April 12, 2017

The State of Georgia wins its suit against Carl Malamud for publishing official annotations to the law of the land

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Way back in 2015, we covered the state of Georgia’s decision to sue Carl Malamud for illegally publishing the Official Code of Georgia Annotated (OCGA) through his website, public.resource.org. Now, two years later, a federal trial court in the Northern District of Georgia has ruled in favor of the state (in particular, its Code Revision Comittee, which oversees LexisNexis’s production and publication of the annotated code), in a decision by Judge Richard W. Story ordering Malamud to immediately remove the OCGA from circulation on his website.

This is, of course, ludicrous, and according to a report by Joe Mullin in ArsTechnica, Malamud will be appealing the decision as soon as possible.

The decision hinges on two key considerations: whether or not the annotations included in the OCGA are legally copyrightable, and, if they are, whether Malamud’s distribution of them constitutes fair use under that copyright.

Ultimately, Story ruled that the material in question was in fact copyrightable, and that Malamud’s reproduction falls outside the scope of fair use. The short version of his reasoning is that, though the OCGA is the only official code of the state of Georgia, the annotations themselves do not carry the force of law, and, therefore, are eligible for copyright (government documents can be copyrighted so long as they do not carry the force of law). Malamud’s claim of fair use was dismissed on the grounds that his website (which is free to access and funded entirely by grants and donations) is a commercial enterprise, and that the distribution of the annotations has negatively impacted LexisNexis’s ability to make money off the sale of the annotated code, which costs $395 for Georgia residents, and, according to Mullin, more than $1,200 for non-residents.

This is almost sane. But not totally sane. It implies that the state of Georgia’s responsibility to protect LexisNexis’s profits supersedes its responsibility to protect its citizens’ access to a document explaining their rights and responsibilities.

Story admits that the case is atypical, “because most official codes are not annotated and most annotated codes are not official.” What is unclear is why this strange convergence of circumstances wouldn’t affect Story’s consideration. Even if the commentary in the OCGA isn’t statutory, as we wrote back in 2015:

both LexisNexis and the State of Georgia, insist that it [the full, annotated text] is “essential” to any understanding of the law:

“The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory scheme.”

And, as reported by Masnick, the Georgia Department of Banking and Finance refers to this document as the primary reference text for those seeking information on Georgia statues.

Now, it’s important to remember that Story isn’t really the problem here. He gave an unenlightened and overly literal ruling in a case that will almost certainly be appealed to a higher court. The real villains here are the senators, lawyers, and representatives of the state of Georgia who have prioritized the profits of LexisNexis over the interests of their constituents. As Story points out, Georgia’s original agreement with the publisher “provides that the Commission, not its hired publisher, has ‘the ultimate right of editorial control…’ over all material contained in the O.C.G.A.” While LexisNexis might prefer not to have its state-mandated monopoly disrupted, the Commission is under no obligation to so vigorously litigate Malamud’s infringement. And while it might be technically, legally permissible to hold and enforce copyright over the official annotations, it is in no sense civically or ethically responsible to do so.

 

 

Simon Reichley is the Director of Operations and Rights Manager at Melville House.

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