I Fought (for) the Law; Who Wins?

When I started law school, I had only the vaguest idea of what lawyers did. I figured it had something to do with arguing in front of juries and judges, writing legal briefs and contracts. That’s what I expected to learn in law school. I was in for something of a surprise.34In my defense, I have no lawyers in my family, at all. I’m the very first. So, there was nobody to tell me otherwise. And, like many law students, I was in law school because I needed some way of making more money than what an itinerant college instructor made, even if he supplemented his income by delivering pizzas.
One of the first classes I took was “Legal Research and Writing.” I assumed it would be about 90% writing and 10% research. This was because I thought “research” basically consisted of “looking stuff up.” Anyone could look up the law, I thought, but lawyers are just really good at it. I imagined the aisles and aisles of books in the law library consisted of reams and reams of “laws.” You just had to find the right one. Sure, I had heard of “cases,” because I had heard of things like Plessy v. Ferguson and Marbury v. Madison. I knew that somehow these “cases” helped determine the law, but surely either they were rare or they were codified somehow into something you could look up.

These "reporters" collect "published" judicial opinions in roughly chronological order. Photo by "Coolcaesar".

These “reporters” collect “published” judicial opinions in roughly chronological order. Not very handy for research, in the “old days.” Photo by “Coolcaesar”.

Oh, my sweet Lord, was I mistaken. The “law” wasn’t something you “looked up” at all. It was something that you, the lawyer, distilled from three primary sources: the “cases” (more properly called decisions or legal opinions, issued by courts), statutes (things passed by federal and state legislatures) and regulations (rules promulgated by federal and state agencies). Statutes appeared to have been written people who actively hated the English language and were the enemies of comprehension. Legal opinions were better, but they were long, often tedious, complex and arcane. Since they were written by thousands of different judges over, say, the last 150 years, they reflected a wide variety of styles, some easier to understand than others. There were usually several that might apply to the legal question you were researching. For each legal opinion, you had to understand the underlying facts, distill the “holding,” i.e., the actual decision the court made, and separate out the “dicta,” i.e., everything else the court wrote. Oh, and learning when a court’s opinion is actually binding (usually not!) or just “persuasive” on the court you’re before. And, oh, sometimes legal opinion would get “overruled,” and it wasn’t always easy to catch those.
In the old days, researching legal opinions was really difficult. Statutes, at least, were usually organized in some fashion (although often in a manner that made sense in 1865). Legal opinions weren’t organized at all. The courts just issued them, publishers bound them up in books, usually in chronological order, which is not a helpful order at all. Nowadays, we can use databases to search more precisely for relevant legal opinions, but in the past, lawyers resorted to various third-party sources that sought to organize legal opinions in a way that made some sense to lawyers. They would read published opinions, summarize their holding or holdings, and slot those holdings into the right categories. Hopefully. This was a tedious process, consisting of a lot of walking around the law library, having several case books opened to various pages, and lots and lots of photocopying. On the whole, it worked reasonably well, but you were always at the mercy of how well the third-party service understood the opinion and how sensibly they categorized the holding.

It’s Handy! Annotating the Law

One source of this information was in “annotated” codes of statutes. A “code” is a way of organizing statutes, really. Statutes, like legal opinions, are passed willy-nilly, in no particular order, but there is a tradition, at least, of organizing the statutes. The “annotated” codes go one step further. They let you know about any legal opinions have dealt with the statute you’re researching. That’s really handy because most statutes have some crucial ambiguities, and the courts are often called upon to work those ambiguities out. Also, there are some lawyers, and some judges, who don’t really trust statutes as legal authorities, unless there’s a legal opinion.35They weren’t crazy to think so, either. I can think of several statutes that have been interpreted by the courts in a way that you wouldn’t predict from the plain language of the statute. You might think a statute clearly says one thing, but you’d better make sure the courts agree with your interpretation.
An example of such an annotation may be found here. This is from the Official Code of Georgia Annotated, or “OCGA.” There are four statutes here: §§ 1–1–6, 1–1–7, 1–1–8 and 1–1–9. Sections 1–1–7 and 1–1–9 both have “Judicial Decisions” after them. Those are the annotations. The ones under § 1–1–7 just identifies some legal opinion that cite that statute. But the ones under § 1–1–9 do rather more than that: they summarize the holdings of some of the decisions and make some rudimentary attempt to organize them. Handy, though you will still have to look up the decisions to make sure they actually hold what they’re said to hold. (Nowadays, you’d still probably could do better with an online legal database.)
Georgia is unusual. Most states leave the annotated versions of their codes to third-party vendors. But Georgia publishes its own annotated code, though it outsources the difficult work of reviewing legal opinions, summarizing their holdings and coming up with categorical descriptors to a third party, Michie36Which is now owned by Lexis.. Georgia makes an un-annotated version freely available online (though it confusingly still calls it the OCGA, when it should just be the OCG), complete with search feature. The annotated version, however, costs a bit of money.37It’s just $378 for 48 volumes! A bargain compared to most legal resources.

Caught Between Over-Aggressive and Over-Principled

I don’t know how much money Georgia makes from selling copies of the OCGA, but feels compelled to defend its turf. A few weeks ago, it sued Public.Resource.Org, Inc.38I’m linking to a Wikipedia article, and not to its official website, because the official cite was down at the time I was writing this., a non-profit organization dedicated to publishing laws that are not otherwise freely available. While mostly this has meant making federal legal opinions freely available online, it has previously gotten in trouble by publishing private industry codes (such as fire codes and buildings codes) that have been incorporated into state law.39State laws frequently require you to comply with these codes, but since the codes are privately created and published, they are not available for free. Public.Resource thinks this is wrong because a citizen shouldn’t have to pay to find out how to comply with the law. The private companies that own the copyright in the code would prefer to sell copies of their codes. Disclosure: my former-former law firm is representing Public.Resource.
Specifically, Georgia accuses Public.Resource of scanning actual OCGA books and uploading the scans to Archive.org (which isn’t a defendant). Somewhat to my surprise, you can still find those scans on Archive.org. Georgia’s Complaint against Public.Resource very helpfully provides a link to those scans. When Georgia demanded that Public.Resource stop, Public.Resource defiantly refused. When Georgia pointed out that the statutory language is freely available through Lexis, Public.Resource retorted that that wasn’t good enough because users must agree to onerous and horrible terms of use40Which are roughly as onerous and horrible as almost every other set of terms of use on the internet.. Either Public.Resource has a very narrow definition of “freely available,” or it’s just spoiling for a fight.41Before we leave this subject, a word about the Complaint. Georgia’s adoption of the metaphor of “terrorism” is execrable. Yes, Public.Resource’s founder first used the word to describe an instance of his organization’s strategy—way back in 1992—but even so it’s a poor thing to accuse someone of terrorism in a freaking copyright case. It’s completely unnecessary to Georgia’s case and to the story Georgia wants to tell. Putting it in a public document amounts to an unforced shooting of one’s foot: the judge won’t be impressed, and the public won’t be impressed. Get some perspective.
Georgia does not claim copyright to the statutory language. It even says so in the Complaint: “Plaintiff does not assert copyright in the O.C.G.A. statutory text itself since the laws of Georgia are and should be free to the public.” Instead, it claims copyright in the annotations, or what the Complaint calls “judicial summaries” (which is laying it on a bit thick). Public.Resource could have, but didn’t, redact those bits. And Georgia really does routinely obtain copyright registrations for the OCGA. To its credit, Georgia isn’t seeking damages, just an injunction.

Merging Like Traffic on Northbound I–75

Does Public.Resource have a defense? Well, hey, with the willy-nilly expansion of “transformative use,” there’s a chance a court will find this copying to be fair use. You never know. The more exciting argument will be a straight-up public policy one: the law should be free. (Georgia’s response: it is, just not the annotations.) It’s been a long, long time since a court has found no copyright infringement for public policy reasons, though.
To me, though, the main weakness in Georgia’s case is the nature of the annotations: they might not be original enough for copyright protection. Copyright protects only “original” works. It doesn’t take much to qualify as “original.” A phone book isn’t original, if it’s just in alphabetical order by name, but a parts catalogue might be if the parts numbers are neither completely arbitrary nor based on a formula. Even so, copyright does not extend to the underlying facts, just the organization or summary of those facts. Facts and ideas are free for everyone to use.42Unless they’re protected by some other form of intellectual property, like patent or trade secret.
If there are only a few reasonable ways to describe something that’s not copyrightable—say, facts or ideas—there is no copyright protection either, under something known as the “Merger Doctrine.” Your (otherwise protectable) expression is said to “merge” with the non-protectable ideas or facts. The idea is that if we give you copyright protection, you’ll end up with a monopoly over the underlying facts or ideas, as well—contrary to the purpose of copyright. A good example might be the rules of a game. The rules must follow a standard format, they must be easy to understand, and they must have an economy of expression. There really are only a few good ways to write the rules to the game.43Unless you wanted to describe the rules of a game in some outlandish, humorous or other highly creative way.
Here, we have summaries of legal opinions. Summaries are normally protectable expression. Legal opinions, however, are not protectable.44“The question is one of public policy, and there has always been a judicial consensus … that no copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all…” Banks v. Manchester, 128 U.S. 244, 253 (1888). Hmm, speaking of “public policy”… I suggest that the annotations are not copyrightable. Like the rules of a game, there are only a few reasonable ways to write a one-or-two sentence summary of a legal opinion as it relates to the statute in question.
Often, it’s just a matter quoting (and perhaps slightly modifying) a sentence that seems to embody the court’s holding. This isn’t that unusual, since judicial opinions, like essays, often have an identifiable thesis statement, which, in the case of a judicial opinion, is an encapsulation of the holding. An example of this is the annotation headlined “Rulings on statute applicable to Code”: with the removal of a single word, that’s just a quote from the opinion. Often, the judicial opinion isn’t so obliging, and the annotator must create a one-sentence distillation of one or two paragraphs of the judicial opinion.
Locating a legal opinion’s “thesis”, or distilling its holding, is mind-numbing, repetitive work. But it is not particularly particularly difficult work or—more the other point, particularly creative work. It’s still original, of course. But I’m betting that, if you took 100 experience attorneys, handed them Michie’s standards for writing annotations, and asked them to summarize a particular holding as to a particular statute, you’d end up with 100 remarkably similar annotations. As much as we lawyers would like to think otherwise, the task of summarizing a holding is more science than art.
Copyright law doesn’t protect hard work. It protects creativity, even if the creativity doesn’t seem all that creative. Reading through judicial opinions is no fun at all, even if you’re being paid for it. But it doesn’t guarantee copyright protection.

Extra Bonus: Rare Sighting of Non-Employment Work Made for Hire?

Final copyright nerd note: according to the Complaint, Georgia owns the copyright in the annotations, even though the annotations are prepared by Michie, as a “work made for hire.” They might be actual works made for hire (as opposed to assignments of copyright called “works made for hire”)! While works made for hire typically arise in the context of an employer-employee relationship, they can arise outside that relationship if (1) the work falls within one of nine categories, and (2) there is written contract that uses the magic words “work made for hire.” It’s safe to assume that there is such a written contract. One of the nine categories is “supplementary work,” defined as “a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer materials for tests, bibliographies, appendixes and indexes.” The annotations are a lot like editorial notes of a text, and they, in their own way, serve to illustrate the statutes. Note that the “other work” need not itself be under copyright.
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.