As more private companies upload judicial opinions, state and federal regulations and other public court documents, attempting to copyright those documents may prove futile. After all, many public court documents are deemed uncopyrightable and essential for public consumption.

“Most public agencies recognize there's a public interest in making their records as readily available to the public as possible,” said Jones Day's Peter Canfield. “If there's a cost that gets in the way, it should be a minimal one.”

As U.S. state and federal government agencies have faced the burden of uploading voluminous state regulations, laws and judicial opinions, some are outsourcing those tasks to private companies. Those companies, in turn, may seek to copyright the material as their own.

Matt Roessing, a Georgia-based lawyer and lecturer at the University of Georgia, said the practice is a “uniquely American, capitalist approach.” But recently, that practice was challenged in the U.S. Court of Appeals for the 11th Circuit.

In Code Revision Commission v. Public.Resource.Org, the circuit court ruled Georgia's laws and its included annotations weren't copyrightable. The Code Revision Commission, which is a state agency that oversees the Official Code of Georgia, collects royalties from LexisNexis when Lexis sells print, CD-ROM and online versions of the annotated code. The commission claimed, and a district court agreed, that Public.Resource was committing copyright infringement when it uploaded the code and its annotations online for free use. The 11th Circuit, however, reversed that ruling, stating that public records can't be copyrighted.

The Code Revision Commission decision came 10 days before the 11th Circuit also issued an opinion in Fastcase v. Lawriter, a case where a legal service provider claimed copyrighting state regulations precluded an organization from reposting those regulations.

In 2010, Fastcase partnered with the State Bar of Georgia to create a database of Georgia law and regulations. The Bar pays Fastcase a yearly fee for the service. In 2015, Georgia's secretary of state entered into a contract with Lawriter allowing the company to post the regulations for free public usage, prompting Lawriter to allege copyright infringement. The district court dismissed the case for lack of jurisdiction, but on Oct. 29 the 11th Circuit remanded the case back to the district court.

The 11th Circuit didn't address copyrightability of laws as it did in Code Revision Commission but it may be a factor in Fastcase. The 11th Circuit's ruling aligns with federal laws that prohibit copyrighting laws and regulations, according to lawyers contacted by Legaltech News.

Baker & Hostetler partner Oren Warshavsky cited 17 U.S. Code Section 105 as a regulation that says federal laws aren't copyrightable. Warshavsky also said a section in the Code of Federal Regulations prohibits the federal Copyright Office from registering laws and regulations, and that the policies seemed to imply people should have access to the law without fearing possible copyright infringement.

“As a matter of public policy, it seems unfair that someone could obtain the exclusive rights to publish the laws of a state and exclude others from quoting those laws or decisions,” Warshavsky said. “If you allow the other private party or government to copyright state statute that would in essence preclude a third party from copying those statutes or laws, subject to any defenses, like fair use of course.”

Michael Boutros, a partner in Atlanta-based Krevolin & Horst, added that because citizens are the writers of law, no private company can claim copyright of the text. However, he noted any summary or analysis of judicial opinions or regulations can be copyrightable. Such copyrightability also extends to legal briefs that lawyers submit to courts and agencies because briefs are an individual's analysis.

“They are an individual's analysis, rearrangement of underline laws. How they are structured can be technically copyrightable,” Boutros said.