Supreme Court to Determine Copyright Protection for Legal Annotations and Commentary

On June 24, 2019, the U.S. Supreme Court agreed to consider whether state and local governments, as well as legal publishers, can claim copyright to certain legal texts. The case appeals a decision from the U.S. Court of Appeal for the Eleventh Circuit which stripped copyright protection for annotations and commentaries on the Georgia state code. 

The case started when advocacy group, Public.Resource.Org, Inc., posted on its website full, unauthorized copies of the legal annotations to the Georgia code. While the text of the Georgia code itself is available online for all to freely copy, that is not true of the annotations.  Georgia has had a longstanding arrangement with LexisNexis giving the publisher exclusive rights to compile and sell the annotations to the Georgia code. Taking the position that the LexisNexis annotations were copyright protected, Georgia sued Public.Resource.Org. In its defense, the advocacy group argued that the annotations are government documents not protected by copyright and should be free for all to copy. 

Last November, the 11th Circuit sided with Public.Resource.Org and ruled that Georgia had no copyright ownership to annotations made to its official legal code. The 11th Circuit determined that the annotations are inherently uncopyrightable public domain materials. Georgia filed a petition for certiorari in March 2019 seeking to overturn the 11th Circuit decision.  

In April 2019, eight states submitted amicus briefs supporting Georgia (i.e., Arkansas, Alabama, Idaho, Kansas, Mississippi, South Carolina, South Dakota, and Tennessee). The states argue that without copyright protection, the annotations would become freely available and the compiling author’s annotations sales would fall. Without an economic incentive, private legal publishers would not create or distribute the annotations, and in consequence, the public would be deprived of a useful guide to legal research.

The states claim that the 11th Circuit analysis of the protectability of the annotations is wrong. Specifically, the states argue that the annotation of a code or case is not an exercise of popular sovereignty, but a comment on it.  It is the original work of authorship of the legal publishing company (LexisNexis in this case) and is not the authoritative interpretation of law. 

The Software & Information Industry Association, a trade organization for software and digital information companies, also backed Georgia in an amicus filing, arguing that the ruling will disincentivize investment in law related works of authorship. 

The case is Georgia et al. v. Public.Resource.Org, Inc., case number 18-1150, in the U.S. Supreme Court (2019).