Georgia's four-year fight to stop a California public interest group from making the state's annotated legal code available for free online drew pointed questions from the U.S. Supreme Court Monday.

Carl Malamud (Courtesy photo)

Georgia contends the Official Code of Georgia Annotated is copyrighted and that it has given a LexisNexis publisher the exclusive rights to publish and sell it. The state contends that Public.Resource.Org violated that copyright when organization founder Carl Malamud bought the 186-volume and all of its supplements and made it available for free online. The state sued in 2015, prompting a countersuit by Public.Resource.Org. 

On Monday, Chief Justice John Roberts quickly homed in on the significance of the annotations, whether they were "official," and, if so, whether that gave them "more weight when they're cited in court," according to an unofficial transcript of the arguments.

Justice Ruth Bader Ginsburg asked why, if judges' rulings aren't copyrightable as a matter of law, the Georgia General Assembly has grounds to argue that summaries of state law qualify for copyright protection.

Codes of legal statutes and judicial rulings traditionally are not eligible for copyright protection—a concept known as the "government edicts doctrine."  But Georgia's Commission on Code Revision contends that summaries of judicial or attorney general opinions and other editorial notes published as guidance in the annotated code are eligible for copyright protection because they are "commentary" not enacted into law by the General Assembly.  

Attorneys for the Public.Resource.Org counter that the first statute in the state's official code—1-1-1—merges annotations and statutory language into one official, annotated code. 

A federal trial court ruled in 2017 that Georgia's annotated legal code was copyrightable because the annotations produced by the state's contractor are not an official part of the code. A panel of the U.S. Court of Appeals for the Eleventh Circuit reversed a year later.

Joshua Johnson of Vinson & Elkins in Washington, D.C., arguing on behalf of Georgia, sought to distance the state's involvement in the annotations, contending they are prepared by a commercial publisher and are not individually approved by the General Assembly.

But Justice Neil Gorsuch asked Johnson, "Aren't annotations … frequently used by state courts as indications of the legislature's intentions?"

"Why would we allow the official law to be hidden behind a paywall?" Gorsuch added.

"The annotations are not the law," Johnson replied. "So the law is not behind a paywall."

"So you're disavowing that they're never used by the state courts as indications of legislative intent? That never happens? That's the representation that you're making to this court?" Gorsuch pressed.

Johnson replied the annotations would never be used to indicate legislative intent. Johnson also argued that upholding 11th Circuit "would scuttle numerous states' regimes for publishing annotated official codes." 

Eric Citron, an attorney at Goldstein & Russell representing Public.Resource.Org, countered that there is a simple legal question: Is the annotated code a legal work, and is it published under the authority of the state?

"If it is, then it can't be copyrighted," Citron said.

In addition, he argued, the annotated code "is still the voice of the state," and annotated commentary is "often used by the courts as an authentic source of law."

 Justice Brett Kavanaugh challenged Citron as to whether and to what extent annotations in the Georgia code are relied on by the courts. And, the justice said, a cross-section of states that signed on to an amicus brief in support of Georgia made argued the 11th Circuit's ruling will make it difficult to incentivize the creation of the annotations in the first place.

"The official versions bear the states' imprimatur," Citron replied. "They get to supervise what goes in them. That's the source of the problem with the copyrighting of it. Lexis isn't going to agree to do the annotation work in exchange for a price cap. What it wants for the price cap is the right to publish it officially."

The U.S. Justice Department also weighed for Georgia during Monday's arguments. Anthony Yang, assistant to the U.S. solicitor general, contended the annotations were "research aids" created "after the fact," making them eligible for copyright. He also described them as "a convenient reference" that "does not constitute the law."

"Well," Justice Elena Kagan observed, "The people look at the annotations pretty carefully as guides to what the law is all about."

"And if the [Georgia Code Revision] Commission is basically involved in what should be in and what shouldn't be in [the legal code] to explain to people what the law means, why would that be copyrightable?" she added.

Yang replied:  "I don't think they're actually explaining what the law means."