Supreme Court hears Oral Argument re Copyright Status of Official State Code

On Monday, the US Supreme Court heard oral arguments in Georgia v. regarding the copyright status of the state’s official legal code including annotations written by LexisNexis.

From SCOTUSblog

The problem is that the published volumes in which [the Georgia] statutes appear include not only the laws themselves, but also a series of annotations that for the most part summarize judicial decisions that interpret the laws. The question for the justices is whether Georgia can enforce a copyright in those annotations, which as a practical matter would prevent third parties from copying the published volume that includes the non-copyrightable Georgia statutes.

From ars Technica

During Monday’s oral argument, some justices seemed skeptical of Georgia’s position. “Why would we allow the official law to be hidden behind a pay wall?” asked Justice Neil Gorsuch.

Georgia’s lawyer countered that the law wasn’t hidden behind a paywall—at least not the legally binding parts. LexisNexis offers a free version of Georgia’s code, sans annotations, on its website.

But that version isn’t the official code. LexisNexis’ terms of service explicitly warns users that it might be inaccurate. The company also prohibits users from scraping the site’s content. If you want to own the latest official version of the state code, you have to pay LexisNexis hundreds of dollars. And if you want to publish your own copy of Georgia’s official code, you’re out of luck.

From SCOTUSblog

As the argument progressed, though, other justices appeared more receptive to Georgia’s position. In particular, Justice Stephen Breyer seemed to take a steadily stronger view of the matter… Breyer commented to Citron [attorney for] that PRO’s problem is showing “[w]hat function does this particular set of words [namely, the annotations] play in the law?” For Breyer, “if we look at the precedent, … it’s hard for me to see that it plays much more of a … role than [the] annotations [found copyrightable previously].”

Justice Brett Kavanaugh also challenged Citron repeatedly on a variety of points. One set of comments emphasized the same distinction as Breyer’s, between the law and the annotations describing it. Kavanaugh pressed Citron to agree that it “would be a mistake” to treat the annotations as having any significance in the articulation of law.  As Kavanaugh put it, “if you cited the annotations as binding law, that would be wrong.”

A decision in the case is expected by the end of June.