SCOTUS Rules No Copyright in Official Annotated State Code

We’re pleased to report that the United States Supreme Court has sided with and held that the Official Code of Georgia Annotated is ineligible for copyright protection. The Cyberlaw Clinic worked with the Caselaw Access Project team at the Harvard Library Innovation Lab on an amicus curiae brief (.pdf) advocating this very result. The brief highlighted the significant burden that would be placed on those creating tools to facilitate access to law if legal materials generated by or at the direction of state government officials were subject to copyright protection and the importance of a bright line holding that official government works are not copyrightable.

The reasoning of the majority opinion (written by Chief Justice John Roberts) tracks arguments that the Clinic made on behalf of CAP. The opinion notes the extraordinary implications of Georgia’s arguments with respect to a variety of materials relevant to the legislative and judicial process:

If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties. Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial. The less bold among us would have to think twice before using official legal works that illuminate the law we are all presumed to know and understand.

The Clinic team is excited to have filed the brief on CAP’s behalf that provides an illustration of the real world consequences that Chief Justice Roberts imagines.

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

Congratulations to our friend Carl Malamud and the team—and to CAP and other librarians and archivists who will be able to continue their great work with the benefit of this important decision.

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