US Supreme Court to Hear Case On Whether It’s Legal to Copyright the Law

Is it legal to copyright the law? The US Supreme Court is going to determine this. This after a spat between Georgia and a website that published the law online.

“ignorantia legis neminem excusat”. That is a Latin phrase for “ignorance of law excuses no one”. For lawyers and legal experts, it’s a very familiar phrase. For a substantial period of time, that phrase has held up quite well. Of course, ignorance of the law does depend on access to the law. After all, how are you supposed to know the law if you can’t learn about it in the first place? For the most part, one could easily use whatever resources to obtain access to what is in the law books.

Until recently, the idea of withholding access to the law is just something that doesn’t even enter into the conversation. Now, enter the state of Georgia. Carl Malamud posted a copy of the law online for free. It seems like such a dry civic duty, but that’s what he did. Anyone can access it and learn about such a basic element of society. That’s when the state of Georgia came in and threatened legal action if Malamud didn’t remove that copy of the law from his website. The state claimed that what he did was an act of copyright infringement.

Eventually, legal actions for copyright infringement moved forward. We last checked in with this case back in May when things got ugly. The state went so far as to label Malamud a terrorist for posting the law online for free. While Malamud was winning case after case, it seems the case was headed to the supreme court.

Now, today, we are learning that the US supreme court is going to hear the case on whether government has the right to lock the law away under copyright. On the face of it, this whole concept sounds absurd, but when you dig into the details, it’s still completely absurd.

Essentially, Georgia does publish the law for free. Of course, this version of the law is what was passed as lawmakers decided. This version doesn’t take into consideration of case law and whatever other decisions that came down. That, of course, alters the law in a number of ways as it is enforced. So, Georgia hired a private company known as LexisNexus to create what is known as the “annotated” version of the law. The version of the law, as it is enforced, is, of course, the annotated version. Since Georgia paid the company, they consider the annotated version of the law to be copyrighted. Malamud, of course, published the annotated version of the law and is now being sued for copyright infringement.

Now, it seems that the US Supreme court will hear the case. From Gizmodo:

Copyright law, boring on its face, has posed various unprecedented threats to intellectual freedoms in recent internet history. It threatens to kill our links, kill our news, kill our memes, kill our precious videos of babies dancing to Prince. And yesterday, the Supreme Court considered the momentously stupid question: should you be able to paywall a law?

The answer is no!!!!, but Georgia asked it anyway. This came up in 2015, when the state of Georgia filed a lawsuit against the nonprofit Public Resource (Public.Resource.Org Inc.) for publishing a paid copy of the 54-volume Official Code of Georgia Annotated; until this point, the state has been exclusively distributing the volume for a paid sum through LexisNexis.

“Why would we allow the official law to be hidden behind a paywall?” Justice Neil Gorsuch asked Georgia’s attorney Joshua Johnson at a Supreme Court hearing on Tuesday. Good question!

Georgia seems to have a few justices on its side. Justice Breyer seemed to agree with Georgia’s position that it can separate out the annotations as copyrightable “summaries.”

“I mean, who cares who the author is?” he asked. “If it’s not in their official capacity, if it’s simply a summary or it’s a comment upon something done in an official capacity, it is copyrightable, even though it be done by a sworn public servant, all right? There we are.”

Kavanaugh took a wayward position, arguing that “it would be dangerous” to interpret annotations as law, which is not really the point.

The Supreme Court should resolve this in June. If it rules in Public Resource’s favor, it could choose to either solve the single issue or, ideally, it would make broader rules about government speech and end this.

So, as absurd as it sounds, we are going to find out in a few months whether or not the law can be copyrighted. It sounds like it should have been a slam dunk case for Malamud, but the fact that it’s now going to the supreme court suggests that, disturbingly, that isn’t quite the case. Hopefully, the supreme court will come to the obvious conclusion that the law shouldn’t be paywalled so we can all move on. Of course, in this day and age, you never really know for sure.

Drew Wilson on Twitter: @icecube85 and Facebook.



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