Document Type

Court Brief

Publication Date

10-16-2019

Abstract

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific methods and their resulting official publications serve a number of important functions that are intrinsic to the underlying purpose of supporting democracy and of fair notice of the law. Official publications of the law assure the reader of the reliability and currency of the text, as well as its acceptance for use in other parts of the legal system, such as for citation before a court. Access to official publications is also critical for conducting and supporting legal scholarship, teaching legal research, preserving state legal materials, and providing equal and equitable access to legal information. A critical feature that enables those uses is that the government has identified the publication as holding special weight as an official, authoritative source.

The major point of this brief is that when a state gives official status to a publication containing binding legal pronouncements, the contents of the whole of that publication must be freely and fully accessible by the public. Assertion of copyright over even portions of the publication effectively renders access and use of the core statutory text meaningless. In addition to the logistical difficulties of disentangling binding edicts of law from ancillary materials published with it, if the publication must be disassembled into its component parts for reuse-annotations protected and filtered out, while the statutory text may be copied - the remaining pieces are no longer the “official” publication and unusable for their intended purpose. A state should not be allowed to assert the broad and powerful coercive rights granted by copyright over an official publication of law by interweaving clearly uncopyrightable edicts of law with otherwise copyrightable ancillary materials, such as annotations. Granting copyright protection over even portions of the OCGA would harm law librarians and by extension the public, while granting a windfall to publishers and states who should need no copyright incentive to fulfill their constitutional obligation to publish official copies of their laws. Accordingly, this Court should affirm the decision of the 11th Circuit.

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