Who Owns The Copyright to the OCGA?

Bumped with an update from Senator McKoon below the fold.

In some universe, this might make sense: The Code Revision Commission (chaired by State Senator Josh McKoon) has sent a cease-and-desist letter to Carl Malamud, threatening to sue him for publishing the Official Code of Georgia Annotated, because: “The State of Georgia, acting through the Georgia Code Revision Commission, is the owner of a copyright in various aspects of the Official Code of Georgia Annotated. Under United States copyright law, the State of Georgia’s copyright has been in effect since the original date of creation of such official Code in 1983. All copyrightable aspects of the Official Code of Georgia Annotated are copyrighted under United States copyright law.” Full text here. (pdf) TechDirt has a take and lots of opinion here. Mr. Malamud has, of course, declined, and made some counter-arguments that appear to make sense to a non-lawyer like me. 

Why on earth would the State of Georgia assert a copyright in this instance? The law and the text of the law and judicial opinions are the property of the State (and by extension, the people) and unless somebody’s making money off this, what’s the point of trying to prevent people publishing stuff that the public owns?

UPDATE: I received the following from Senator McKoon.

“The State of Georgia owns the copyright to the non-statutory materials, such as case annotations, notes, etc., that are included in the Official Code of Georgia Annotated.  These aspects of the O.C.G.A. are not part of any statutory language.  To put it another way, no one is asserting that the actual text of any Georgia statute is copyrighted.

However, the non-statutory content (produced for the state as a work-for-hire by the enormous efforts of a private third party) is protected by the state’s copyright.  That copyright allows the state to enter into an arrangement with a private company to manage and publish the O.C.G.A.  The official publisher’s only compensation from the state for its enormous work each year is the exclusive distribution right which the state, as owner of the copyright, grants to that publisher.  This arrangement was set up to avoid the necessity of having to spend taxpayer funds to compensate the publisher. If the state were to fail to defend its copyright, the practical consequence would be the state would have to take on all of the effort to update maintain the O.C.G.A. as well as publication costs.  This would undoubtedly increase the cost to individual taxpayers for the state to shoulder this burden.  Furthermore, the state would likely lose the royalties it currently receives from the official publisher for sublicensing the O.C.G.A. to others. It would therefore be shirking our duty both under existing contracts as well as our fiduciary duty to taxpayers to get the most value for every tax dollar entrusted to us not to fully prosecute our copyright to the copyrightable aspects of the O.C.G.A.  That is why we transmitted a cease and desist letter and will take further action as required to protect the copyright in this matter.”

H/t: Creative Loafing

27 comments

  1. George Chidi says:

    There’s only one reason that holds any water at all — a concern that a third party might take liberties with the text while still calling it the OCGA. Failing to assert a copyright might be considered tacit government endorsement of the publication if someone comes after them for printing something that’s incorrect.

    It’s a weak case for copyright enforcement … but there it is.

    • Napoleon says:

      George, that would be a trademark issue, not a copyright issue.

      On another note, the issue in McKoon’s letter is not the text of the law itself, which McKoon states is not copyrighted, but the scanning of the actual books of code (https://law.resource.org/pub/us/code/ga/georgia.scan.2012/gov.law.ga.code.01.2007.pdf), which clearly state that they are copyrighted:

      Copyright 1926 through 1930
      © 1982, 1990, 2007
      BY
      The State of Georgia
      All rights reserved.
      ISBN 1-4224-3824-4
      4181511

      Organizations like Westlaw and LN do not own the code. The charges are for the costs of maintaining the systems, exclusive services provided like search functions, printing (for the hard copies of the law that are at issue here), and other aspects of production.

      There are also parts of the scanned books that are not part of the actual law. The books provide a history of the law, include how the books are indexed and organized with a 7 page user guide. The state may also be asserting a copyright on the annotations.

      The fact is while the U.S. government is prohibited from copyrighting its works, Title 17 does not put that prohibition on the states. Some states have tried to assert copyright on their laws themselves, which I think is over the top for the same reasons already given, but here it looks like the state is only asserting copyright protection on a manner of the publication and the original work that is part of it, not on the laws themselves.

  2. George Chidi says:

    Also worth asking … I wonder if someone from Lexis/Nexus or Westlaw trundled over to Sen. McKoon’s office with a thick envelope and a whispered request last week.

    • Really? Can we at least hear what his reasons for doing this are before we start accusing him of criminal activity? C’mon George, you’re better than that.

      • George Chidi says:

        McKoon is one of the good guys. I didn’t quite mean to imply nefariousness … only the enforcement of a contract, which is kind of what happened.

    • Stefan says:

      I doubt Lexis and Westlaw pay license fees for the OCGA, so they’d likewise be less than thrilled. Perhaps this is an attempt to keep some of our sillier laws off the internet (a la Oregon’s former policy)?

      “Hey Mortimer, want to move our huge multinational company to Georgia?”
      “I don’t know, Randolph, I heard they have a vituperative immigration law that will handcuff our ability to find low wage workers, and an ineffective process for funding transportation initiatives, which will prevent us from recruiting workers except from our immediate locale.”
      “If that were true, Mortimer, it’d be on the internet.”

      • Jackster says:

        Sounds to me like the publisher realized they entered into a weak contract with no real recourse, and threatened to revoke their services if the committee didn’t do something about it.

        So, given that L/N is the “publisher” in question, they did $515,312.55 worth of business with the state in 2012.

        I’m glad McKoon is sticking up for his vendors, but I doubt he’s willing to spend the state’s dollars to defend it. It would be much cheaper to get a new publisher.

  3. pettifogger says:

    Lexis is the official provider, as I understand it, so I think both they and Georgia have an interest, as well as anyone else (westlaw) who publishes and sells the code. Considering GA works closely with Lexis to get the revisions to the code correct, I think the concern here is at least somewhat legitimate.

    • Jackster says:

      It seems that basically, L/N will post updates as they happen, so that it always has to most current version.

      These other sites are static. L/N would like to keep being the best and most up to date, and Sen. McKoon would like to keep having someone do the updating.

      Is it illegal to give the state of georgia something free or highly discounted, for the hope of other services? It’s illegal in healthcare.

    • Napoleon says:

      Dumb? Why is it dumb? LN goes through the expense of putting the book together and someone comes along and scans it and posts it for free? Fine. Let Carl Malamud Publishing take on the obligation of publishing the hard cover editions. I guaruntee you they will take a different view of the situation. CMP wanted the layout and text found in LN’s book, not just the text of the code. I can go to a dozen+ websites to get the OCGA, most of which, like the CMP website, are free, including the LN linked page on the legislature’s website.

      Was CMP’s marketing gimick to scan the actual hard volumes to make it different than the others and drive traffic to it’s website rather than the others? Not sitting here with a copy of their business plan all I can do is speculate. However CMP is making money somewhere and it’s off of LN’s work. This is not an attempt to “hide” the code, but to prevent one company from profitting from another company’s work. That’s exactly what the copyright law is for.

  4. SingingLawyer says:

    Unless you are an attorney familiar with copyright laws, PLEASE stop commenting on this. You are just perpetuating misinformation. I’m not sure why this even merited a posting on this blog. As noted in Senator McKoon’s response, the state is not asserting a copyright in the text of the statutes themselves, which others may feely publish. What they are upset about is that this guy literally took a copyrighted book, scanned it, and published it on his own website. This is clear copyright infringement–just as if Mike took his copy of Fifty Shades of Grey from his nightstand, scanned it, and put it on the internet for others to read for free. You best believe the publisher would come after him for that.

    What makes the published OCGA copyrightable is that it has not just the statutes but also annotations, which are a categorized compilation of all cases citing and interpreting the particular statute, along with a short blurb called a “headnote” summarizing what the case says. These annotations are organized by topic. It takes A LOT of work for Lexis to do this, and is an invaluable tool for lawyers when doing legal research–you can easily find cases interpreting the particular statute you are researching. The OCGA is available in book form (which is what Malamud copied) and online–the online version is updated frequently as new cases are reported and the books are supplemented annually. As the copyright licensee, Lexis can charge its subscribers a fee to access this work. I’m certain that in the license agreement b/w Lexis and Georgia, that the state has the duty to enforce its copyright against third parties. If it did not, it would (1) weaken the state’s intellectual property rights in the work; and (2) render all of Lexis’s hard work commercially worthless, because why would someone pay for something they can get for free?

    So let’s let the parties sort this out between their counsel and please stop insinuating that there is something nefarious going on here.

    • Hey, SingingLawyer -we generally encourage people’s comments (most especially when they don’t know what they’re talking about) because otherwise nobody’s ever gonna learn nothin’! That attitude tends to bring out experts (such as you appear to be) to enlighten the rest of us rubes. I posted this because it’s directly relevant to Georgia policy and politics, and because until I heard from Sen. McKoon, I had no idea that Georgia awarded what amounts to a franchise for publication of the annotated version of the OCGA, and I’ll bet 99% of Georgia didn’t either. (Now it’s 99% minus 6. You’re welcome.)
      And to imply that I would ever scan and publish Fifty Shades of Grey is scandalous! I don’t even have a nightstand!
      -Welcome aboard.

  5. Scott65 says:

    Then shouldn’t the private provider of the annotated version sue? Why is it Georgia’s problem to have to spend the money to defend a private company’s work?

    • Napoleon says:

      Because Georgia has retained the copyright as part of whatever deal it has to allow LN the publication rights. (See my post above on how the copyright is worded in the books).

      As for being an expert, no I am not an IP lawyer, but I am a lawyer. Yes, I have had a few clients where there were IP issues among others in the law suits I represented them in so I have a working knowledge of copyright and trademark law. I personally currently hold two registered copyrights for my work.

  6. SingingLawyer says:

    Because Georgia is the copyright owner. I don’t know for sure, but in its agreement with Lexis the state probably has the duty to enforce the copyright against third-party infringement. And any smart IP holder should enforce their rights because failure to do so can render your IP worthless. If the state just lets anyone reproduce and distribute Lexis’s work, they are not going to continue to provide the service to us. Typically a licensee can also sue an infringer, so it may be the case that Lexis could also sue, but I don’t know what their agreement with Georgia is. In any event, this is just a C&D letter, I doubt there will be a lawsuit.

  7. @JeffPfeifer says:

    As someone who works at LexisNexis and is directly involved with the Georgia statutory content referenced in the post, I wanted to share some facts with you and your readers so there is an accurate understanding of the situation in question. Below are some key points on the matter:

    1. Copyright is held by Georgia and not by LexisNexis. This is also true for other states in which LexisNexis serves as the official publisher of the State Code. LexisNexis performs defined editorial, manufacturing and distribution responsibilities under openly bid, publicly awarded publishing contracts granted by the State.

    2. Georgia, and other states with Official Publisher contracts, have made public versions of the codes available via public access websites that are often constructed and maintained by LexisNexis at no cost to the state or its citizens.

    3. The contractual relationship between LexisNexis and each State is an agreement where the State has sourced editorial and other operational support from LexisNexis to produce the code in print.

    4. LexisNexis does not get compensated for the significant editorial and staff resources it devotes to the Official Codes each year. Instead we are granted an exclusive right to sell the Official Code in print and online on behalf of the State. This is a cost-effective arrangement that saves the State of Georgia from having to maintain a dedicated editorial staff to perform the highly specialized functions required to produce a quality code product.

    5. As several individuals have noted, our understanding is that only statutory language passed by a legislature constitutes “the law”. Research aids and enhancements such as case notes are created by LexisNexis’ specialized staff to aid legal practitioners, but LexisNexis does not claim to be writing the law or asserting copyright over the law. The State of Georgia does, however, claim that these items are protected by copyright.

    LexisNexis fully supports the need for free, open citizen access to the laws of each state. As such, we have worked closely with the Georgia Code Revision Commission and other State leaders to develop freely accessible websites for many of the state codes that we produce. That said, LexisNexis incurs significant cost to produce each State code product to the specifications of each State. We are compensated only through our ability to sell the code on behalf of the State.

    LexisNexis is proud to do this work and have been an important Code editorial resource to many states for over 100 years. We look forward to performing important editorial work for our State partners in the future.

    Jeff Pfeifer
    Vice President, Primary Law
    LexisNexis

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