Ruling will impact access to information
Who owns the law?
Odd question, isn’t it? Laws are owned by everyone, right? How could it be any other way?
After all, laws have been crafted, debated, voted on, approved and signed all in the public spectrum by those we elected to represent us in virtually every form of government. It’s indisputable that everything about the language of each and every piece of legislation is absolutely public record. Right?
Not so fast, says the U.S. Supreme Court.
The high court agreed last week to take the case of Georgia, et al. v. Public.Resource.Org Inc., which is expected to set precedent on whether state governments can “copyright” the text and annotations of state laws.
The dispute started when open government activist group Public. Resource.Org published an annotated version of Georgia’s legal code. Georgia sued, alleging copyright infringement and claiming the annotated version was not a legal edict but rather simply a commentary on the law.
The Eleventh Circuit court of appeals in October 2018 concluded the state’s legal code, annotated or not, is “inherently public domain material” and, therefore, not copyrightable. That three-judge panel said citizens should have “unfettered access to the legal edicts that govern their lives.”
Georgia makes available to the public a simple text of its legal code online at no cost. But the state also pays private company LexisNexis Group to produce an annotated version. That version, including citations to relevant cases, analysis and opinions, is available for purchase only.
In Ohio, for years the state attorney general’s office has compiled and distributed what is commonly referred to as the “Yellow Book,” appropriately named because of the color of Sunshine — a synonym for public access and open government.
The Yellow Book, updated every year, is available absolutely free (as it should be) via simple online search for Ohio Yellow Book.
In the 2019 edition, Attorney General David Yost, a former newspaper reporter himself, discusses his important duty to promote accountability. His office empowers citizens to become voluntary watchdogs through use of public records.
“This 2019 Sunshine Laws Manual is assembled by my office’s Public Records Unit to be a one-stop resource on Ohio’s open-government laws, both so you know your rights and so public servants know their obligations,” Yost wrote.
I download the updated Yellow Book each year and save it on my office computer for easy access. It’s an amazing resource because it contains specifics about legal challenges throughout the years, accompanied by in-depth explanation of the law and how it’s been interpreted by the courts.
As I’ve made openness and sharing information my life’s work, I refer to the book frequently.
The approach that the state of Georgia has taken to openness seems very different from Ohio’s, and frankly, that the Supreme Court has agreed to hear the case will have significant and lasting effects — not just on Georgia, but on every state.
If the Supreme Court sides with Georgia, anyone who can’t afford to buy the annotated version will be denied access to that state’s own explanation and analysis of the law that the public is expected to know and follow.
Then again, a ruling in favor of Public.Resource. Org, could trigger reduced efforts to elaborate on or clarify the law. That also could be detrimental to the public’s understanding of the law.
The U.S. Supreme Court last addressed whether government has the right to copyright its work in 1888, when it ruled that judges speak for the people, and so their opinions are not bound by copyright.
Certainly all Americans deserve free and easy access to the law. That is a basic tenet of democracy. I believe the law — all of it, including related annotations created by the state — must be kept free of copyright.
Now let’s see if the high court agrees.