Kyle K. Courtney is the copyright advisor for Harvard University, working out of the Office for Scholarly Communication. He...
Associate Dean Kim Nayyer oversees Cornell Law School library operations and services to the law school and represents the...
Todd Melnick is clinical associate professor of law and director of the law library at Fordham University School of...
Ed Walters is the CEO and co-founder of Fastcase, an online legal research software company based in Washington, D.C....
In this panel hosted by Ed Walters, guests Kyle Courtney, Kim Nayyer, and Todd Melnick discuss Georgia v. Public.Resource.Org–a case The US Supreme Court has recently agreed to hear. They explain the possible implications of the case, particularly its potential effects on the openness and accessibility of public law. They also examine current trends in what they call the “Golden Age of Legal Research Innovation”–Legal materials are more public than ever, and the innovation surrounding this availability helps all consumers have a greater understanding of how law works in our country.
Kyle K. Courtney is the copyright advisor for Harvard University.
Kim Nayyer is an associate dean at Cornell Law School where she oversees library operations and represents the law school library within the Cornell University Library system.
Todd Melnick is clinical associate professor of law and director of the law library at Fordham University School of Law.
Special thanks to Fastcase for sponsoring this episode.
AALL 2019: Does Georgia Hold a Copyright To Its Annotated Code?
Recorded Intro: This episode is brought to you by Fastcase and its comprehensive suite of legal intelligence tools. Fastcase offers the full suite from legal research, to analytics, document tracking, to secondary treatises, AI tools, legal news, and more. Fastcase is the smarter way to run your law library. And now, on to the show.
Ed Walters: Hello, and welcome to another edition of “On the Road” with Legal Talk Network. This is Ed Walters, and I’m the host for today’s show which is being recorded on location at the American Association of Law Library’s annual meeting and conference from lovely Washington, DC. We have three great guests today talking about the Georgia v. PublicResource.org case. Kyle, why don’t you introduce yourself.
Kyle Courtney: Sure. My name is Kyle Courtney. I am the copyright advisor at Harvard University Libraries out of the Office of Scholarly Communication.
Todd Melnick: I’m Todd Melnick. I’m the director of the law library at Fordham Law School, and I’m the AALL government relations committee outgoing chair.
Kim Nayyer: I’m Kim Nayyer. I’m the Edward Cornell Law Librarian at Cornell University. Just recently moved here from Canada where I’m also vice president of the Canadian Association of Law Libraries, and a former co‑chair of the copyright committee of that association.
Ed: So an august panel this morning. You couldn’t really ask for better expertise on copyright and the public domain. In this case, which is now being heard by the US Supreme Court, maybe Kyle you can tell us how did we get to this point?
Kyle: I guess we start with there’s something referred to as the Government Edicts Doctrine, which basically says that when government creates law, that law should be available or is uncopyrightable, or in the public domain. We use all of those words.
When someone produces law at a state or federal level, the idea is that the citizens of that state or the citizens of the United States should have access to that law, unfettered access. But, what if the state for fiscal reasons, for other reasons, decides to not print that law themselves. They hand over that authority to a commercial vendor.
Then, but they still claim that that is the official code, as if it was published by the state itself, except it’s not being published by the state, it’s being published by a vendor. Does that motion, does that activity, does that contract ‑‑ we can get into all sorts of great topics around that ‑‑ render that code still in the public domain despite the fact it’s being published by a private party?
Ed: In this case, the State of Georgia publishes its code, legislators in the State of Georgia produce the law, it’s signed into law by the governor, and then what happens from there, Kim?
Kim: This is a new jurisdiction to me, but I have studied this case in detail, and from what I understand, there are additional annotations that are, from my reading of the case, quite heavily and closely directed by the legislature that are included and become part of the Georgia Official Code. Have I got that right?
Ed: I think that’s right.
Todd: I think so, yeah. I understand that there are 22 states that have this condition where for whatever reason, as Kyle said, they are allowing a private company to publish their only official version of the code, but I don’t think that it’s common. I don’t know if Georgia is the only example where the annotations have been incorporated into the official code by the legislature.
The annotations are very important, they’re very useful to the researcher. Everyone knows that statutory language is designed sort of to do certain work, but it’s not designed to be communicative. It’s not something that’s easily read by the public. The annotations are very important to understand what the law is. All legal researchers, law lawyers, law students use annotations to statutes just to understand what the statutes are.
Ed: What are we talking about here, are annotations like an original work? Are they excerpts? What are we talking about with annotations?
Kyle: I would say, do they have the spark of creativity necessary to satisfy the copyright threshold? Perhaps, because you’re describing what the law is supposed to do or…
Ed: For our listeners, what are we looking at when we look at an annotation?
Kyle: We’re looking at, basically, interpretation of the law which could include both words with examples or explanations. Could include what the legislative intent behind the passage of the act was. I think it’s ironic though, shouldn’t the act itself explain all this?
A well‑written statute should be able to be read plainly on its face, but despite that because of the language of the law, certainly we need some sort of interpretation from this. Or, it might even include where this law has been interpreted. Annotations can include other sources.
Ed: I know some annotations are just citations and judicial opinions with text around the citation, right?
Todd: It can be different for different jurisdictions, for different publishers, annotations could be simply citations to secondary sources, and those secondary sources do the explanation, not the annotation. The annotation is just a citation. They are often, and one of the most important kind of annotations is cases interpreting the statute. But again, the annotation isn’t the case itself, it’s a citation to the case and maybe a summary, maybe a blurb.
I think it’s an open question, how much intellectual work goes into it? I think that I would prefer that someone with experience in the law writes the annotations. I don’t think they’re automatic, but it’s something much less than pure creative work.
Kim: I think that there can be a range of annotations. You can have scholarly works where a number of different authors cite selected cases, not comprehensive cases, but selected cases and add their own commentary and thought to try clarify or interpret their interpretation of a piece of legislation or sections of legislation.
Then you’ve got another end of the spectrum which is really compiling very, very specific ‑‑ as Kyle said, that don’t really have a spark of creativity ‑‑ notes to update the law. Without those, anyone reading the statute would not have a current work of the law available to them. They would not have the current statute available.
Ed: Now in this case, the district court in the original litigation said that the annotations probably were copyrightable, copyrightable matter, and copyrighted so they couldn’t be produced. I think the facts of this case, if I’ve got this right, are that Carl Malamud of PublicResource.org ‑‑ in full disclosure I serve on the board of PublicResource.org ‑‑ said I have the official code of Georgia annotated, which is the State’s official code.
I’m going to make copies of it, scans of it, and publish them online. Not in the dark of night, I’m going to tell the State of Georgia, I’m going to tell the publisher LexisNexis that I’m doing this. This is public law, and I’m going to do this as an act of speaking law, right? He said I’m not going to make a big mystery of this, I’m going to publish it.
The State of Georgia sued him, and in the district court the court held that the official code of Georgia annotated was copyrighted. Then on appeal to the 11th Circuit, the 11th Circuit said even if the annotations are copyrightable, even if they have that spark of creativity, you can’t copyright them because they are the official code. At the end of the process, the Georgia legislature contracts some of its work out to a private publisher as if compilation authority in the state themselves were doing it.
They subcontract the work out, and then they take the annotations and bless the entire official version as the official code of Georgia. There is no other official code, right?
Ed: Well that would be interesting. I think that’s what the case is really about, it’s like the word official. If you take that out, we’re spoiled in Massachusetts, we have three versions. We have the government version, we have the Lexis version and we have the Westlaw version, which are all published. If we need official, we just go to the one that the government still publishes. Here, because of that handoff, the word official is what triggers this whole incident.
Is it official from A to Z, including annotations and everything else? We’re in copyright, certainly, but we’re also in the land of the law of agency. If I hire you, are you an arm of me, and therefore Lexis became an arm of the government for that moment, because contractually they are that? I think that’s interesting.
Then also because of the edicts of government doctrine, because you used the word official, when you’ve used official, that wipes the slate clean and everything therefore is in the public domain. I think that’s fascinating, it’s just the word official that triggers this whole case.
Todd: I love the edicts of government doctrine, I just love the old word edicts. The edicts doctrine says in the states not every publication of a state party in the furtherance of his or her work is in the public domain as it would be in the federal system.
If it is an edict of government, if it has the power of law or if it is the law, I think the court in the 11th Circuit said the annotations are not the law, but they’re close enough, they’re important to understanding the law, and more importantly I think, the legislature has adopted them as official, and I think Kyle’s right. That’s the aspect that really makes this a different case.
Also it seems to be the closeness, in the contract, the specificness of the contract to Lexis, and the oversight of that contract by the Law Commission in the state, and how carefully that is integrated. Now I don’t know if that happens in other states, but it’s clear in this case that there’s a very close relationship between the law revision commission and the contract with Lexis to do the annotations. Because it’s that close, it seems to me that Lexis is doing the work of the legislature.
They’re not creating their own, independent, individual source, they’re doing the work of the legislature and as Kyle said, it’s agency issue, and therefore their work product is owned by the people and should be available to the people for free.
Kyle: Indeed, the 11th Circuit says because they’re agencies of the legislature, and the legislature acts on behalf of the people, where the people are sovereign, it is in fact the people who are the authors of the work, so it can’t be copyrighted.
Kim: That’s some of the most exciting language in the case. I think somewhere around page 21, 23, I don’t know how many times I’ve read that, but it is exciting language.
Kyle: Just so we’re clear on this, people who are advocating for open law wouldn’t say that a private publisher couldn’t take the official code like they do in Massachusetts, and then create editorial products around the official code. Indeed you could have many of them that could be separately copyrighted, as long as it is not the one single unified official code for that state.
Ed: One code to rule them all.
Kyle: I think this is what drives legal innovation in the 21st century is that hey, if we make these codes in available in the public domain as they should be, as edicts in government, then legal innovators can come along and do neat stuff with them, that had not been done before and make it more accessible in ways that we hadn’t perceived. Making research easier, making people find problems faster, making law students suffer less.
Kyle: These are things that are the advantage of putting these codes into the public domain. We’ve been doing this since, I don’t know, around 1776. Where edicts of government is old, we’re using the old words, because it’s been around a while, the concept that laws should not be locked up in things like copyright. I think there’s the plus side to this. Smart legal innovators, people that are running say newfangled legal research companies.
Ed: For example.
Kyle: No, but this is the golden age of this type of stuff, and I think the public and the edicts of government doctrine helps drive that forward.
Ed: Does it make sense to think a little bit about why a company like Lexis would be fighting this so hard? Aren’t they worried about the slippery slope? If the Supreme Court decides that the annotations in the Georgia case are not copyrightable or in the public domain, then is the next case annotations that haven’t been adopted by the state legislature as official, and isn’t that what they’re worried about and maybe other secondary sources?
Really their bread and butter is annotations, commentary on the law. These are companies that make a lot of money by taking the public domain and adding some value to it, arguably. Adding some intellectual additions to it, and those intellectual additions, those editorial enhancements they’re called, are really important to law librarians, really central. We pay a lot for them, to these companies. They’re worried that we won’t have to pay as much in the future, it seems to me.
Kim: I don’t know what their motivation would be, but I really think that the 11th Circuit decision makes it quite clear, that that’s not really a risk. That’s not what they’re getting at, that’s not the kind of commentary, secondary product, that publishers can produce that’s at risk in their copyright realm.
Kyle: Yeah, fully agreeing with that there. They’re saying this slice of the pie, you cannot own. But there’s so much other slices available that’s left. I think that is interesting, affecting the economics of their decision making in the future.
Ed: Kim, this parallel some work that you’ve done in Canada as well, right?
Kim: It does, it’s one of the reasons that the “we the people” language is so interesting. In Canada, there is provision in the copyright act referring to crown copyright. Crown copyright isn’t really defined very clearly, and it’s not actually established or created by the statute. It draws very far back into ancient realm of royal prerogative.
Ed: For listeners who don’t know, can you say what crown copyright is?
Kim: Oh, so crown copyright is the concept, you can look it up in Section 12 of the Canadian Copyright Act, but it’s the concept that works that are created by the government, or a government department, they’re covered by crown copyright which sets a different term of protection. That’s what it is.
Ed: Which means the government, the crown, holds an exclusive monopoly on the publication of those works.
Kim: Actually in Canada, some of us are working to quite clearly draw the distinction between the government and the crown. Saying that in the context of legislation and case law, those are not actually works of the crown, those may be works of the government who are elected by the people.
Again, drawing parallels to the State of Georgia, and in the case of case law, we certainly don’t want to say that judges make their decisions by or under the direction or control of the government, because that would eliminate the separation of powers in Canada. There recently was an opportunity for this issue to come before the Supreme Court of Canada, which has never, ever considered this section of the copyright act in its history.
The Canadian Association of Law Libraries, through me and a co‑counsel, went before the court and we made the case as an intervener, or an amicus, that whatever you say about crown copyright in the case that was at issue, please clarify that crown copyright cannot apply to primary law in Canada. That is not a subject matter that is copyrightable.
Kyle: Now we have a similar provision under US law, under section 105, and I pulled it up because it’s early, and I didn’t want to botch the quote. “Copyright protection under this title is not available for any work of the United States government.” Which is great, right? On the federal level.
Kyle: One of my pet peeves is the state level, and I did work last year outlining a map of the United States, and where copyright is asserted at the state level over certain things. Not just law, and it’s surprisingly red, as enclosed, as opposed to open, green. States certainly have a vested interest in copyrighting their stuff, at least they think they do.
I’m trying to prove to them that they do not. What’s interesting is some states are adopting methodology where they’re retaining copyright, kind of like crown copyright, or the government keeping copyright, but they’re releasing stuff under open licenses, like Creative Commons and such.
Kim: I should add that that’s quite exactly the situation in Canada. Judgments as released by the court are made available on the Web, in a very accessible format and most jurisdictions have their law openly available as well, but it is still retained. There’s a still a desertion of copyright, but a license.
As you were mentioning earlier, Kyle, what we’re trying to do is say that copyright doesn’t really apply here, this is not a situation of it, and by having it openly available, we can do so much more with it.
We can go back historically and digitize old statutes that are currently only available in print. Allow people to do creative things with them, explore them, make them more accessible, and allow the law to be published as data rather than simply text. Which again, allows many more options. The governments have actually made the law quite available in Canada, but we would like this, we think it’s a new era now, and it’s time for a different kind of recognition of availability.
Kyle: Here, here.
Ed: You look, there is a golden age of legal research innovation right now. You look at companies like Casetext, or Judicata, ROSS Intelligence, there’s a whole lot of innovation in the legal research space in part because the underlying materials are more available than ever. Every time we make primary law more open, there is a flourish of innovation around it. We should be promoting this, right?
We’ll have products that we can’t even imagine. You look at the analytics market right now which is just created by public law. Every time we make this material more open, more available to more people, the better products we get for it and lower prices. It’s always a win for people and for consumers.
Kyle: I want to mention a funny case about this that’s recently come up. Text and data mining in legal opinions and statutes and stuff is an important part in having stuff in the public domain. In France recently, however, they did some text and data mining of the judiciary’s decisions, and it turned out that there was total bias in this one direction, and it was really interesting because they make their laws openly available to for text and data mining.
The judges actually got so upset, that they’re passing something that says I’m banning you from text and data mining our decisions, and now the lawyers are jumping on board, because they don’t want any new data to reveal stuff about their potential bias.
Ed: It’s passed in France.
Kyle: It had never comprehended that making the law openly available would result in this type of legal research, showing bias.
Ed: It’s a criminal offense.
Kyle: Right, it’s criminal. They’re going to try to ban it in some capacity. I just think wow, that is such an extreme reaction to making the stuff open. I’m hoping that that fear does not spread.
Todd: Another example of an attempt to make law open, the government relations committee of AALL that I’m the outgoing chair, had a lobby day on Friday and one of the things we were lobbying about was the electronic court records reform act, which is the act that would remove the paywall from PACER, which is the interface with federal dockets.
One big reason to do that is to make it easier for these innovative companies to access that data and to use it without having to constantly run up against the paywall. It’s not only innovative students, innovative scholars, innovative computer scientists should have access to this public information, and should be able to dice it, and chop it, and use it, and make it available so that we can understand how law works in this country.
Ed: Dare we say, legal tech companies already are making very good use of small amounts of PACER data. If you give those innovators full access to PACER data, God knows what they could do.
Kyle: Isn’t that ironic that we’re like, oh don’t worry, the federal government’s completely open, except however, there’s another wall that you’ve got to get over. Even when we get it right.
Kyle: We’re paying, what is it, like in the hundreds of millions, the federal government is earning, or something like that?
Todd: $147 million a year.
Kyle: There we go, you knew the exact number. How much does it cost to run, sir?
Todd: $3 million.
Kyle: Who would want to give up that gravy train, though? That’s what I’m concerned about, about that free access to the law movement.
Ed: They may not want to, but they may have to anyway.
Ed: Let’s do closing thoughts. Kim, what’s come across?
Kim: I think what thought that’s come to me a lot, is how a lot of this is coinciding at once. I think it is a mark of the times that we’re in. Todd mentioned the lobbying that is happening at AALL this year. In Canada, the same kind of thing happened. There was a movement before the parliamentary committees, again, to address this issue of crown copyright by legislation change.
It’s time. People are needing to access the law in different ways. People are needing to ensure everyone can access the law. We’re in a different era now.
Todd: I just like to quote from the Wheaton case, going all the way back to the beginning of the republic.
Ed: Wheaton v. Peters.
Todd: Yeah. Citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives the authority from the consent of the public expressed through the democratic process. I believe that completely, and I think that this 11th Circuit case vindicates that, and I’d like to see the Supreme Court vindicate it as well.
Kyle: My whole mission in life centers around open access, both in my professional, personal, everywhere. I think that this is a golden time to say we need broad, non‑discriminatory access to the law, continual. If we could decide this at the Supreme Court, we have now taken a huge step to making that law of the land to then allow open access to touch other areas beyond the law. I think it’s necessary for democracy for this case to come down in a certain direction, and that direction is open law.
Ed: OK, well we’ve reached the end of the road for our episode. A fascinating conversation about private access, private ownership of public law. Thank you, Kim Nayyer, Todd Melnick, Kyle Courtney for joining us today. If our listeners have questions or want to follow up with you, how can they reach you?
Kim: They can tweet me at @KimNayyer, or if you search Cornell’s website you’ll find me as well.
Ed: Kim, how do we spell your name on Twitter?
Kim: N‑A‑Y‑Y‑E‑R, two Ys. Kim Nayyer.
Todd: I’m at Fordham Law School, you can just go to the Fordham Law School website and look for my contact information, it’s all there.
Ed: That’s Todd Melnick.
Todd: Todd Melnick, yes.
Kyle: Kyle Courtney on Twitter, I use my middle initial on Twitter because there’s other Kyle Cournteys out there, so I’m @KyleKCourtney, and of course you can find me on the Harvard Library website as well.
Ed: Thank you to our listeners for tuning in. If you like what you heard, please rate and review us in Apple Podcasts, Google Podcasts, Spotify, or your favorite podcasting app.
Ed: I’m Ed Walters, until next time, thank you for listening.
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