Jake Heller

In what is surely one of the more bizarre lawsuits of late, the state of Georgia recently filed suit against Carl Malamud for uploading the state's official laws to the Internet and making them available for free.

This lawsuit has angered many. Michael Hiltzik of the Los Angeles Times calls the suit “ridiculous.” The tech cognoscenti are especially taken aback: Paul Graham, one of Silicon Valley's most well-known investors, marveled that this is happening in the U.S. state of Georgia, not the European Democratic Republic of Georgia; Matt Cutts, the man behind Google's search rankings, notes that the suit is obviously a “bad idea”; and publications such as TechDirt, BoingBoing, Ars Technica and Engadget are baffled. Stoking the flames is the fact that Georgia says in its court papers that Malamud is engaging in a “strategy of terrorism.” The case is already getting ugly.

My initial reaction, like many, is that this lawsuit is insane; the State of Georgia should be applauding Malamud, not suing him, for making its state laws more freely accessible. But there's a lot more happening here than is obvious on the surface, and the case is substantially more interesting, and less black-and-white, than it sounds.

A surprisingly murky legal issue

Georgia may (and likely will) win this lawsuit. That's because the lawsuit isn't about the text of the law itself, which Georgia is not claiming (and cannot claim) copyright over. Rather, the suit is about the annotations, which LexisNexis, a private company, added to the statute, and which happen to accompany the law in the books that Malamud scanned and uploaded online.

Annotations are essentially short explanations of what a statute actually means—how, for example, a court has interpreted the meaning of the text or whether certain aspects of the statute are potentially unconstitutional.

These annotations may in fact be copyrightable. They take a lot of effort to produce, including selecting which cases to include and which to set aside, and providing succinct summaries of thousands of court holdings. They also involve a creative element; instead of rotely repeating how all courts reference statutes, good annotations select only the most important cases, summarize them succinctly and accurately, and display them in a way accessible to the reader.

So the real question in the lawsuit is: are these annotations, created by LexisNexis but connected to Georgia's laws, protected by copyright? The answer may be yes.

To understand the law, we need more than statutes

Indeed, annotations are often as important as the statutes. This is because courts often interpret, narrow and shape the statute into what is actually the law. Imagine statutes as balls of clay that courts can shape; in order to understand the current shape of the law, you'll want to see what things look like after the courts got their hands on them. In the words of the U.S. Supreme Court, “[t]he interpretation within the jurisdiction of one state becomes a part of the law of that state, as much so as if incorporated into the body of it by the Legislature.” Supreme Lodge, Knights of Pythias v. Meyer, 265 U.S. 30 (1924)

To make this concrete, consider an example of an actual annotation of Georgia law. According to Georgia statute, it is legal for the owner of a private pond to fish in that pond without a license. Ga. Code Ann. § 27-4-30 (2014). But what about the landowner's guests? On that point the statute is silent. By reading the annotations, we know that a later ruling clarified that the pond owner's guests cannot fish in his pond without a fishing license. Thanks to the annotations, if I ever move to Georgia, I'll know not to invite my friends to fish in my pond.

Of course, in this case the information introduced in the annotations isn't likely to result in any serious consequences. But it does illustrate the potential importance of the annotations; just as they inform the pond owner's choice to stop his friends from fishing in his pond, they help us understand how courts have shaped statutes and provide clarity about our legal obligations. This context can mean the difference between a businessperson understanding industry regulations or being subject to fines; a criminal defendant knowing her rights or waiving them; or a lawyer recognizing or missing a controlling precedent.

Why Georgia let its laws become private property

Right now, not just anyone can publish annotations of Georgia's law. This is because doing so requires access to the law in the form of data—a format that allows computers to parse, understand and use information so that it can be turned into, for example, a publication with annotations. Without getting access to the data version of the law from the state, the alternatives for creating that data are bleak—like hand-copying the tens of thousands of sections of Georgia law and keeping it up-to-date by hand, an endeavor that could involve thousands of people and cost millions. Not exactly a realistic option.

Only LexisNexis is given the data version of the law that, as a practical matter, would be necessary to anyone who wants to publish annotations on the law. For the rest of us, we are left with no choice: subscribe to LexisNexis's annotations, or no annotations. That's it.

Moreover, Georgia has made its annotated copy of the law the “official” code for Georgia. This matters because adopting one set of annotations for the official code means Georgia has tacitly endorsed the interpretations contained in these annotations. Judges in Georgia (and their clerks) will always have the LexisNexis annotations in front of them when reviewing the code. It's easy to see why monopolizing this type of judicial access is problematic.

The State of Georgia rationalizes this approach because they believe these annotations could not exist without it. In this view, if the annotated law were made freely available and LexisNexis was no longer profiting from the annotations' creation, it could be that LexisNexis would stop providing the annotations in the first place. From Georgia's perspective, the only options are to have one provider supply (and control) access to information about the law, or have no opportunity for that information to even exist.

Why Georgia is wrong

Georgia's outlook may have made sense when “access to the law” meant “access to the books in which the law is written,” in a time when widespread access to information in general was much more difficult and expensive to support.

But in the age of the Internet, this viewpoint no longer makes sense. The better approach would be for Georgia to make its statutes available as data, free for anyone to download and republish.

This doesn't mean Georgia needs to include copyrighted annotations as part of this freely accessible data. Providing innovators with free access to the text of the law itself in data form, including statutes and cases, would allow for creation of alternatives to those annotations: different annotations created by different people, nonprofits and companies, or even new and better systems for connecting cases, statutes and ideas in ways that benefit anyone seeking information about the law. With access to this data, innovators can develop all kinds of different services to help people better understand the law: big data, visualizations, crowdsourcing and more.

By providing more open access to the law itself, Georgia (and, ideally, the rest of the country) could open up the opportunity for innovators to create better and cheaper alternatives. And because there would be more competitors in a free market offering their own services, those services would be offered for cheaper than the present option (and in some cases for free). The current monopoly would give way to much wider and more egalitarian access to law.

The collective outrage in response to the suit against Malamud shows that many see the folly in keeping all the existing data about the law locked away from innovation–especially innovators. Many in the tech and open information world are eager to develop new tools for understanding the law, and to do this they need the ability to access the law in its data form.

What this means for the Georgia suit

Unfortunately for Malamud, and despite the disbelief of many outraged commentators, there is a solid chance that Georgia will win its lawsuit.

But Georgia's copyright is not the point.

The point that is that Malamud's right to repost Georgia's laws should be a concern for everyone who interacts with the law. The point is that, with or without annotations, Georgia and other states need to make this data freely available and clear the way for not just Silicon Valley innovators, but also the legal community and, perhaps most importantly, the public to become collaborators in making the law more accessible, more understandable and more free.

Jake Heller is the founder and CEO of Casetext, a free legal research and publishing platform. He was previously a litigator at Ropes & Gray and a clerk in the First Circuit Court of Appeals. He was named to Forbes 30 Under 30 for Law & Policy for his work at Casetext.