Georgia’s Annotated Code Not Subject to Copyright Infringement, Court Says
In a unanimous ruling this month, a three-judge panel for the United States Court of Appeals for the 11th Circuit reversed a decision made in March of last year and Georgia’s official annotated state code is not copyrightable and belongs in the public domain. In 2017, an Atlanta federal judge had ruled that open law advocate Carl Malamud had violated copyright law by putting a free copy of the annotated state code on his website. In the ruling, the 11th Circuit panel said the annotations carry the weight of state authority, belong to the people of Georgia and cannot be copyrighted.
“The question is a close one—and important considerations of public policy are at stake on either side—but, at the end of the day, we conclude that the annotations in the OCGA [Official Code of Georgia Annotated] are sufficiently law-like so as to be properly regarded as a sovereign work,” U.S. Circuit Judge Stanley Marcus, appointed by former President Ronald Reagan, wrote in the judge’s opinion. “In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority. As a consequence, we conclude that the People are the ultimate authors of the annotations.”
“Law cannot be copyrighted because it belongs to the people; annotations can be if created by a private party,” according to the opinion. The annotations in Georgia’s state code are created by LexisNexis, however, but considered part of the official code. Marcus explained, unlike most states, “the annotated code is deemed Georgia’s official code and the unannotated, free version is not considered authoritative.”
“[T]he annotations in the OCGA, while not having the force of law, are part and parcel of the law,” Marcus wrote. “They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life.”
Back in July, the United States Court of Appeals for the D.C. Circuit vacated an injunction forcing Malamud to remove technical standards from private industry groups later included in the law.
In 2013, Malamud purchased Georgia’s entire annotated code, scanned it page by page, and uploaded the contents to his website Public.Resource.Org. The state filed a lawsuit for copyright infringement in 2015, requesting an injunction.
“The State of Georgia has no valid copyright in any portion of the OCGA because the OCGA is in the public domain,” Malamud argued. He was represented by Alston & Bird, the American Civil Liberties Union (ACLU) of Georgia and attorney David Halperin.
In March 2017, U.S. District Judge Richard Story of the Northern District of Georgia, appointed by former President Bill Clinton, granted the state summary judgment, making Malamud scrub the state code from his site. “I fought the law and the law won,” Malamud tweeted after the decision.
On Oct. 20, however, Malamud reposted the annotated state code and tweeted, “to the people of Georgia: This law is your law. This law is my law. From the Blue Ridge Mountains to the Savannah River. From Morehouse College to the Vidalia fields.