Georgia ruling: end of the public-private partnership?

B. Brett Heavner of Finnegan explores the implications of the US Supreme Court’s Georgia v Public.Resource.Org ruling for US states and their legal codes.

In his dissent to the US Supreme Court’s Georgia v Public.Resource.Org decision in April, Justice Clarence Thomas cautioned that invalidating Georgia’s copyright in state code annotations will seriously “shock” the public-private legal publishing system used by about half of the states.

The central question of the case was whether the state of Georgia owns a copyright in the annotations of the Official Code of Georgia. To gain access to the annotations, researchers had to subscribe to a private legal publishing service licensed by the state of Georgia. Open Access advocacy group Public.Resource.org posted unauthorised copies of the annotations arguing that they were non-copyrightable law. Georgia sued Public.Resource.org for copyright infringement and the case found itself before the Supreme Court.

Many states have close relationships with private legal publishers, such as Lexis and Westlaw, providing them with an exclusive licence to create and distribute annotations and commentary on the state codes. Typically, the legal publisher’s exclusivity is in exchange for the states’ having strict oversight of the annotation/commentary content and the states’ owning the copyright in the content as a “work for hire”.