Public.Resource is a nonprofit organization with a mission of improving public access to government records and primary legal materials. In furtherance of its mission, it posts such materials, including state statutory codes, online on its website. In 2015, Georgia sued Public.Resource for copyright infringement after it purchased the entire print edition of the OCGA from LexisNexis, scanned it, and posted it.
Georgia did not dispute that the law itself, such as the statutory text in the OCGA, is not subject to copyright under common-law decisions going back to 1834. Rather it argued that the annotations, such as summaries of judicial opinions, which are prepared for the OCGA by Lexis under a publication agreement, are copyrightable because they do not have the force of law. In 2017, the U.S. District Court for the Northern District of Georgia agreed, holding that Public.Resource infringed Georgia’s copyright by posting the entire OCGA and issuing an injunction against it.
In last week’s decision, the Eleventh Circuit wrestled with “profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives,” and rejected the district court’s bright line “force of law” test for whether a state can assert copyright in an edict of government. Instead, on this issue of first impression in the Eleventh Circuit, the panel held that there are three hallmarks of uncopyrightable law: (1) it is written by particular public officials entrusted to exercise legislative power, (2) it is authoritative, and (3) it is created and given legal effect through certain prescribed processes. Applying this analysis, the opinion concluded that the annotations in the OCGA, while not having the force of law, are “part and parcel of the law,” constructively authored by the people and therefore not subject to copyright. The entire OCGA is in the public domain and must be free for publication by all.
Public.Resource is represented by Elizabeth H. Rader, counsel in the Intellectual Property Litigation and Appellate practice groups, who argued the appeal, and Jason Rosenberg, a partner in the Trademark & Copyright Group. Sarah Parker, a former associate in that group, was also on the briefs.
The case is Code Revision Commission v. Public.Resource.Org, Inc., No. 17-11589, in the U.S. Court of Appeals for the Eleventh Circuit, 2018.