Everyone involved in the case agreed that the text of state statutes could not be copyrighted. But the state of Georgia argued that it could copyright annotations that are distributed with the official code. These annotations provide supplemental information about the law, including summaries of judicial opinions, information about legislative history, and citations to relevant law review articles. The annotations are produced by a division of legal publishing giant LexisNexis under a work-for-hire contract with the state.
The copyright status of the annotated code matters because the state doesn't publish any other official version. You can get an unofficial version of state law for free from LexisNexis' website, but LexisNexis' terms of service explicitly warned users that it might be inaccurate. The company also prohibits users from scraping the site's content or using it commercially. If you need the official, up-to-date version of Georgia state law, you have to pay LexisNexis hundreds of dollars for a copy of the official version—which includes annotations.Public.Resource.Org defied Georgia's rules and published the entire code, including annotations, on its website. The group argued that as an official document of the state legislature, it couldn't be protected by copyright. The state sued and won at the trial court level. The 11th Circuit Court of Appeals reversed that ruling and sided with the non-profit. In an unorthodox move, the people at PRO urged the Supreme Court to review the case, even though doing so could reverse their appellate win, because they wanted to set a nationwide precedent.
The group's gamble paid off—but just barely. Five justices bought PRO's argument that Georgia's official code was in the public domain. Four justices dissented and would have allowed the Peach State to copyright portions of its official legal code.Old Precedents, New TechnologyThe Supreme Court hasn't ruled on the copyright status of official documents in over a century. But a couple of rulings from the 1800s said that judicial documents could not be copyrighted. These cases involved court reporters—writers who were chosen by the courts to keep records of court proceedings and publish them. Official court reporters were more independent in the 19th century than judicial staff today, and they would sometimes publish their own annotated versions of judicial opinions.
But the 19th-century Supreme Court nixed efforts to claim ownership of content that had originally been written by judges. This applied not only to majority opinions (which are legally binding) but also to dissenting opinions and official summaries of court rulings. At the same time, the Supreme Court held that court reporters could claim copyright over annotations that they produced independently from their official duties.The Georgia case is about the legislative branch, not the judicial branch. But the parallels are obvious. PRO pointed to the Supreme Court's prior holdings that official documents couldn't be copyrighted. The state of Georgia countered by pointing to the ruling that annotations could be copyrighted.
The high court's five-justice majority sided with the non-profit group. In an opinion written by Chief Justice John Roberts, the high court held that the key factor was who had written the materials. And while most of the annotations were initially drafted by LexisNexis personnel, the state's legislative council held final authority over the document's contents.