Georgia Can’t Hide Law Behind a Paywall

by the judge and anotations? As Justice Ginsburg indicated, why wouldn't we allow the official law to be hidden behind a paywall? In the majority opinion, Chief Justice John Roberts wrote that no one can own the law, joining me as intellectual property litigator Terence Frost, a partner at Captain Yuchen Rosenman, so Terry start by explaining what Georgia wanted to do. Georgia published the Law of the State of Georgia. They accepted didn't simply publish the language of the law.

It also published an annotation for each sexual law, which essentially was a helpful guide to understanding how that code section had been interpreted by other courts. Georgia copyrighted what was called the Official Code of George annotated because it included not just the loss but the anotation. A pro bono organization came along and bought a set of the entire Georgia Code annotated, scanned it page by page, and then start posting it online so that people would have

free access to the Official Code of Georgia anoitated. And Georgia didn't like that, so the State of Georgia filed suit for copyright infringement, again the pro bono organization, and that's how we got into court, the issue being mostly whether the annotations could be copyrighted. There was no doubt

that the law couldn't be copyrighted. The Supreme Court had already said on multiple occasions that the actual words of the law cannot be copyrighted, and so the question was, by adding these annotations to the law, could you protect the new work? The combination of the words of the statue plus the annotation, could you protect that under copyright law?

So one way of thinking about it is that they were arguing that as long as the Code of Georgia was out there without the annotations and not copy writable, people could access that. The problem is that most of the time these annotated codes are all that there is out in the public record for people to consult. And so the question really presented in part to the Court was could you sort of hide the law behind copyright by simply adding annotations to the statute. So Chief Justice

John Roberts wrote the majority opinion. What was his thinking, It's a fascinating coalition here. June, the Supreme Court vote at five to four ruling that the Georgia Annotated Code could not be copyrighted because the legislators in Georgia could not qualify as authors under the Copyright Act of ninety

and therefore could not take advantage of copyright registration. But one of happening things is the majority of five justices included Justice Roberts, Justice Course such Justice Kavanaugh, who traditionally do vote together, but also Justices Kagan and so Domern, who usually are not to be found on a Justice Robert's opinion, whereas in the minority descending from the bin was Justice Thomas and Justice Alito, along with Justice Ginsburg

and Justice Bryer. So a fascinating division of the Court on this issue that proves that not all cases are political at the Supreme Court? Can you figure out what made those justices line up the way they did? I was trying to think of what it would be. All I came up with was that the dissenting justices appeared to be the justices that are on the court the longest.

Clarence Thomas, believe that you are absolutely correct on that, June, I am not sure that that's the complete explanation for the particular lineup of justices and dissent I will say this, though, the two justices who traditionally have been most protective of copyright are Justice Ginsburg and Justice Brier, both of whom had substantial pre court experience with copyright law, and so it did not surprise me if that if anyone was going to be arguing that a copyright should apply here,

it would be Justice Ginsburg Justice Brier. I can't explain entirely Justice Thomas's point of view, but it seems he tends to be a pragmatist of times, and what concerned him was the fact that there are, in addition to Georgia, twenty two other states and the District of Columbia and two territories who published their laws in an annotated version, and he thought the this decision would be inflicting some sort of harm upon this large number of other states,

and as he expressed, it would come as a complete surprise to them and therefore with somehow unfair to all of the other states as well as Georgia, and that he didn't want to do that to them, as a little bit different of a dessent than what Justice Brian Justice Ginsburg, who really went more to the merits of the decision and took this very expensive view of what an author is and therefore why this would be copyrightable.

So what happens now in the twenty two states and d C and the two territories, They do not have to do anything, but they will be unable to sue for copyright infringement. If a public organization comes along similar to Public Resource or here and starts publishing the annotated codes of these other states in the District Columbia, those states and the District can do nothing. They will simply

have to allow it to happen. Was there a sort of populist own to the Chief's decision in that if you allowed Georgia to copyright this, you would have the economy version of the law of the Code, which everyone would get, and then a first class version which only

people who paid would get. There's certainly a populous tone to Chief Justice Roberts majority opinions, as the Eleventh Circuit of the Appeal Court that had reviewed this below had said, the laws are made by representatives of the people, and they cannot then put up a fence around those laws so that the people can't have access, because they act for and on behalf of the people, and therefore, by right these public laws should be of the people and

free to the people. Now, the Chief Justice did not go as far as the Eleventh Circuit in that respect, but he did say that the ultimate inquiry here should be whether or not the work is attributable in some way to a constructive authorship of the people, capital p on people. So he at least was willing to admit that that's a consideration here, although it was not the

exclusive reason for his decision. His decision really was expressed as being driven by prior cases with respect to judges being unable to copyright their decision, and then he said that the legislators should also be unable to copyright their work, but underlying it, I think there was a sense in the majority opinion that judges legislators all work for the people. They can't then claim authorship of what they do, because only the people can do that and should be freed

at the people capital p Thanks Terry. That's Terence Fross, a partner at Captain Uten Rosen Minton. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg the Deciding the bet to the end in the cont