U.S. Supreme Court building. (Photo: Shutterstock.com)

There can be no innovation in the legal field without open access to data.

Lawyers rely on legal data to make decisions. Consumers use it to educate themselves about the laws that govern them. Academics leverage it to not only teach, but to also innovate, create and collaborate with other academics to drive change in legal culture. Simply, we cannot improve or innovate the law if we are barred from full access to it, whether by entrenched professional norms or, as in the case of Georgia v. Public.Resource.Org, spurious arguments that the law is, by its nature, precluded from open publication.

2019 promises to be pivotal for the open law movement as The Supreme Court reviews whether to grant certiorari in the case between Carl Malamud's open law database Public.Resource.Org (Public Resource) and the State of Georgia, which has attempted to claim copyright protection in its state statutes and annotations. The case is a potential vehicle for deciding, once and for all, whether states and private organizations can copyright the law.

Ten Innovators Join Forces

In 2015, Georgia successfully sued Public Resource for publishing its state laws, and annotations to its laws, in the Northern District of Georgia. On appeal, the U.S. Court of Appeals for the Eleventh Circuit ruled that the Georgia statutory code—including its annotations—is not protected by copyright. The case was a watershed moment for open law advocates and represented a momentous shift in the direction of a comprehensive open legal data policy.

When Georgia predictably petitioned the Supreme Court to review the Eleventh Circuit's decision, legal technology companies joined forces to file an amicus brief in support of review—not because they wanted to see the Eleventh Circuit's decision reversed, but because they wanted it unequivocally affirmed.

If SCOTUS declines to review the Eleventh Circuit's decision, it will stand, but only with respect to the Georgia state code and for other states within the Eleventh Circuit. As such, the law would remain unsettled for states beyond that region. If SCOTUS reviews the case and affirms, however, the principle that state statutory codes are not copyrightable would become the binding law of the land.

Along with nine innovative organizations and Stanford Law School's Juelsgaard Intellectual Property and Innovation Clinic, UniCourt helped author an amicus brief in support of Public Resource's position and petitioned SCOTUS to grant certiorari. The nine other organizations include:

• Judicata—A company that provides research and analytics tools to turn unstructured case law into structured and easily digestible data.
• Casetext—A legal technology company that provides information and research services to litigators, leveraging artificial intelligence and the legal community's expertise to provide equal access to justice.
• Free Law Project—A nonprofit organization seeking to create a more just legal system by providing free, public and permanent access to primary legal materials online for educational, charitable and scientific purposes.
• Fastcase—A legal technology company that provides tools to make legal research easier and more intuitive through search-data visualization.
• Docket Alarm—A legal tech company (owned by Fastcase) that provides docket analytics and case tracking services for attorneys across jurisdictions.
• Internet Archive—A public nonprofit that collects and digitizes material from a variety of sources, including libraries, educational institutions, governments and private companies, compiling it into a vast internet library.
• Justia—A database of free case law, codes, regulations, legal articles and other resources.
• Sina Bahram—A digital accessibility researcher, inclusive design expert and founder of Prime Access Consulting, a company dedicated to making the world more inclusive and accessible to all people, independent of ability.
• OpenGov Foundation—An organization that produces cutting-edge civic software used by elected officials and citizens in governments across the United States.

This group of legal tech companies and open access advocates joins forces with mutual concern about the future of legal data accessibility. As the brief notes, “this uncertainty hampers [their] development and use of legal access and research tools… [and] stymies valuable innovation and competition in an industry characterized by high concentration and limited options for users.”

Without full access to the law, innovators will have to navigate a minefield of mottled state regulations, assessing which states protect their laws under the auspices of the federal copyright statute and thus preclude them from free publication.

More importantly, comprehensive access to the law is vital to the foundational principles of due process. Both the general public and legal innovators require free access to collect, use, assess and distribute the law in innovative ways, free of traditional barriers that make it accessible only to those with an insider's advantage. Granting copyright protection to any part of a state's legal code will, as the amici portend in their brief, “worsen existing accessibility barriers to legal information, hamper valuable innovation, and further reduce already limited competition in the legal information, research, and analytics industry.

The Push for Consistent Precedent

Concern over the repercussions of distributing copyrighted materials has affected many of the amici's service offerings and collectively and individually stunted innovations in improving access to legal information.

In expanding our offerings, UniCourt specifically declined to provide our users with court coverage for Georgia state courts for fear that publishing these court records would incite a copyright infringement lawsuit. The chilling precedent of Georgia's lawsuit against Public Resource has forced many innovators to defer adding coverage of a particular jurisdiction for as long as these copyrightability concerns persist.

Not to mention, Georgia's public fight to protect its laws has highlighted the reality that it is not the only one out there: Other states also claim copyright protection in their laws or cede publication rights to private legacy companies like LexisNexis and Westlaw. It's only a matter of time, then, that others will follow Georgia's lead—especially if a legal research platform or database pokes the proverbial hornet's nest by publishing a state's laws for public benefit.

Securing a Supreme Court precedent in favor of open law is key to ensuring that legal tech companies can continue to provide the innovation needed to bring the legal profession into the 21st century, an effort that will continually close the access to justice gap.

Josh Blandi is the CEO and Co-Founder of UniCourt.com, an SaaS offering using machine learning to disrupt the way court records are organized, accessed and used. UniCourt helps clients tap into the mountain of court data generated everyday for legal analytics, business intelligence and development, background checks, case research and many other innovative uses.