nothing to argue about if it were only the statutes at stake, because the government edicts doctrine would bar the state’s claim.

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

Some of the justices clamped down on that force-of-law point during the argument, pushing back against Public Resource’s lawyer Eric Citron of Goldstein & Russell, P.C. in Bethesda, Md.

Justice Ruth Bader Ginsburg asked him why it shouldn’t matter “that these annotations are in no sense the law, they’re just useful information on how the law has been interpreted and applied by others?”

Citron stressed that the annotated legal code as a whole “bears the State’s imprimatur.” When the state “is telling you this is a good summary of the statute—of—of the case, you’re going to treat that differently,” he said. “And it’s not for nothing.”

The U.S. Court of Appeals for the Eleventh Circuit ruled against the state in a decision that Johnson, of Vinson & Elkins LLP in Washington, said would wreak havoc on the status quo if upheld.

Affirming the Eleventh Circuit “would be very disruptive for states,” he said, noting that about a third of them also claim copyright in annotations to codes put out by commercial publishers. “So affirming the decision below would blow up those regimes.” The U.S. solicitor general’s office supported the state at the argument.

Justice Brett Kavanaugh likewise pointed to the consequences of upending existing arrangements, highlighting what he called the states’ "very strong argument” that “this is going to create problems in terms of incentives for creating these annotations in the first place.”

The case is Georgia v. Public.Resource.Org, Inc., U.S., 18-1150, oral argument 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