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The Courts

Georgia Loses Legal Code Copyright Clash At Supreme Court (bloomberglaw.com) 158

schwit1 writes: Georgia lost a close U.S. Supreme Court case over the state's ability to copyright its annotated legal code, in a ruling that dissenting justices said would shock states with similar arrangements. Copyright protection doesn't extend to the annotations in the state's official annotated code, Chief Justice John Roberts wrote for a 5-4 majority on Monday that crossed ideological lines. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined Roberts. The state's lawyer warned at the oral argument that a ruling against it would "blow up" not only Georgia's copyright regime but similar ones in about a third of the states with similar setups. Indeed, the ruling "will likely come as a shock to the 25 other jurisdictions -- 22 States, 2 Territories, and the District of Columbia -- that rely on arrangements similar to Georgia's to produce annotated codes," Justice Clarence Thomas wrote in a dissent joined by Justice Samuel Alito and partially by Justice Stephen Breyer. Justice Ruth Bader Ginsburg wrote her own dissent, joined by Breyer. Further reading: Supreme Court Says Georgia's 'Official Code' Is Public Domain -- Including Annotations.
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Georgia Loses Legal Code Copyright Clash At Supreme Court

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  • by jfdavis668 ( 1414919 ) on Monday April 27, 2020 @02:30PM (#59997664)
    I can see hiring someone to host the code on a web site and managing updates, but no matter what they add, that is being paid for by the state. Therefore is owned by the people of that state. Not some legal firm.
    • by Nidi62 ( 1525137 ) on Monday April 27, 2020 @02:40PM (#59997710)

      Therefore is owned by the people of that state. Not some legal firm.

      The state government contracted out with an exclusive agreement to a private sector firm for publishing rights, but the state maintained copyright. What swayed the SC was that the annotations were written primarily by state legislators and staffers and paid for by state funds, leaving it squarely in the public domain.

      What's interesting is the split for the SC on this decision. Sotomayor, Kagan, Gorsuch, Roberts, and Kavanaugh on the majority side, with RBG, Thomas, Alito, and Breyer on the dissenting side. Not the grouping you usually see. I'm not entirely sure why the dissenters did so, since this seems to be a "correct" ruling with no clear ideological backing/agenda behind it.

      • by cpt kangarooski ( 3773 ) on Monday April 27, 2020 @02:48PM (#59997746) Homepage

        Ginsburg at least is a copyright maximalist. Her daughter is just as bad. Breyer I'm surprised to see in the minority.

      • That is perhaps the strangest split I've seen with the current SC.

        • by lgw ( 121541 ) on Monday April 27, 2020 @02:59PM (#59997794) Journal

          It's nice to think that not everything is divided along the lines of the personal politics of the justices. At least here we have a different set of strong personal preferences to rule according to.

          • It would be nicer if law weren't decided by personal preferences.

            • by Merk42 ( 1906718 )
              How should they be decided?
                • SC represents the will of the people. And people are strange.

                  • by sg_oneill ( 159032 ) on Tuesday April 28, 2020 @02:39AM (#59999418)

                    SC represents the will of the people. And people are strange.

                    It doesn't and it shouldn't. The whole reason for the separation of government and the judiciary is that Judges are *supposed* to be creatures of facts and logic, not popular will. The separation exists to stop mob politics from enacting unjust laws or engaging in unjust prosecutions.

                    Unfortunately the US, uniquely to the world, has a concept of "republican" and "democrat" judges. In most other countries , judges endorsing political parties would be cause for anti-corruption police to be kicking in doors. But the US has been hopelessly and possibly irreversibly corrupted by money and a governance system that has been captured by wealthy elites and partisan party hacks. Corruption is so integrated its become protected by suspiciously convenient and frankly illogical interpretations of the constitution that deem money to be speech and organizations to be people.

                    And its not getting better. People elected the current government to "drain the swamp", boy did that turn out to be a con job.

                    • by SharpFang ( 651121 ) on Tuesday April 28, 2020 @05:44AM (#59999684) Homepage Journal

                      Well, in this ruling, Kavanaugh and Gorsuch, both nominated by Trump, ruled pro-people and anti-swamp. Keeping the legal codex behind a paywall and profiting from people trying to stay informed about law is just a step above keeping laws secret from the people or making them up on the spot.

                      The SCOTUS made it pretty clear in that ruling. There's nothing wrong with private entities releasing versions of the legal code with added annotations and having that copyrighted for the creative contributions. But this is the main, official, primary source version. There is no "Georgia unannotated legal code". This is THE code, and any form of restricting access to it goes massively against public interest. You can't have a lawful society if the society is barred from learning the letter of law in any way.

                • Civilizations have tried that before. It tends to get pretty ugly for the minority.
                • The will of the people.

                  That's what the legislature is for. The court is to interpret law, regardless of the popular opinion.

              • by Zak3056 ( 69287 )

                How should they be decided?

                How about the actual text of the law. We can add "legislative intent" if we have a good enough record to prevent absurdities like comma placement inverting the actual intent of the bill, but this should be minimized.

                We have a legislature to make laws... The courts (and especially not the Supreme Court) are not supposed to be super legislatures, but that's where we stand today.

                • Congress makes laws, the Executive carries out the laws, and the Supreme Court interprets the laws

            • by lgw ( 121541 )

              Sadly, deciding things according to the text of the Constitution is rather unfashionable in some circles. It's an imperfect world.

              • by HiThere ( 15173 )

                To be fair, a government that actually respected the US Constitution would not work. It has needed several amendments that were not made, but were instead fudged. The interstate commerce clause is only one of several examples.

        • That is perhaps the strangest split I've seen with the current SC.

          Yes, and Thomas is normally a personal-rights man. How can he justify having a population abide by a legal code they have to buy access to?

          • Yes, and Thomas is normally a personal-rights man.

            With all that's going on in the world, I needed a good laugh. Thanks.

          • Suppose you write a book about copyright law. You spend a few years researching, carefully citing all kinds of court cases, quotes from the legistlators who sponsored the law etc. You write the best, most informative book about copyright law that has ever been written. Yale law school wants to use your book as the textbook for an advanced class. Can you copyright your work?

            That's what this case is about. The annotations are NOT law.
            They are some people's thoughts about the law, talking about cases in whi

            • A product of the government, created as part of government operations by a government employee or by someone acting on behalf of the government, is by law public domain. Georgia (et al.) was trying to have its cake, and eat it, too.

              • Legally, what is created BY the FEDERAL government doesn't have copyright. They can and often do get companies to create things for which the company maintains copyright. For example the software of the F-35 is not public domain, because it wasn't created BY the federal government.

                For another example, they can and do have programs to create various types of training that the government seems to be be needed. To get people to create curriculum that wouldn't normally be profitable in the private market, the

            • But this particular set of annotations has official status in deciding cases, so logically it's part of the code as interpreted by courts. Would you install and trust an operating system as it was originally released years ago, lacking all its updates to current working state?

              • > But this particular set of annotations has official status in deciding cases

                Citation?

                No doubt they are useful - so is Black's law dictionary and a lot of other privately-produced law books.

                • by micheas ( 231635 )

                  What the annotations show is how the courts have interpreted the law. You really can't find out the law without knowing the annotations.

                  For example, the law in California says a person's name cannot be placed on the ballot as a candidate for another term who had served:

                  • 12 or more of the previous 17 years as a senator from California.
                  • 6 or more of the previous 11 years as a representative from California.

                  However U.S Term Limits, Inc. v. Thornton The Supreme Court of The United States ruled that the law is in

                  • You can easily give me the chapter and section where those words are found, since you have the annotated code handy, right?

                  • "Words like "normal" and "usual" can have had their meaning litigated over dozens or hundreds of cases"

                    Thousands, even. And *one* of those cases might be mentioned in an annotation to whatever code section you're looking at, but most likely none are. Most such cases which set precedent are readily available via Google, however, if you let your Lexis subscription expire. Yes, sometimes an annotation points to an interesting case, but then so does friggin Wikipedia, which is likely to mention the same case

      • Not the only recent case with an interesting split. In the recent decision of Ramos v. Louisiana https://en.wikipedia.org/wiki/Ramos_v._Louisiana [wikipedia.org] which essentially requires unanimous jury verdicts to convict for most crimes at a state level, the dissent was Roberts, Alito and Kagan. Most of the Justices are not simple ideologues and have complicated, and often nuanced legal approaches.
        • by Nidi62 ( 1525137 ) on Monday April 27, 2020 @03:16PM (#59997884)

          Not the only recent case with an interesting split. In the recent decision of Ramos v. Louisiana https://en.wikipedia.org/wiki/Ramos_v._Louisiana [wikipedia.org] which essentially requires unanimous jury verdicts to convict for most crimes at a state level, the dissent was Roberts, Alito and Kagan. Most of the Justices are not simple ideologues and have complicated, and often nuanced legal approaches.

          Yeah, I've noticed it's not always about the politics behind it, but there might be something technical or procedural that drives a particular justice's decision. Like it might give too much power to one group, or may weaken the power of the court in other types of cases, etc. But as the partisanship of the case increases, the more likely it is for the decision to be along party lines (with Roberts as often as not the deciding factor). That's partly why I think, for the good of the country, while some ideologues are inevitable just given how justices are nominated and confirmed, it's important to have a couple moderates on the bench as well.

          • +1 Insightful (sorry, no mod points at present).
          • It's about the politics behind it where there are politics behind it. Unanimous juries and copyrighted laws aren't political sacred cows for either side. We won't see 'crazy' splits like this in Bostock, Little Sisters, or Harris Funeral Homes.
    • First, they can charge hundreds of dollars to read the annotations.

      Second, there's all kinds of nasty legal tricks you can do to cheat folks out of money when you know the law and they don't. It increases the barrier to entry for our legal system and benefits the wealthy who can afford to pay to access the law.

      This is yet another power grab by the top 1%.
    • by jmccue ( 834797 )

      I can see one area were GA has a point. I can put their laws up on a WEB site with a great search function. But I can either change laws that I do not like. Or I can say "Too much cost/work, I will just stop applying changes".

      So now people could be looking at the wrong/old laws, causing them harm. This can probably be fixed by:

      1. The State maintains and keeps a free, easy to use, easy to access site up to date.

      2. And/Or allow people to sue the maintainers of the sites (including state maintained sites)

      • by dryeo ( 100693 )

        In my country, even the official government sites that list the laws have disclaimers about not necessarily being accurate, which makes sense as the law might have just been changed and mistakes happen.

        • Around here, new laws don't go into effect immediately but at a later, specified date. That gives the people running the official government sites the time to add the new laws.

          • by dryeo ( 100693 )

            it varies here, the emergency laws recently passed went into affect as soon as given royal assent (automatic but still needs a signature), other times there may be a date when they take affect or signing is delayed. Criminal law usually does have a date it goes into affect whereas funding laws might be in affect as soon as signed.
            There's still a chance of an error, especially as so many laws amend previous laws. I believe there is a gazette or such which is considered the official published law. There's als

    • people are more likely to take the deal vs an long and high priced trail + with the chance of hardtime VS an deal that may be in a easy lockup.

  • by gavron ( 1300111 ) on Monday April 27, 2020 @02:35PM (#59997684)

    Georgia and the other states that use copyright to prevent redistribution of their statutes (plus annotations, precedents, references) prevent THEIR OWN RESIDENTS from being fully cognizant of the law. They then use that law against those same residents.

    The EFF and PRO did a great job getting the copyright out of the law. If we're subject to it... we should be able to read it, copy it, share it, discuss it, and in some cases -- if we think it's wrong -- fight it.

    Good job to winning this stage of the fight... against "our elected officials" trying to represent a concept, and not our wants/needs.

    E

    • by sjames ( 1099 )

      I would argue that when the state restricts dissemination of the law, ignorance is a perfectly valid (ethically and morally) defense, If the people don't own it in it's entirety, it's not a valid law.

    • by Darinbob ( 1142669 ) on Monday April 27, 2020 @03:37PM (#59997960)

      I don't think this was really Georgia's intent, and I'm not defending them on this either. I think what we have is that they outsourced the publishing to a third party rather than do this themselves. Third parties don't do this out of the goodness of their hearts, and Georgia isn't paying them to do this either. They need to make sure there's a market for the books before they print them so that they're not left with a few truck loads of books that no one wants because some web site has put it all up for free. Another case where the free market is probably not the best solution to a problem.

    • by msauve ( 701917 ) on Monday April 27, 2020 @03:44PM (#59997994)
      Yep. Next up: stuff like building and electrical codes which are copyrighted/sold by private organizations, but incorporated into law by reference.
    • by Solandri ( 704621 ) on Monday April 27, 2020 @05:25PM (#59998374)
      The law itself was not at issue. Anyone can read the law for free. It was the annotations (basically links to other similar cases) of challenges to those laws which was at issue. Kind of a big deal since our country uses case law [wikipedia.org] - the exact interpretation of a law depends on how courts have ruled on it.

      This ruling probably won't have the effect you're thinking it will. These annotated court decisions will not suddenly become public domain, free for all to see and use. Nothing requires the state to make these annotations. So the Georgia government will probably simply stop making them, because without a copyright, they are no longer a revenue source. Instead, private companies will step in and sell the annotated copies on their own, like LexisNexis does. The free public domain text of court decisions you'll get from the state will be unannotated with no cross-references.

      The reason the state made the annotations was to standardize them, so everyone would have access to them and all lawyers (who bought acopy) were playing on a level playing field. If the state stops providing an "official" set of annotations and private companies start to make them instead, then the rich will have access to a better resource than the poor because they'll be able to buy annotations from a company which does a more thorough job making the annotations but charge more for it.

      The obvious work-around is for the state to continue making the annotations, chalking it up as a cost of governing for the greater good and simply eating the cost. However, this ruling does not require states to do that. So I expect a lot of states will just do whatever costs them less, rather than do what's better for The People. That's basically what this decision amounts to - whether these annotations are paid for by the lawyers who need to use them to argue court cases, or paid for by The People via general tax revenue. With this ruling, either the lawyers get a "free ride" (the people pay for their annotations), or the level playing field of state-provided annotations is gone.
  • Every law that was ever codified is paid for by taxes, i.e. everyone who finances their very existence and gives them work. Even in dictatorship, how much more in democracies. How the hell do you think you could justify copyrighting that? Talk about not understanding who you work for!

  • At least as far back as Hammurabi, humanity realized that people ought to be able to know the law. One could argue that's practically impossible today with just how damned much we have of it, but why the hell anyone should be able to charge any kind of fee to access the law is beyond absurd. Also, shame on the justices that voted against this. I don't care if it does come as a shock to 25 other jurisdictions. They obviously need it.
    • The laws in the this Georgia case were indeed public domain. It was only the annotations that were copyrighted by the state, and the annotations don't care that much legel weight and more about what were the legislators thinking or intending.

      • by HiThere ( 15173 )

        Don't be to certain about that. One post above listed an annotation that referred to decisions of the Georgia Supreme Court which made many portions of a law unenforceable.

  • Good. (Score:5, Insightful)

    by Gravis Zero ( 934156 ) on Monday April 27, 2020 @02:43PM (#59997726)

    The state's lawyer warned at the oral argument that a ruling against it would "blow up" not only Georgia's copyright regime but similar ones in about a third of the states with similar setups.

    Good, they needed to be blown up.

  • by Shotgun ( 30919 ) on Monday April 27, 2020 @02:54PM (#59997768)

    You can call it whatever you want, but if you don't follow these "annotations" you are breaking the laws and the state can come take your stuff. The people shall not be ruled by secret laws.

  • Patent a law, it's better than copyright.

    For example, patent a law that forbids stealing cars. Then, when you steal a car if they try to charge you just put on a Soviet accent and say "No! I charge YOU".

    • by EvilSS ( 557649 )

      Patent a law, it's better than copyright.

      For example, patent a law that forbids stealing cars. Then, when you steal a car if they try to charge you just put on a Soviet accent and say "No! I charge YOU".

      Hrm, wouldn't that mean if I don't steal a car, I run afoul of your patent?

    • And like patents, all laws should expire. If legislator want them renewed, they should specifically have to vote to do so. There is no reason some arcane law that was put on the books in 1928 should still be a valid law in 2020.

  • by AK Marc ( 707885 ) on Monday April 27, 2020 @03:57PM (#59998060)
    All "regulations" should be considered "work for hire" from the government agency involved, and all laws, regulations, and case law should be offered for free to everyone. If ignorance of the law is no excuse, I shouldn't be required to abide by the NEC if I re-wire my house, while the NEC is held behind a paywall.
  • FTA: "... the annotations, which includes things like commentaries, case notations, and editor’s notes, don’t have the force of law".

    If everybody involved agrees that the annotations are tremendously advantageous in preparing, defending, and prosecuting cases, (and it seems they do), then said annotations at least have a force that's equivalent to that of the law. By the mere fact of providing explanations and interpretations of the law that even judges refer to when making decisions, (not to me

  • If I'm not allowed to READ the law then I don't have to abide by the law. So FUCK off Georgia!

A right is not what someone gives you; it's what no one can take from you. -- Ramsey Clark

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