Both Sides Want The Supreme Court To Review Decision Denying Copyright In Georgia's Law. How About You?

Last year the Eleventh Circuit held that the Georgia statutory code, including annotations, was not protected by copyright. It was an important decision, not just for Carl Malamud's PublicResource.org, which had been sued for publishing Georgia's operative statutory law, including the annotations, but for any member of the public who necessarily needs to be able to freely access the law that governs them.

Georgia has now petitioned the US Supreme Court to review the Eleventh Circuit's decision. But more significantly, Public Resource is also planning to file a brief encouraging that review. Not because Public Resource wants the decision reversed, of course. But because it wants the decision to be affirmed.

Here's the situation. If the Supreme Court declines to review the decision, it will stand. That's a good thing, because it means there would be no risk of infringing copyright in publishing the Georgia state code. Given the decision's reasoning, it would also be difficult for any other state within the Eleventh Circuit to assert copyright in its statutory code either. But for any other state outside the Eleventh Circuit the question of whether statutory law could be copyrighted would remain unsettled. The Eleventh Circuit's decision is persuasive authority that courts elsewhere may defer to, but it's not binding authority, so they don't have to. What the Eleventh Circuit got right they could still get wrong.

Also, even if other courts were to ultimately follow in the Eleventh Circuit's footsteps, it is arduous and expensive to have to litigate in each state and circuit in order to get to that point. Meanwhile plenty of publicly-beneficial uses will remain chilled by the fear of potential litigation and liability as we wait for all these courts to eventually rule that this public access, unrestrained by copyright, is OK.

It would be much more efficient if the Supreme Court could just cut to the chase now and affirm that the Eleventh Circuit's holding is the law of the land. The case is ready and ripe for review, with especially cogent reasoning, so taking up this one would be much more expedient than having to wait for any other case to finally reach the petition stage. After all, the public's need to access the law that governs it is just as critical now as it will be later.

An amicus brief is being put together on behalf of law students, legal educators, and lawyers who are solo practitioners or in small firms to remind the court of this fact. All of these constituencies need access to the law, and not just superficial access, but meaningful access that will allow for the analysis necessary to teach, learn, and practice the law as clients, current and future, need. Yet neither are economically in the position to be able to easily afford the subscription fees they have to pay the commercial databases which are able to monopolize access to the law when states can get away with demanding paid licenses for it. Small law firms and solo practitioners are at a distinct disadvantage to large firms who, with generally wealthier clients, are better able to absorb these costs. And all are at a disadvantage to their peers in Georgia, who no longer need to pay to get access to what the Eleventh Circuit recognized was "intrinsically public domain material, belonging to the People."

If you are a solo or small firm lawyer, or are a law student, and would like to sign on as an amicus to encourage this Supreme Court review, click through the link above to the brief, where there is a form through which you may add your name before midnight on May 2.

Disclosure: I've contributed to the drafting of this brief.