Annotations, Edicts and Codes – Georgia v. public.resource.org

The devil went down to Georgia looking for a code to steal…or so the State of Georgia would have you believe. The “devil” in this case being Carl Malamud, free law advocate and founder/owner of public.resource.org, a distributor of legal and government information and data.  The headlines (and tweets) are predictably hyperbolic, saying that Georgia is trying to copyright its law.  That’s not entirely what is happening here.  A couple things:

1) Law (codes, cases, etc) and other Edicts of Government cannot be copyrighted.

2) Georgia is not claiming copyright in its code. (see linked complaint above).

3) States can claim copyright in their works that are non “edict of government” or public record works.

4) Georgia (via Lexis) publishes annotations of/to its code in the same publication as the code itself.  These annotations include judicial summaries and research references to other edicts of government.  Lexis (part of the Elsevier family of publishing) creates the annotations as a “work for hire.”

5) Georgia is claiming copyright in the annotations to the code. It says that without “the publisher” (meaning Lexis or the state?) being able to recoup money via the sale of these codes, Georgia would have to use state tax money to develop these annotations.  Or stop publishing annotations all together.

EDIT.  6) Which would be a shame because annotations (and other secondary sources) are extremely useful for non-professional legal researchers.  But here’s the thing… annotations are secondary sources.  Not primary law.  And since they’re not primary law, people don’t have a “right” to access them.

So what’s going to happen here? Unfortunately, I think Georgia probably is going to win.  Which…sucks, frankly, but that’s the law for you.  I really hope I am wrong.  But even if Georgia wins this case that doesn’t mean that the law is copyrighted – just that the annotations are.   Perhaps an official,  non-annotated version of the code will be made available after this, a version that can be more freely distributed by non-commercial entities.  That would be the best scenario to come out of this, as it seems to me that monopoly on law that Georgia gives to Lexis seems patently unfair, if not illegal.

Photo Credit: Mike Boening Photography via Compfight cc

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  6 comments for “Annotations, Edicts and Codes – Georgia v. public.resource.org

  1. July 25, 2015 at 11:27 am

    Sarah,
    I think your analysis is spot on. The annotations that are the subject of the suit are not part of the Georgia Code, but secondary material added by the publisher and they can be protected by copyright. Since no copyright claim is made to anything that is freely availabe through the Lexis/Nexis web version of the code, seeing the annotations as subject to copyright is reasonable.
    The real problem here is not the copyright claim over the annotations but the facts that the only publically available version of the Georgia Code is locked inside of a vendor silo that requires one to accept a lengthy terms of serivice and that the only official, citable version of the code is the print. These 2 facts combine to put the average citizen of Georgia at a disadvantage and the efect is to make the official law of Georgia inaccessible.

  2. July 25, 2015 at 12:02 pm

    Here’s something intersting: the XML files that are available on Carl’s website do not contain the annotations. The text in the XML files matches closely the text on the LN site that the state claims no copyright in. The PDF scans, which are used as exhibits, do contain the annotations. The digitized versions of the PDFs that are on the Internet Archive are derived by OCR of the PDF files so those text and EPUB versions contain the annotations. It seems to me that the XML files that are available are not part of this because htey contain the disputed annotations.

  3. July 25, 2015 at 2:46 pm

    Is there any evidence that Malamud seeks to publish the annotations; I’m guessing not. Time for Georgia to adopt UELMA and act like the grown-up state that it should be, as one of the original thirteen.

  4. Sarah
    July 26, 2015 at 6:55 pm

    It appears that he believes the annotations are included and fair game. https://twitter.com/carlmalamud/status/625108459437092864

  5. Kenneth Michaels
    August 10, 2015 at 4:05 pm

    There are good arguments as to why the Annotations (not just the code) should not be copyrightable. First, the “Official Code of Georgia Annotated” is apparently the *only* version of the code that is recognized by the State as *official* and *authoritative*. Second, the Annotations themselves are described as “essential” and “guidance” (an edict?) from the Georgia Code Commission. (If an edict of the State, not copyrightable.) Third, the terms of use restrict the copying of all other versions of the code provided by the State (i.e., you can’t make a copy of the code under the contract for accessing the code, which is not official or authoritative in any case).

    These and other arguments are outlined in the letters on this page:
    https://law.resource.org/pub/us/code/ga/

    Apparently the only way for someone to get an official, authoritative copy of the law is to buy the allegedly copyrighted annotations, which are “essential guidance” promulgated by the State to understand the law? In my opinion, any copyright in the Annotations have been waived by the State.

    Thoughts?

  6. Kenneth Michaels
    August 10, 2015 at 5:12 pm

    Sarah, I think you have it right in the last sentence: “That would be the best scenario to come out of this, as it seems to me that monopoly on law that Georgia gives to Lexis seems patently unfair, if not illegal.” If Lexis had the copyright, that would be one thing. But because the State retains the copyright in the annotations, the resulting unfairness can’t stand. It’s a sneaky trick – tying the only official, authoritative copy of the law to a different copyrighted work – and public policy should dictate that any copyright to the annotations is therefore waived. Copyright can’t stand in the way of access to the law, no matter the trickiness.

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