Nations are, or at least should be, governed by laws and people are expected to follow those laws. That assumes that people have free access to the laws so that they know what is expected of them. But there arose a weird situation in the US where some laws were copyrighted and others who had to follow the laws were expected to pay to find out what the laws were that they were bound by.
How could this happen? It originated in Georgia, a state notorious for its utterly reactionary attitudes. What they did was declare that the annotations to its laws could be copyrighted because they were created by a private party. Cory Doctorow explains what this is all about.
The principal that the law must be both readable and writable is as old as the idea of the rule of law itself, dating back to the Magna Carta and beyond. But in recent years, governments have begun to integrate commercially developed standards into their laws as their official safety code (“The plumbing code of East Dingleberry County shall be version xyz of the Unified Plumbing Standards Body’s Master Code”), and thereafter, people who want to read the law — to make sure they’re obeying it, to investigate whether someone else has violated it — has to pay (often thousands of dollars) to get a copy of their own laws.
Carl Malamud is a rogue archivist with the group known as Public.Resource.Org (PRO) that decided to make the laws freely available.
In an effort to make Georgia’s official laws easily accessible, Malamud had bought a hard copy of the OCGA, paying more than $1,200 for it. (The 11th Circuit opinion reports that a copy currently costs $404, although it isn’t clear if that price applies to non-residents.) Malamud then scanned the books, and sent each Georgia legislator a USB stick with two full copies—one of the scanned OCGA, and another encoded in XML format.
“Access to the law is a fundamental aspect of our system of democracy, an essential element of due process, equal protection, and access to justice,” wrote Malamud in the letter he included in the package.
One would think that publishing and distributing the very laws passed by Georgia lawmakers might be viewed as a common-sense public good. After all, these are the rules Georgia residents are supposed to follow. But when PRO distributed the OCGA online and on USB drives, Georgia’s Code Revision Commission actually sued for copyright infringement. The commission, which collects royalties from sales of electronic copies of the OCGA, claimed that only its chosen publisher, LexisNexis, had the right to distribute copies.
The state of Georgia sued PRO in federal court and a lower court judge sided with the state. But in October 2018, the 11th Circuit Court of Appeals unanimously overturned the district judge with an emphatic opinion that the law must be free because laws are acts of sovereign power and since people are the source of that power, the laws promulgated in their name cannot be copyrighted. Here are parts of the opinion.
Today, we are presented with the question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, may be copyrighted by the State of Georgia. Answering this question means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA.
The question is a close one — and important considerations of public policy are at stake on either side — but, at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.
As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable. Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use.
This attempt by Georgia is yet another example of how legislatures are bought by private entities and then seek to enrich each other at the public’s expense.