US Supreme Court Rules That the Law Cannot Be Copyrighted

The Georgia Malamud copyright case asked whether or not the state can copyright the law. The split ruling that came down said “no”.

Here’s a question: Can the government copyright the law. For most observers and people who have any semblance of common sense, the answer is a clear and obvious “no”. After all, people who must abide by the law must have reasonable access to it in the first place. After all, why do you think the Latin phrase “ignorantia legis neminem excusat” (“ignorance of law excuses no one”) is such a thing in law circles?

So, with that in mind, it really shouldn’t have been a controversial decision when someone decided to start posting the law online for free. That person just so happens to be Carl Malamud who created Part of the project is to post the law online for free for all to read. For some, the endeavour might be rather boring, but controversial is probably about the last thing you would think such an effort might be.

All that changed after the State of Georgia decided to sue Malamud for copyright infringement. At issue is the publication of Georgia state law. Georgia contended that the law in and of itself isn’t the problem, but rather, the annotated version. The annotated version features caselaw and notes about how the law changed over time. The state hired LexusNexus to create it. As a result, they felt that this version is under copyright protection. The inevitable question then becomes this: what version of the law is actively enforced. The simple answer is the annotated version. So, this is where the dispute ultimately originates from.

During the litigation process, in 2019, Georgia effectively labelled Malamud a copyright infringing terrorist for posting the law online for free. This asinine move ultimately inspired the title for 7th episode of the Freezenet official podcast. That title, of course, being “Piracy is Killing the Lawmaking Industry“. The title partially highlights the absurdity of the situation.

While Malamud was winning case after case in court over this dispute, he wanted the US Supreme court to hear the case. This is because other states were gearing up to sue Malamud for copyright infringement as well. The problem here is that Malamud could be breaking no laws, but constant litigation efforts could ultimately bankrupt the effort to educate the public about the law. In December, the US Supreme Court agreed to hear the case. Something like that should ultimately settle the copyright dispute at least in theory.

Now, we are learning that the US Supreme Court has now issued a ruling on the case. In a tight 5-4 decision, the US Supreme Court ruled against the State of Georgia and said that the law cannot be copyrighted. From News 95.7:

The 5-4 ruling splintered the court along unusual lines and upholds a previous appeals court decision.

“The Copyright Act grants potent, decades-long monopoly protection for ‘original works of authorship.’ … The question in this case is whether that protection extends to the annotations contained in Georgia’s official annotated code. We hold that it does not,” wrote Chief Justice John Roberts, who joined with fellow conservative justices Neil Gorsuch and Brett Kavanaugh and two liberal justices, Sonia Sotomayor and Elena Kagan.

Roberts said the question to ask is “whether the author of the work is a judge or a legislator.”

“If so,” he wrote, “then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”

Justice Clarence Thomas, a Georgia native, wrote a dissent in which he said it follows from the court’s precedents “that statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be.”

It’s still quite bizarre to think that this legal question is even close to being controversial, let alone being such a close call by the US Supreme Court. Ultimately, it seems that the court wound up ruling in the way that most people would think: The law is public domain.

One can only hope that this ultimately is the end of this ridiculous affair. Whether or not it well and truly is remains to be seen. Still, at least there is at least one aspect about America that seems to have any semblance of sanity at this stage.

Drew Wilson on Twitter: @icecube85 and Facebook.

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