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[00:00:00] Greg Lambert: All right, I’ll talk to you later, Marlene.
[00:00:02] Marlene Gebauer: Okay, bye-bye. Oh, just in time. Welcome to The Geek in Review, the podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.
[00:00:20] Greg Lambert: And I’m Greg Lambert. Well, Marlene, this episode wraps up our trilogy surrounding the issue of the state of Georgia versus publicresource.org and the fight over whether states like Georgia can put a copyright claim on their official annotated statutes. So I don’t think the answer is going to be a big surprise to most of our listeners today. But we decided we’d bring in three experts, you know, it is a trilogy, so we needed three. And they’re going to discuss how the court ruled and what this means for states who have established certain copyright restrictions on their laws, as well as to the publishing industry, who may need to identify new business models according to one of our guests.
[00:01:00] Marlene Gebauer: While the court has made its decision, our guests have some disagreement on how far the court’s opinion actually goes. That always makes for interesting discussion.
[00:01:11] Greg Lambert: Yes, it does.
[00:01:12] Marlene Gebauer: We brought back Fast Case co-founder and CEO Ed Walters. He’s joined by a couple of legal scholars from Cornell, Kim Nayer, Associate Dean for Library Services and Professor of the Practice at Cornell Law School, and Craig Newton, co-director at Legal Information Institute. We decided to jump right into this conversation, so we’ll bring back our information inspirations next week. In late April, the U.S. Supreme Court came down with this decision in the Georgia versus publicresources.org question of if a state can claim copyright over its annotated statutes. For the law library professional, I think it’s fair to say that a large majority of us believe that the ruling came down in the way that we hoped. We’ve talked about this issue when it was filed and again when oral arguments occurred. So we thought it made sense to close the loop and discuss the final result and what it meant for states, legal information professionals, and legal information vendors going forward. We’ve brought back Ed Walters, CEO and co-founder of Fast Case, Kim Nayer, Associate Dean for Library Services and Professor of the Practice at Cornell Law School, and Craig Newton, co-director at the Legal Information Institute.
[00:02:24] Kim Nayer: of Practice at Cornell Law School, and Craig Newton, co director at the Legal Information Institute.
[00:02:31] Greg Lambert: So I’ll get this started. Kim, would you mind just giving us a little bit of the backstory and what happened to cause this case both to get filed and then eventually brought to the U.S. Supreme Court.
[00:02:45] Kim Nayer: So you’ve talked about this case already, but just as a refresher, public.resource.org is an organization that has a mission of making access to the law open and available. This case involved that organization’s efforts to not only make the Georgia Annotated Code available, but also to push the boundaries of what that meant, what open access to Georgia law meant in this case. So Carl Malamud, who is the principal of public.resource.org, digitized the Georgia Annotated Code, including what are the annotations to the code, and that’s where the boundaries get pushed here, is what actually constitutes the law. So the code itself, stripped of any additional content, that the issue relating to copyright in that instance is pretty clear. But the question he was wanting to push is that these annotations also form the law and therefore should be available to anyone by an assertion of copyright over this really defeats the purpose of open access to primary law.
[00:03:40] Ed Walters: annotations also form the law and therefore should be available to anyone by an assertion of copyright over this really defeats the purpose of open access to primary law.
[00:03:51] Kim Nayer: And someone please jump in and help me out here.
[00:03:53] Marlene Gebauer: Someone will. Don’t worry.
[00:03:57] Ed Walters: Yeah, maybe I can tell a little bit more of the backstory. So, Kim, that’s an awesome summary. Maybe I can hum a few bars of how a bill becomes an annotated code in Georgia, because the facts really matter here. So in Georgia, like in many states, the legislature passes a bill, a member of the Georgia legislature will draft a bill, it’s debated, it’s amended. The legislature passes a bill, and the governor signs it into law. And then it goes into Georgia’s Code Commission, an agency of the legislature who is responsible for codifying those bills into the outline of Georgia’s code. Right. And so the commission goes through these acts and cuts the bills and puts them into their place in the Georgia code. And like several states, Georgia’s official code is annotated. The official code of Georgia annotated, or OCGA, you’ll sometimes see it. and for the annotation work the Georgia commission contracts the writing of the annotations to a private publisher Lexis Nexis and so Lexis Nexis compiles annotations for each section of the code and annotations look like summaries of judicial opinions that you know sort of expound on the statute to say what it means uh it will cover like legislative history notes and when at the end of each session annotation work, the Georgia Commission contracts the writing of the annotations to a private publisher, LexisNexis. And so LexisNexis compiles annotations for each section of the code, and annotations look like summaries of judicial opinions that, you know, sort of expound on the statute to say what it means. It’ll cover like legislative history notes. And Lexis compiles those annotations. They pass them back to the commission. The legislature sort of blesses all of the annotations and passes them into law. And then, as a part of its work, the state of Georgia has contracted out with LexisNexis the exclusive franchise to publish the official Code of Georgia annotated. The state of Georgia, the governor’s office, the legislators all get free or heavily discounted copies of the OCGA. And then Lexis can sort of sell it to the world as the official version of the Georgia code under the exclusive book publishing franchise. That’s kind of how a bill becomes a law in Georgia. In this case, maybe I can just add one more fact. And that is that publicresource.org’s president, Carl Malamud, who believes in open access to the law and believes that once you make any publications the official version of the law, whether it’s annotated or not, the whole thing passes into the public domain. law and believes that once you make any publications, the official version of the law, whether it’s annotated or not, the whole thing passes into the public domain. And so Carl Malamud, the president of publicresource.org, took a copy of the official Code of Georgia annotated, scanned it, and published it online for free, not in the dark of night. In fact, one thing that the publicresource.org did was to take the scanned version of the code and sent it on thumb drives to the Georgia legislature and other officials in Georgia, and told them, I’m going to do this in public because this is public law. I’m not sneaking around or anything, I’m going to tell you that I’m publishing your open law openly on the internet.
[00:07:07] Greg Lambert: So Malamud was looking to get sued on this, right?
[00:07:10] Ed Walters: At least he was looking to assert the fact that open law is open. You know, he wasn’t he wasn’t trying to do it in the dead of night.
[00:07:18] Greg Lambert: But he wasn’t surprised he got sued.
[00:07:21] Ed Walters: Yeah, I can’t I should say like, so, in the interest of full disclosure, I serve on the board of publicresource.org. I’m hardly, you know, a partisan about this, but I can’t really
[00:07:32] Kim Nayer: speak to Karl’s motivation, or whether he was surprised when Georgia sued him. But the state of Georgia, not LexisNexis, was the one who brought suit against Karl. It was the Code
[00:07:44] Ed Walters: Commission for the state of Georgia that brought suit. And they, you know, insisted that he take the code down. And the district court in Georgia and the Northern District of Georgia held for the Code Commission. They said this is the annotations the copyrighted work of the state of Georgia, and maybe perhaps of LexisNexis as well, and requested, insisted that publicresource.org take the law offline, which they immediately did. They took the code offline, and immediately appealed to the Eleventh Circuit.
[00:08:18] Kim Nayer: And thank you, Ed, for reminding me about a step in the U.S. legislative process that I sometimes forget. And so whereas I love the way Americans pronounce codify, codify, I don’t love the way the law is codified here. So the statutes on their own, they’re fine, and they’re fully available. But to add that extra layer of annotation, and then to go and license a private provider to do it and call that whole thing, the codified law, yeah, that that seems to defeat the purpose of law being available.
[00:08:51] Craig Newton: the purpose of law being available.
[00:08:55] Greg Lambert: Well, and especially to say the official code of Georgia, that’s I think the official some people look at that as saying, this is the one I have to have in order to really practice law in
[00:09:07] Kim Nayer: Georgia. Yeah.
[00:09:09] Ed Walters: Can I ask in Canadian, do you guys add an extra U to codified?
[00:09:17] Kim Nayer: No, I do not favor the extra U in codify.
[00:09:21] Ed Walters: That is very honorable.
[00:09:23] Greg Lambert: Yes, ask your neighbor about that.
[00:09:28] Marlene Gebauer: So now that we’ve gotten a really good background, Craig, can you summarize the court’s opinion for us?
[00:09:36] Craig Newton: Sure, I guess it’s about time I jump in here. So the first sort of interesting thing about it is it was a 5-4 opinion, and it was a very unusual majority, right? So it’s the Chief Justice who authored the opinion. And he was joined by Justices Sotomayor and Kagan and Kavanaugh and Gorsuch. I don’t recall who first pointed this out, because I’d love to give them credit. But these are the five youngest justices. There’s actually this split under 70 and over 70. So perhaps that’s significant. Perhaps it’s not. Perhaps that’s a harbinger for the future. Perhaps it’s not. But nevertheless, an interesting little factoid there. As for the opinion itself, I know Ed disagrees with me on this, which is exciting. But you know, I think the holding is actually, you know, fairly narrow. I was trained that the holding is what the court says it is. And really, everything else is just dicta. especially if you’re trying to distinguish your facts from a case. Then everything that’s not the holding is dicta, right? And so what the court says is we hold that the annotations in Georgia’s official code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. And like I said, I’m sure Ed is chomping at the bit there to tell me I’m wrong about that. But as far as, you know, more of an overview of the opinion for folks who haven’t read it or aren’t familiar with it, all of this analysis that goes into that holding turns on something called the government edicts doctrine. And that’s, I know, something that Ed and Kim talked about at length in a previous podcast from AALL about this case. But what we knew about that doctrine previously from a series of very old cases was that judges cannot be the authors of works that they produce in the course of their official duties for copyright purposes, regardless of whether or not what they’ve written carries the force of law. And for example, I think it’s the Chief Justice in the opinion of the court says, for example, dissenting opinions, those don’t carry the force of law, they’re dissents. But nevertheless, a judge can’t own a copyright in a dissenting opinion, right? So, you know, really in the most narrowest sense, what the Supreme Court did was say that same rule applies to legislatures or legislators the same way it applies to judges. But at the same time, especially I think with the Roberts Court has a reputation for the narrowest possible holding, there’s a lot of sort of wonderful analysis and wonderful pronouncements for those of us that do free law for a living, right? You have the court courting a 19th century case out of Massachusetts that says no one can own the law, and that every citizen is presumed to know the law and therefore all should have free access to its contents. People that do open access, people that do free law, I mean, we absolutely, you know, brighten at that, right? You’ve also got these bits. There’s a bit in the opinion where the Chief Justice talks about a pay per law scenario and how unfortunate that would be. And I think that got all the PACER fee folks really excited. There’s a nice exposition of specific examples of what a citizen in the state of Georgia wouldn’t know about Georgia law without the annotations, such as specific laws that have been held invalid but have never been taken off the books. And so, you know, the Chief Justice, you know, wants to avoid what he called the economy class version of the Georgia Code. That’s all really exciting. And then, you know, again, I kind of contrast that with, you know, what I was taught to look as, like I said, the court will tell you what the holding is, which I read as pretty narrow. And so, in my mind, there remains some question about where does that leave everything else that’s not the annotations to the official code of Georgia.
[00:13:34] Greg Lambert: Mr. Walters, you have the floor. How is Mr. Newton correct and incorrect in his reading?
[00:13:41] Ed Walters: Now I’m having flashbacks from law school. Mr. Walters, state the fact.
[00:13:52] Marlene Gebauer: You need to stand up.
[00:13:57] Ed Walters: Hold on a second while I nervously sweat. Also, I think this is actually a pretty sweeping opinion. You know, the court in this case could have said, look, under the narrow facts of the way Georgia codifies its codes, this specific collection isn’t copyrightable. Right. But that’s not what the court said. When the chief writes the opinion, I’ll quote the opinion chapter and verse here. Under the government edicts doctrine, judges, and we now confirm legislators, may not be considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to annotations here because they are authored by an arm of the legislature in the course of its official duties. So there’s four things about this that I think are extraordinary. First is that this applies to states. It’s long been copyright policy that official works of the US government can’t be copyrightable under law. This opinion extends to the states. And I would imagine not just like to, you know, top level states to the counties or any government organization. To this applies, not just to case law, as we’ve seen in the historical precedence, but to statutes in this case. And again, the court could have said the government edicts doctrine applies to statutes, but that’s not what Justice Roberts says. Justice Roberts says that any government actor acting in their official capacity can’t be the author of what they write. Third, the chief goes out of his way to say it doesn’t matter whether what they write is binding law or not. So I went to the argument in Georgia versus publicresource.org and there was a lot of time spent on whether the annotations of the Georgia Code constituted binding law or not, and whether it mattered, whether the lawmaker, the agency regulator, the legislator, the judge was writing binding law, or whether it was something else in their official capacity. The chief says it doesn’t matter whether it’s binding law or not. If the thing that you are writing is in your official capacity as a government agent, if you’re working on behalf of the people, then it’s the people who are drafting whatever you draft, not just binding law, anything that you write. And then finally, I think it’s a very broad application to agents of government, right? Because remember, it’s LexisNexis who writes these annotations in the Georgia Code. And the court has no problem at all saying, when a private company creates something like an annotation as a work for hire, regardless of whether it has the binding force of law, they are doing the work of the legislature, they’re doing the work of the government agency, and it is a work for hire. So in agency law, the agent can’t have any more rights than the principal can. You can’t make an end run around copyright law by hiring out a private party to do this official government work on behalf of the people, and thereby get some sort of ownership right in the output. No, the chief says here, if you are a private party and you are acting as an agent of the state, acting in its official capacity, you have no more rights than the principal does, you have no more rights than the legislature does, and the work that’s created can’t be authored by the private party any more than it could be the government party. In every one of these cases, the people constructively are the author of this document. The legislators and government agency are acting on behalf of the people. And when they contract these rules out to private parties, the private parties are acting on behalf of the people. And whether that is binding law or non-binding law, whether that is in the federal government or in the states, whether that is judges with judicial opinions, or legislators with codes, and whether those codes have the force of law or not, every one of those circumstances, they are edicts of government, and they are outside of the scope of copyright. This is remarkable. I mean, this is an amazing opinion from the chief. Again, you have justices, as Craig noted before, who you typically think of as being very narrow constructionists, right? Justice Roberts, Justice Gorsuch, Justice Kavanaugh, you could imagine in this case saying, under these narrow facts, we hold that the official code of Georgia, as annotated by LexisNexis, under the agency contract that we’re looking at in this specific circumstance, is not copyrightable. But instead, what you get is this broad sweeping proclamation by the chief of the government edicts doctrine for all time.
[00:18:53] Craig Newton: and for all kinds of documents, anywhere, for any level of government, state or federal, outside the scope of copyright. Remarkable.
[00:19:02] Greg Lambert: All right, Mr. Walters, you’re just showboating now, so let’s giveΓǪ
[00:19:06] Marlene Gebauer: I’m saying that was just like law school.
[00:19:09] Greg Lambert: Let me give Mr. Newton 30 seconds to rebut.
[00:19:13] Marlene Gebauer: Rebuttal, rebuttal.
[00:19:15] Craig Newton: Ed, your reputation as an unrepentant optimist is definitely well- earned. I would say, if I really only have 30 seconds, I will say two things. The first is that, you know, the holding is not this broad proclamation that all official codes are not eligible to copyright protection, including their annotation. It’s that Georgia’s official code isn’t eligible for copyright protection. You know, I’ve actually marked up that part of the opinion, Ed, as supporting the idea that the holding is narrow, because it says judges and legislators. It doesn’t use the phrase government agent or government actor. In fact, I don’t think those phrases appear anywhere in the opinion. And as far as this question of the agent, I don’t dispute that the agent doesn’t have more rights. He has more rights than the principal, but the last sentence of what you read, Ed, was it says that the rule applies to the annotations here because they are authored by an arm of the legislature. It doesn’t say an agent of the legislature. They’ve essentially, in the next section of the opinion, the chief justice, you know, goes through all the reasons why the commission held such tight control, all the ways the commission held such tight control over Lexis, that Lexis had become an arm of the legislature itself. So I think that’s where the disagreement there, but to the extent there is one, or maybe your optimism and my pessimism, Ed, I think that’s sort of the crux of the matter.
[00:20:43] Kim Nayer: What Craig is picking up on there is like the analysis of the 11th Circuit, where Lexis might be Lexis, but they’re acting so closely under the direction of the commission that it is the words of the legislator. There’s no room for interpretation. It’s not commentary. So it’s very directive, and I think that that’s an extension of that very, I thought, valuable analysis of the 11th Circuit.
[00:21:13] Greg Lambert: So, Ed, let me test your optimism here. Is this limited to any vendors or third parties that contract with the state, that that makes them basically an agent, or how far does that go?
[00:21:31] Ed Walters: Well, I think that for, certainly for government contracts, where the private publisher is performing on behalf of the state, some state function, I think you’d have a very hard time claiming copyright for that. If the state, acting in its own capacity, wouldn’t have copyright, then anytime they contract that role out to a private publisher, the publisher doesn’t have any more copyright than the state would have. So Craig would tell you the glass is half full. I think the glass is overflowing. I can’t believe it.
[00:22:04] Greg Lambert: Well, you’re both optimists in your own way, I guess.
[00:22:10] Craig Newton: I’ve never been accused of being an optimist in my life.
[00:22:14] Greg Lambert: Well, Ed, let me follow up with that. So what doors does this throw open then for legal publishers or anyone that wants to take a government document and say there’s no copyright, therefore I can add my own annotation, I can package this and sell it. What does this throw the doors open to?
[00:22:40] Ed Walters: Well, just in a nuts and bolts way, at Fastcase, we’ve been publishing the economy class version of the Georgia Code, the exact thing that Chief Justice was worried about. When we go to publish the Georgia Code online for the last five years, we have a deal with the State Bar of Georgia. We provide Fastcase legal research for free to all members of the State Bar. But when we went to go publish the official Code of Georgia online, both the legislature and LexisNexis said, you can’t. We claim copyright in the catch lines, the titles, the top of the statutes, and certainly in the annotations. And so when Fastcase historically has published the Georgia Code, we’ve had to rewrite the catch lines, 30 some odd thousand of them, and remove the annotations, not because we didn’t think that they were public, we certainly thought that they were, but because we knew that it would be like a million dollar lawsuit with LexisNexis. And so I think for people like Fastcase or Cornell’s Legal Information Institute or any public spirited publisher who wants to publish these codes online, heck, even for Westlaw, for that matter, we now have a green light to do what we have known has been legal the entire time, which is to publish as public law that is public and to know that private companies can’t own public law. So now Fastcase publishes the entire Code of Georgia with the correct catch lines, the official catch lines, and with the official annotations. So we have promoted the entire State Bar of Georgia and all of its members to first class access to the law.
[00:24:25] Greg Lambert: Does this open up the door for any other states that have similar arrangements to what Georgia had?
[00:24:33] Ed Walters: I think every one of them, doesn’t it?
[00:24:34] Greg Lambert: That’s the question I’m asking. You’re the expert.
[00:24:37] Marlene Gebauer: Who’s going to test it?
[00:24:39] Craig Newton: I think it turns that million dollar litigation into like $500,000 litigation. You’ll be mad at it on summary judgment this way, Ed. Congratulations.
[00:24:46] Ed Walters: The Chief Justice seems to be pretty declarative about this. I think if you are a legislature and the only way that you have felt like you could codify your law in the past is by some sweetheart contract to a private publisher, it’s time to get an authorization of funds to your codification commission because from here on out, the public law is public and anyone can republish it. You don’t need to have a sweetheart contract with LexisNexis to publish public law.
[00:25:19] Marlene Gebauer: Okay. So Craig, as a self-proclaimed pessimist, how does this expand on the Legal Information Institute’s mission? Do you think it opens up doors for materials that you’ve previously not decided to put in your resources because of fear that states would sue?
[00:25:39] Craig Newton: So my co-director, Sarah Frug and I have talked about this and to be honest, we’ve had some initial conversations with some potential collaborators. First, the whole reason why state statutes were before the Supreme Court in the first place was because publicresource.org was putting them up. So Carl Malamud has them and I think there are probably other people who will be making them publicly available. And who knows, as I think Ed just addressed, who knows, you may even see some of these other states open up their code and sort of up their open access game, if you will. So the state statutes are probably taken care of and now I think there’s another question I hope we’ll get into about what else is open or possibly open under this opinion. I’m looking forward to disagreeing with Ed again and letting Kim be the tie-breaking vote again since she agreed with me on the first point. I don’t know that I did, Craig.
[00:26:43] Marlene Gebauer: Excuse me. Wow, what a setup there.
[00:26:45] Craig Newton: Nice try. Never stop litigating. But anyway, to answer your question, it’s really been a long time since we at the LII have seen ourselves of being in the business of just putting up materials that weren’t otherwise publicly available. I mean that’s the kind of thing we were doing in the first decade or two of our existence and we’ve been around almost 30 years now. Now we’re more about enhancing and connecting data in ways that other less comprehensive or less experienced free law folks might not have the wherewithal to do. So what we see ourselves bringing to the table in terms of state materials or other collections of this sort is being able to provide enhancements and readability or usability, if you will. And since state statutes are fair game, if we can find partners who want to do interesting things with them, then that’ll be really exciting for us. But as we were joking about, or maybe not joking about, the continuing specter of litigation over some of this stuff, I’m not sure that’s going to completely go away. And there’s so much to do in the open access community. If you’ve got this one bucket of projects that don’t have any copyright issues and you have this other bucket of projects where you have these copyright claims, no matter how dubious, then I think there’s going to be a natural gravitation to sort of still continue to steer clear of issues or collections where the copyright status is still a little bit up in the air. So we’ll see what actually changes. But again, we’re talking to people, we’re looking at some things, and we’ll see what happens.
[00:28:22] Greg Lambert: Well, now I think it’s time to get into some of those other issues that you’re talking about, Craig. The first thing that I thought about was, what’s the difference between these types of annotated statutes and copyright claims and, let’s say, standards regulations, where the state outsources this to some type of professional organization that creates the standards around, say, electrical codes. The publishers have kept an iron grip on those and has quickly slapped down anyone that’s tried to say that there’s no copyright claim to that. How does this Georgia decision affect other types of materials that the state may have outsourced to third parties?
[00:29:18] Kim Nayer: Oh, when I think about this Georgia decision, I find myself not surprised by it. And I don’t know if that’s because I also am an optimist or because I just found that 11th Circuit reasoning highly persuasive. I found the factums of the Amici very persuasive. And I also had just, you know, I was really go Carl on this one because he, as you might remember, did not have to bring this. He did not have to be at the Supreme Court. He could have taken his 11th Circuit victory and said, we’re clear in Georgia. But instead, he did not oppose the motion. And he said, yes, please, SCOTUS, I want to hear from you too on this case and a huge risk in his words, a squeaker of a result. And so where does that put other publishers? I think, you know, part of me wants to encourage publishers to take risks. I have been encouraging our friend Ed here to think of, for example, Canadian law as being game for inclusion in wonderful products like Fastcase. There are issues that concern for profit publishers that I don’t think would concern Carl. And I have to say that that’s a market that I would love to see publishers try to push in on. As you might know, when a similar issue of sorts was brought tangentially to the Supreme Court of Canada and the 11th Circuit case was one of our strong authorities that we argued on, as well as those. What were they, 18th century cases that relating to case law banks in Manchester and whatnot, really making the case that we need to move on from an era where law should exist in classes at all or in tiers at all. People cannot know their rights unless they can access the law and people cannot know their rights and access the law until they can access the official authoritative source of law and not what chunks and pieces they can find on the Internet.
[00:31:25] Ed Walters: Kim, would you mind saying a word just about what would happen if Fastcase, for example, published the case law for Canada? Would we be sued by the Queen of England?
[00:31:37] Kim Nayer: I’m trying to determine who would sue a publisher who did that. So, to date, you might know that the Canadian Legal Information Institute, or CANLI, inspired by Craig’s Legal Information Institute, publishes a good chunk of Canadian law, primary law and legislation and case law, large quantities of it. And they do that by agreements. I don’t know. I don’t work for them. I don’t know what’s exchanged, but they do that by permissions and agreements. There is also an executive order authorizing anyone to reproduce federal law. I should check myself, but there’s an executive order authorizing some republication of federal law. So, that exists. There is permission granted. Interesting, in that federal order, there’s no actual claim to copyright in the law. There’s just a statement that allows people to use the information on this site as official law.
[00:32:37] Ed Walters: Do you want to say just a word about Crown copyright, though? I think you’re very familiar with it, but a lot of the listeners of this podcast might not be.
[00:32:47] Kim Nayer: That’s right. So, I think a reason that, Ed, you’ve told me you’re hesitant to get into Canada, into the Canadian market, is this concept of Crown copyright, which is an ancient holdover from the UK. It’s ancient in Canada as well. The section hasn’t been substantively changed since 1911, I think. In the words of the statute, this is a section of the Canadian Copyright Act that sets a term of copyright protection when something is produced by or under the direction and control of the Government of Canada. It’s very similar to the Government Edicts Doctrine, and it’s a specified term. There’s also a portion of this section that is subject to the prerogatives of the Crown. That is where this supposed source of authority of ownership of the law comes into play, because very clearly, statutes and case law are not published by or under the direction of the government. Judges have said that in case law. There is a very clear and important case in Canadian law called CCH in the Law Society of Upper Canada, in which the court says very clearly it would not be an infringement of copyright to reproduce the judgments without the additional material that publishers may add. If it is the judgment alone of the court, that is free of copyright. They didn’t say quite so in those terms, but the point was it would not be an infringement of copyright to publish or reproduce the reasons alone. I think Crown copyright is a confused area of law. It has only been considered once at the Supreme Court of Canada. That was in a case that I was in last year where we brought this sort of tangential argument. They agreed that this section is confusing, is in need of amendment. They agreed that we raised a number of very good issues relating to the status of copyright and primary law, but they declined to rule on it until they could hear it argued more fully. So Crown copyright, there is no expression anywhere in it that creates a copyright in the Crown. The Crown copyright section merely sets a term of protection when copyright does rest in the Crown.
[00:35:13] Greg Lambert: Well, I think Ed should take the case and get sued in Canada. It would still be a million-dollar case, but it would be in Canadian dollars, so it would be like a 20% discount.
[00:35:23] Kim Nayer: It’s a good time to do it. I think it’s $1.40 to the dollar right now.
[00:35:28] Greg Lambert: There you go. See, Ed, it’s a bargain. Let me check with Ed on this. What about the codes, the regulatory codes that states outsource? Is that now open for someone to take and publish online and rely upon this decision to say, look, it’s got the enforcement of law. It’s been adopted by the states. This has the force of law, so therefore people need to be able to see this, and it shouldn’t be behind a paywall. Do you go that far?
[00:36:06] Ed Walters: Well, I think the short answer is we’ll find out pretty quickly because this exact issue is being litigated right now at publicresource.org. It’s the ASTM, I think.
[00:36:16] Greg Lambert: No moss grows on Carl.
[00:36:19] Ed Walters: No, he can see what the next steps are. The question is, for standard- setting bodies where they create a model code that is to be adopted by counties or states, by lawmaking entities, when those states adopt the model code into law, can anyone publish them? If there’s a model fire code or a model reg for the safety of child toys, when a government publishes that into law and it has the imprimatur of the state, does it then pass into the public domain so that anyone can publish it? Now, standards-making bodies have said, if that is the law, we’re going to go out of business. You won’t have any more standards because we are paid by the states for these proprietary standards to be included in that state’s law, and because we have the exclusive franchise in the standards that we make, we can afford to pay very smart people to put them together. I don’t think it’s much of a stretch to read the reasoning of the court here to apply to those standards very clearly as well. If an agency is acting on behalf of the people and it adopts a standard into law, and that is the only exposition of the official law, it’s a regulation, not a legislation. But I think the reasoning stands very clearly to say that when they are acting on behalf of the states, even if some of the work is done by a private publisher, the work that they produce is authored by the people constructively, and so there’s no copyright in that output. Again, I think there was an argument in the Georgia versus publicresource.org case, and there’s an argument in the ASTM versus publicresource.org case that goes something like this. If you say that these things are in the public domain, we will no longer be able to carry out this function. The private publishers can no longer carry out this function. There’s not enough financial incentive for LexisNexis to create the annotations to the Georgia code if they don’t get the exclusive franchise to publish exclusively the official code of Georgia annotated. If you don’t give standard-setting bodies the exclusive franchise in what they create, even when it’s adopted into public law, you will no longer have standard- setting bodies, to which I would say it might be true. It’s probably not true, but it might be true that people who have been able to claim some sort of exclusive franchise in the past on public law may have to change their business model. If your business is that you are the only authorized seller as a private publisher of something that has become public law, you need to change the business model. In this case, Georgia’s legislature argued before the Supreme Court, if we can’t have this kind of exclusive lockup with a private publisher and grant them the exclusive copyright to the official code of Georgia annotated, we won’t be able to do these annotations in the Georgia code.
[00:39:34] Marlene Gebauer: What are they going to do? How are publishers going to protect themselves?
[00:39:38] Ed Walters: Well, so I’m a publisher, right? And I would say that it’s two separate questions. How publishers protect themselves, I think, is maybe this much smaller question, the less important question. I think the bigger question is for the public. If we think that the annotated codes are important, how do we continue to protect this public resource? And I think the answer is probably the same in both cases, right? The way to do it, in my opinion, is to say we’re going to have an official code that is the one official code that is unannotated, that everyone can use, right? It is in the public domain. And then if LexisNexis wants to create an annotated version of it and sell that as their exclusive product, that’s great. They can use the official code of Georgia, unannotated, but the official version of it to create their own private code. They can annotate it. They can mark it up. They can do all kinds of editorial magic. Lexis is great at this, and sell it as a private collection. By the way, exactly how Lexis does this in states where there is only one official code, right? So do the same thing in states like Georgia as they do in states like Texas, right? And so I don’t think that there is a big threat to publishers here. You know, Fastcase does this all the time. We’ll take an official code, and we will add value-add tools to it. We’ll add our own annotations to it. We’ll add all kinds of interesting things that make it useful working with the public, open, official codes. Publishers, I think, are going to be okay. I think Lexis is going to make it. The real question for me is, how is the Code Commission going to be able to do its codification work, and how can it support that? And this may require additional allocation of funds. The Code Commissions may need to be staffed up a little bit more, or they may need to find some other, you know, really interesting tie-in with Lexis. I could imagine, for example, in Georgia, the Commission saying, Lexis, we’re going to pay you some amount of money to do the work that you’ve done in the past. We’re going to create a public, open, unannotated version of the Georgia Code. And then you can license the seal of the legislature, you know, from Georgia for your annotated version of the code. You create the Code of Georgia Annotated, not the official Code of Georgia Annotated, the Lexis Code of Georgia Annotated, right? Name it after a publisher like McKinney or Vernon or somebody, and, you know, release it as your proprietary product. But then through the licensing arrangement, the state gets some discount on the services. But I’ll hold out one more thing. Greg knows more about this than almost anybody. States can do this, right? States can be the publishers of their own codes. It is easier than ever to do this. States can create annotations for these codes. There are better tools than ever to do this. And I’ll make this claim right now. Any state that feels like it is jammed and can’t create its own annotations without granting some exclusive franchise to a private publisher for their codes and taking the public domain and paywalling it, Fastcase will help. We will step in to your state and help you create the annotations and help you create your official code. You absolutely can do it. There are so many states that do, and the tools are easier than ever.
[00:43:09] Greg Lambert: And my team and I will step in and we will do a lot of the heavy lifting to help you get there yourself. You can totally do it.
[00:43:18] Marlene Gebauer: Anybody else have any comment?
[00:43:20] Kim Nayer: I wanted to hear a little bit more from Greg, actually. Greg knows more than anyone. Tell us more, Greg.
[00:43:27] Greg Lambert: Yeah, that’s like 20-plus years of experience, right?
[00:43:33] Ed Walters: Greg was one of the first.
[00:43:34] Greg Lambert: Yeah, we did the same thing in Oklahoma, starting with the case law. And then we worked somewhat with the legislature. The legislature was actually pushing out the bare bones statutes. And then we would take it in the court system and add it into our information, and then we would cross-reference it with the cases. So if cases cited to the statutes, that showed up. And again, this was in 1997 through 2001 when I was there, so this is not new by any stretch of the imagination. It just takes some willpower on the state to make a determination that they’re going to make sure that their citizens have access to their law. You can ask almost any member of the Oklahoma Bar, and they will sing the praises of the state, allowing them to access the information freely, openly, and also officially. Those are the official decisions. And to cite to those is to cite to the official documents of the state. So it can be done. It’s just a matter of, does the state have the willpower to do that? And it might mean that you go up against a couple of the big publishers in order to kind of disengage them from the process of essentially owning the state laws.
[00:45:16] Ed Walters: This is OSCN, right?
[00:45:18] Greg Lambert: Yeah, the Oklahoma Supreme Court Network or State Court Network, I think, is what we refer to when we stop just doing the Supreme Court decisions.
[00:45:28] Kim Nayer: What I love about all of what you said, Greg, there is that you didn’t use the word copyright in there once. And that to me is one of the more troubling aspects of all of this is why we are talking about copyright in connection with making publicly owned, publicly created law available and accessible to the public. How this became an issue of copyright is a puzzling matter to me.
[00:45:57] Greg Lambert: Well, I’d say there’s probably three reasons to that.
[00:45:59] Craig Newton: It’s money, money, money, and more money. And on the issue of regulations, correct me if I’m wrong, Ed, or anyone else, but it’s, you know, even before you get to the issue of the work of standard setting organizations incorporated by reference, there are a handful of states that either claim copyright in their regulations outright, or put them, you know, either in some sort of licensing structure or limit access through terms of use online, etc. Such that even before you get to the incorporation by reference issue, you got a real problem if you’re trying to access these in a meaningful way.
[00:46:44] Ed Walters: Yeah, it’s true. We’re living proof.
[00:46:46] Greg Lambert: So I mean, there’s, you know, there’s, there seems to be there seem to be other, you know, easier questions in terms of in terms of where the next battleground, so to speak, should be on this stuff, even before you get to the harder questions of a case where a standard setting organization has done its work, and then a state comes along and essentially scoops it up and says, Hey, that’s the, you know, that’s the the code of our jurisdiction now.
[00:47:16] Kim Nayer: That issue, you know, it was actually litigated in Canada, there is a case from late 2018 called Knight and electrical safety, something I don’t know the exact name, but it’s Knight, K-N-I-G-H-T from the Federal Court of Appeal, the Supreme Court declined to hear an appeal of it, even though there was a dissent. But Mr. Knight wanted to be able to make use of standards that were incorporated by reference in regulation, but essentially could not, because there was copyright in the safety standard, even though it was incorporated by reference in the regulation. And there was a disagreement among the judges as well about whether copyright should exist. And again, in the context of Crown copyright, whether the Crown somehow owned copyright in that now that it was part of the law. It’s an interesting read. It ends where it ends. I don’t know if another body is going to try to bring a similar litigation on a different footing, because this actually preceded the other case that we talked about. It’s not really helpful to any party, the outcome is not really helpful to any party, in the sense that we have got a situation where something really is part of a law. And perhaps the earlier question was whether it really ought to have been a copyright contractual relationship between the government and the electrical safety standard body or not.
[00:48:49] Ed Walters: I think Kim and Craig have identified the three next frontiers. Now that we’ve established that legislation is not copyrightable as authored by the people. It is going to be statutes, it’s going to be standards incorporated by reference, and it’s going to be terms of service, not copyright. Those are the kind of three next frontiers for public law.
[00:49:12] Greg Lambert: Well, I think that’s probably the best place to stop with this cliffhanger. And then when we get into those cases, I’ll bring the three of you back in. Well, Craig and Kim and Ed, thank you very much for taking the time to talk with us about this. This has been fun. Thank you.
[00:49:28] Ed Walters: Thanks for having us, Craig.
[00:49:30] Greg Lambert: Well, thanks again to Kim Nair, Craig Newton and Ed Walters for joining us and wrapping up our discussion on Georgia v. PublicResource.org.
[00:49:40] Marlene Gebauer: Yeah, it’ll be really interesting to see what the publishers end up doing because, you know, clearly this is a money source for them and they invest in this, but they’re going to have to figure out, you know, some other way, I guess, depending on how you look at this. Rather than sort of. Being the official annotated statutes.
[00:50:03] Greg Lambert: Yeah, it’s going to be interesting to see how this either does or does not affect the other states.
[00:50:11] Marlene Gebauer: Yeah, it’s really about how broad it’s going to be, right?
[00:50:14] Greg Lambert: Yeah, well, and if our two people couldn’t decide on how broad this was, there might be some more court cases.
[00:50:23] Marlene Gebauer: Oh, my gosh, we’re going to have to bring them on all again. Well, before we go, we want to remind listeners to take the time to subscribe on Apple Podcasts, Spotify or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at Gabe Bauer M or at Glambert, or you can call the Geek & Review hotline at 713-487-7270. or email us at geekandreviewpodcast at gmail.com. And as always, the music you hear is from Jerry David DeSicca. Thank you so much, Jerry.
[00:51:05] Greg Lambert: Thanks, Jerry. All right, I’ll talk to you later, Marlene.
[00:51:08] Marlene Gebauer: Okay, bye-bye.
[00:51:25] Craig Newton: You’ll notice that it’s still daylight, and the devil’s back from the barn, and the devil’s back from the barn, and the devil’s back from the barn.