Nonprofit May not Provide Free Access to the Official Code of Georgia

Posted by Lauren S. Frisch on

In his Gettysburg Address, Abraham Lincoln referred to the US Government as a “government of the people, by the people, and for the people”.  But how does such a government protect the public’s right to freely access to its laws, when the official laws of one of its states contains copyrighted annotations?

The United States District Court for the Northern District of Georgia recently grappled with this question in Code Revision Commission v. Public.Resource.Org, Inc., 1:15-CV-2594-RWS, 2017 WL 1228539 (N.D. Ga. Mar. 23, 2017).  Confirming that the Official Code of Georgia Annotated (“OCGA”) could be copyrighted, the District Court determined that a nonprofit did not have the right to freely distribute and provide access to the official legal code of this state.  Id. at *8.

The District Court noted that this case presented an unusual problem by virtue of the fact that, unlike Georgia’s code, the official codes of most states are not annotated and most annotated codes are not official.  Id. at *3.  OCGA’s non-statutory annotation text includes summaries of judicial decisions, editor’s notes, research references, notes on law review articles, summaries of Georgia Attorney General opinions, indexes, and title, chapter, article, part, and subpart captions.  The majority of these supplemental annotations were developed by Matthew Bender & Co. (LexisNexis), pursuant a contract with Code Revision Commission. Id. at *1

The Code Revision Commission v. Public.Resource.Org, Inc. lawsuit arose after a California non-profit known as Public Resource “purchased all 186 printed volumes and supplements to the [OCGA], scanned them, and posted copies to its website: https://law.resource.org.” Id. at *2.  It also distributed copies on USB thumb drives to various politicians and government employees.  Id.  Code Revision Commission made claims for both direct and indirect copying infringement, seeking “injunctive relief and removal of infringing materials from the internet”.  Id. Public Resource responded with counterclaims, alleging that state laws cannot be copyrighted.  Id.

The District Court agreed that neither the text of Georgia’s statutes nor the numbering system by which they are organized could be copyrighted.  Id.  The determining factor was the District Court’s finding that the non-statutory annotation text is copyrightable, had been copyrighted, and thereafter was freely distributed by Public Resource.  By providing free access to this copyrighted material, Public Resource jeopardized Code Revision Commission and LexisNexis’ potential licensing fee royalties that could be earned from those who would pay to access these annotations.  Id. at *8.  For this reason, among others, the District Court found in favor of Code Revenue Commission.  Id.

Public Resource appealed the District Court’s decision on April 7, 2017. That appeal is still pending. Pursuant to its contract with Code Revision Commission, LexisNexis provides free public access to an unannotated version of Georgia’s code online