For years, rogue archivist Carl Malamud (previously) has been scanning and posting proprietary elements of the law, such as standard annotations or building and safety codes developed by outside parties and then incorporated into legislation, on the theory that if you are expected to follow the law, you must be able to read, write and share that law.
Along the way, Malamud has attracted numerous lawsuits from standards development organizations, publishers, national governments and state governments. Notably, the State of Georgia sued Malamud over his free publication of "The Official Code of Georgia Annotated," which is, as the name implies, the state's official version of its own laws. Malamud won on appeal and when the case headed to the Supreme Court, legal scholars, lawyers and law students lined up to sign an amicus brief on his behalf.
Yesterday, the Supreme Court heard oral arguments in Malamud's case. Gorsuch was skeptical of Georgia's claim that paywalling the law was necessary or proportionate, and the justices overall were not overly generous to Georgia's arguments that Lexisnexis's unpaywalled, unannotated version of the law (which is not the official version and also warns readers that it might be out of date) can substitute for the state's official laws.
The annotations in the annotated code summarize relevant judgments that are necessary to interpret the laws. Georgia does not publish an official, un-annotated version of its laws.
However, it's not a slam dunk. Breyer, Sottomayor and Kavanaugh were all tough on Malamud's lawyer.
The court is expected to rule by late June.
Justice Brett Kavanaugh also challenged Citron repeatedly on a variety of points. One set of comments emphasized the same distinction as Breyer's, between the law and the annotations describing it. Kavanaugh pressed Citron to agree that it "would be a mistake" to treat the annotations as having any significance in the articulation of law. As Kavanaugh put it, "if you cited the annotations as binding law, that would be wrong."
Another question from Kavanaugh pointed to an amicus brief by a group of states, which made what Kavanaugh described as "a very strong argument" that depriving the states of copyright protection for works like this likely would mean "that there'll be fewer of these annotations." Finally, Kavanaugh asked Citron whether he thought the justices should "interpret" the old Supreme Court cases (which predate the Copyright Act by more than a century) "in the direction of the Copyright Act, which clearly says states can get copyright protection for annotations?"
Argument analysis: Justices debate copyrightability of state legislative annotations [Ronald Mann/Scotusblog]
Justices debate allowing state law to be "hidden behind a pay wall" [Timothy B Lee/Ars Technica]
(Thanks, Darren Bedwell!)