October 16, 2019 5:19PM

You Can’t Copyright the Law

Georgia gives the legal resource database Lexis an exclusive copyright to publish the Official Code of Georgia Annotated (OCGA), thus restricting its citizens’ ability to access and understand the laws that bind them. Pub​lic​.Resource​.org (PRO) is a nonprofit dedicated to improving the public’s access to government records and primary legal materials. PRO purchased all 186 printed volumes of the OCGA, scanned them, and uploaded them to their website to be freely accessed. The Georgia Code Revision Commission sent letters to PRO demanding that they take the OCGA down, but PRO refused, prompting a lawsuit.

PRO argued that the general rule that government codes and judicial opinions can’t be copyrighted should also apply to annotated codes. They won in the Eleventh Circuit, but Georgia appealed to the Supreme Court and the Court agreed to hear the case. Cato, joined by the Center for Democracy and Technology, has filed a brief in support of Pub​lic​.Resource​.org. We argue that the logic behind copyright does not apply to codes of law that bind the public, even if the code has annotations.

An exclusive copyright over the product of normal legislative deliberation is a violation of the public’s trust. The people fund the government, including legislators’ salaries, in exchange for the enactment of laws designed to ensure public safety and order. Lawmakers certainly do not need copyright protection to incentivize creating laws. Georgia argues that the annotations—various cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, etc.—are deserving of copyright, and Lexis does provide free access to the unannotated Georgia Code. But the annotations are vital to understanding the law and are created by the Code Revision Commission. Like the code itself, the annotations are, in the words of the Eleventh Circuit, “an exercise of sovereign power.”

Providing the public with unfettered access to the laws that bind them is not only a matter of fundamental fairness, but necessary for those who wish to follow them to the letter. Limiting access—the Lexis service costs about $400, or two weeks’ worth of groceries for the average Georgia family—makes it difficult for citizens to understand their legal obligations fully. If ignorance of the law is no defense to criminal conduct, then members of the public have a right to learn what the law demands of them.

Moreover, granting exclusive copyright to an online database could pose legitimate privacy concerns for those who access it. Lexis tracks users’ search histories, many of whom would be less than enthused at the prospect of their inquiries into the legality of certain activities falling into the hands of law enforcement, by warrant or simply by request (whether or not the activities in question are criminal or simply lascivious). Since Lexis’s opaque terms of use change regularly—and could take nearly four hours to read on a good day—Georgians, have no real choice but to surrender their privacy in exchange for essential legal knowledge.

Georgia is one among a handful of states that have placed similar limits on access to the official codification of its laws. It is a trend that must not continue. This case is pivotal in returning the copyright power to a proper relationship with the First Amendment.