Clinic Files SCOTUS Brief w/Caselaw Access Project, Arguing for Unburdened Access to Law

A white person holds a pile of papers labeled "The Supreme Court of California" over a large scanning machine.This week, the Cyberlaw Clinic filed an amicus brief (pdf) in the United States Supreme Court in the case, Georgia, et. al v. Public.Resource.Org Inc, No. 18-1150. The Clinic filed the brief on behalf of the Caselaw Access Project (CAP), a team of legal researchers, software developers, and law librarians based in the Harvard Law Library. The Clinic’s brief advocates for upholding the Eleventh Circuit’s holding in favor of the respondent, Public.Resource.Org (PRO), arguing for an easy, universal, and unrestricted access to the law. The case raises one major copyright concern: does the “government edicts doctrine” extend to—and therefore render uncopyrightable—materials that lack the force of, but are published alongside, and sometimes even inextricably mixed with, the law?

By way of background, PRO is a non-profit corporation dedicated to digitizing, publishing, and sharing government records, including legal materials like official codes and regulations. In 2013, PRO purchased all 186 printed volumes of the Official Code of Georgia Annotated (OCGA), the official codification of Georgia’s laws, and uploaded them to its website to be freely accessible to the public. In 2015, the state of Georgia sued PRO for copyright infringement, asserting that it holds the copyright in all third party-prepared annotations in OCGA, and won partial summary judgment in the District Court for the Northern District of Georgia. The Eleventh Circuit reversed upon appeal, finding that the annotations to the OCGA were “enmeshed with Georgia’s law” and therefore uncopyrightable. Georgia appealed to the Supreme Court for certiorari, which was granted in June 2019.

Amicus CAP is a non-profit initiative that aims to offer all American caselaw online for free. Founded in 2013, CAP has retrieved, dis-bound, and scanned roughly 40,000 volumes comprising about 40 million pages of official caselaw collected by the Harvard Law Library. In addition, CAP offers bulk downloads and application programming interfaces (APIs) that encourage innovative legal, historical, policy, and computational studies using these published court decisions.

Just as the OCGA is merged with annotations prepared by a third party, most American caselaw is published alongside, and sometimes even mixed with, additional elements. The copyright status of elements published alongside the law is unclear—The Supreme Court last addressed the copyrightability of law in two decisions in 1888—and CAP therefore undertook a grueling and expensive process to redact all potentially copyrightable elements from each of the 6.7 million decisions in its database. CAP’s arduous pre-emptive redaction process serves as a cautionary tale about the hardships that an unclear standard imposes on non-profit actors like PRO whose work benefits the public good. The Clinic’s brief urges the Supreme Court to issue a bright-line rule that no annotation embedded within an official state code may be copyrighted. It argues that because the law binds everyone, equal access to it is a matter of justice.

Fall 2019 Cyberlaw Clinic students Aaron Dunn and Bowen Zhang wrote this amicus brief with Clinical Instructor Kendra Albert and support from the Clinic’s Managing Director, Christopher Bavitz. The Clinic team worked with Adam Ziegler and Jack Cushman of the Caselaw Access Project to develop the arguments in the brief.

Photo credit: Brooks Kraft / Harvard Law School.


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