Is Law a Matter of Public Record?

No copyright hereWe have no opinion on the legal viability of the claim, but apparently the State of Georgia has decided that its codified laws constitute a copyrightable work and that no one else should publish these statutes without permission. A lawsuit was filed against a Website by the State of Georgia, alleging copyright infringement, according to this archived page. The Website being challenged has faced at least one previous attempt by a state to enforce copyright. That case was dropped by the State of Oregon.

Although it may seem at first glance a bizarre controversy, there are some possibly legitimate reasons for states to monitor and control where their statutes are published. For example, if a Website publishes an out-of-date state code citizens who are interested in complying with (or defending themselves under) current laws may be confused by the rival sets of laws. A reasonable person, of course, should assume that only the state’s own authorized Website contains the most current and up-to-date copy of the statutes.

But in practice state government Websites are often hard to use and may be so packed with information on various topics that their search tools do not provide citizen consumers with adequate coverage of all information. A non-governmental Website may be able to publish the information in a more user-friendly format with less expense, thus providing a public service even if the site requires compensation.

In this latest test of copyright law, the State of Georgia declares its ownership of copyright prior to granting access to the Code of Georgia, so a reasonable person cannot claim to have received inadequate notice of copyright. But how enforceable is a state government’s claim of copyright under Federal law?

According to a document that was available on the Registrar of Copyright’s Website until March 2015, “As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials”. A refusal by the Federal government to grant a registration of copyright to a state means that the state government cannot sue for punitive damages. It can only seek to recover actual damages, and must prove them.

What economic harm comes from copying a state’s code of laws without permission? That would be an interesting legal argument, to be sure.

The public interest is best served by ensuring that the public has adequate access to a full and current copy of the laws of the state. What may be even more helpful, of course, would be an annotated version of the law that assists citizens in understanding why the laws are written the way they are and what resources are available to them. Such annotations would require extensive research and may be unfeasible without great expense.

And so the question becomes, should citizen consumers trust commercial sources of information about state laws? There are no legal protections against using outdated information from an unmaintained Website, for example.

The issue of states claiming copyright over their statutes is complicated by the fact that copyright itself is a product of Federal law, written directly into the constitution and guaranteed by the authority of the government of the United States. But if the Registrar of Copyrights refuses to grant registration (and all the rights associated with registration) to state governments (both domestic and foreign), then does that imply that the states do not have constitutionally guaranteed copyright?

The Georgia controversy goes back to 2013. Nor is this the first time that a state has attempted to enforce copyright against a Website. But what is particularly interesting about these attempts to enforce copyright protection for state codes is that it raises the specter of States Rights, which also haunts the debate over the legalization of marijuana for recreational use and the legalization of online gambling.

In all three situations various state governments have appointed laws to themselves that conflict with the laws of the Federal government. The last time States Rights was invoked as a national issue the country went to war, but on that occasion the central cause for the States Rights debate was where and how slavery should exist. Slavery in all forms is now illegal in the United States.