`
`IN THE
`
`
`
`Supreme Court of the United States
`
`
`STATE OF GEORGIA, et al.,
`
`Petitioners,
`
`v.
`
`PUBLIC.RESOURCE.ORG, INC.,
`
`Respondent.
`
`
`
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Eleventh Circuit
`
`
`
`BRIEF OF AMICI CURIAE
`NEXT-GENERATION LEGAL RESEARCH
`PLATFORMS AND DATABASES AND DIGITAL
`ACCESSIBILITY ADVOCATE
`IN SUPPORT OF RESPONDENT
`
`
`
`
`
`Phillip R. Malone
`Counsel of Record
`JUELSGAARD INTELLECTUAL
`PROPERTY AND
`INNOVATION CLINIC
`MILLS LEGAL CLINIC AT
`STANFORD LAW SCHOOL
`559 Nathan Abbott Way
`Stanford, CA 94305
`(650) 725-6369
`pmalone@stanford.edu
`
`Counsel for Amici Curiae
`
`
`
`TABLE OF CONTENTS
`
`INTEREST OF AMICI CURIAE ................................. 1
`
`SUMMARY OF ARGUMENT ..................................... 5
`
`ARGUMENT ................................................................ 6
`
`I. This Case Is Exceptionally Important Because
`Full Access to the Law Is Fundamental. .............. 6
`
`A. Due Process and Democratic Principles
`Require Public Access to the Law. ................. 7
`
`B. People Who Use Assistive Technologies in
`Particular Require Access to the Law. .......... 9
`
`II. Existing Legal Uncertainty Hampers Legal
`Innovation and Lessens Competition. ................ 11
`
`A. Uncertainty Regarding Access to the Law
`Impairs Amici’s Ability to Innovate. ............ 12
`
`B. Lack of Uniformity Exposes Legal
`Innovators to Nationwide Suits. .................. 16
`
`C. Without Uniformity, Legal Threats and
`Lawsuits Against Innovators Will Recur. ... 18
`
`D. Legal Uncertainty Restrains Valuable
`Competition. ................................................. 21
`
`CONCLUSION .......................................................... 24
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Banks v. Manchester,
` 128 U.S. 244 (1888) ................................................. 8
`
`Bldg. Officials & Code Adm. v. Code Tech., Inc.,
` 628 F.2d 730 (1st Cir. 1980). .................................. 9
`
`Buckley v. Valeo,
` 424 U.S. 1 (1976) ..................................................... 7
`
`Code Revision Comm'n v. Public.Resource.Org,
`Inc.,
` 906 F.3d 1229 (11th Cir. 2018) ............................. 23
`
`Commil USA, LLC v. Cisco Sys.,
` 135 S. Ct. 1920 (2015) ............................................. 7
`
`Edy Clover Prods., Inc. v. Nat’l Broadcasting
`Co.,
` 572 F.2d 119 (3d Cir. 1978) .................................. 17
`
`Evergreen Media Holdings, LLC v. Warren,
` 105 F. Supp. 3d 192 (D. Conn. 2015) .................... 17
`
`FCC v. Fox Television Stations, Inc.,
` 567 U.S. 239 (2012) ................................................. 6
`
`Foreign Imported Prods. & Publ., Inc. v. Grupo
`Indus. Hotelero, S.A.,
` 2008 U.S. Dist. LEXIS 108705, at *1 (S.D.
`Fla. Oct. 24, 2008) .................................................. 17
`
`Papachristou v. City of Jacksonville,
` 405 U.S. 156 (1972) ................................................. 7
`
`Penguin Grp. (USA) Inc. v. American Buddha,
` 946 N.E.2d 159 (N.Y. 2011) .................................. 17
`
`
`
`iii
`
`Veeck v. S. Bldg. Code Cong. Int’l,
` 293 F.3d 791 (5th Cir. 2002) ................................... 8
`
`Statutes
`
`17 U.S.C. § 121 (2018) ............................................... 10
`
`28 U.S.C. § 1404 (2018) ............................................. 18
`
`Treatises
`
`17 James Wm. Moore et al., Moore's Federal
`Practice – Civil
` (3d ed. 2019) .......................................................... 17
`
`Other Authorities
`
`Brief of Next-Generation Legal Research
`Platforms as Amici Curiae In Support of
`Defendant/Appellant,
` Code Revision Comm'n v.
`Public.Resource.Org, Inc., 906 F.3d 1229 (11th
`Cir. 2018) (No. 17-11589-HH) ................................ 15
`
`Jill Schachner Chanen, Exclusive: Inside the
`New Westlaw, Lexis & Bloomberg Platforms,
` ABA Journal (Jan. 25, 2010, 3:00 AM),
`http://www.abajournal.com/news/article/exclu
`sive_inside_the_new_westlaw_lexis_bloomber
`g_platforms. ............................................................ 22
`
`Judge Kevin Burke, An Exciting Opportunity for
`Judges to Get Good, Solid Research,
` American Judges Association (May 16, 2017),
`http://blog.amjudges.org/?p=5968 .......................... 13
`
`
`
`iv
`
`Leslie Street & David Hansen, Official
`Publications of State Laws: Copyright Status
`and Terms of Use (Compiled with Status
`Current to August 2018),
` Mercer University Research, Scholarship,
`and Archives (Dec. 17, 2018, 2:36 PM),
`https://libraries.mercer.edu/ursa/handle/10898
`/9937 ....................................................................... 20
`
`Leslie Street & David R Hansen, Who Owns the
`Law? Why We Must Restore Public Ownership
`of Legal Publishing,
` 26 J. Intell. Prop. L. 205 (2019) .................... 14, 21
`
`Letter from Bradley R. Frazer, Hawley Troxell
`Ennis & Hawley LLP,
` to Carl Malamud, President & Founder,
`Public.Resource.Org (Aug. 14, 2013),
`https://law.resource.org/pub/us/code/id/id.gov.2
`0130814.pdf. ........................................................... 19
`
`Letter from Carl Malamud, President &
`Founder, Public.Resource.Org,
` to Hon. Scott Bedke, Speaker of the House,
`Idaho State Legislature (May 30, 2013),
`https://law.resource.org/pub/us/code/id/id.gov.2
`0130530.pdf. ........................................................... 19
`
`Letter from Larry A. Schemmel, Special
`Assistant Attorney General, State of
`Mississippi, to Carl Malamud, President &
`Founder, Public.Resource.Org (Oct. 7, 2013),
`https://law.resource.org/pub/us/code/ms/ms.go
`v.20131007.pdf. ...................................................... 20
`
`
`
`v
`
`LexisNexis Announces Acquisition of Ravel Law,
` LexisNexis (Jun. 8, 2017),
`https://www.lexisnexis.com/en-us/about-
`us/media/press-
`release.page?id=1496247082681222. .............. 15, 22
`
`Matt Shipman, White House Honors Sina
`Bahram as a “Champion of Change,” CSC
`News (May 7,
`2012), http://www.csc.ncsu.edu/news/1322 ............. 5
`
`Olufunmilayo B. Arewa, Open Access in a Closed
`Universe: Lexis, Westlaw, Law Schools, and
`the Legal Information Market,
` 10 Lewis & Clark L. Rev. 797 (2006).............. 21, 22
`
`Robert J. Derocher, Accessibility Matters:
`Experts and Lawyers With Disabilities Help
`Bars Find, Eliminate Barriers,
` American Bar Association (Jan. 11, 2018),
`https://www.americanbar.org/groups/bar_servi
`ces/publications/bar_leader/2017-18/january-
`february/accessibility-matters-experts-and-
`lawyers-with-disabilities-help-bars-find-
`eliminate-barriers/ ................................................. 10
`
`Stephen Rynkiewicz, Judicata Automated
`Review Scores Brief’s Lines of Attack,
` ABA Journal (Oct. 17, 2017, 4:19 PM),
`http://www.abajournal.com/news/article/judica
`ta_automated_review_scores_brief ......................... 1
`
`Tim Stanley, Cease, Desist & Resist: Oregon’s
`Copyright Claim on the Oregon Revised
`Statutes, Justia (Apr. 19, 2008),
`https://lawblog.justia.com/2008/04/19/cease-
`desist-resist-oregons-copyright-claim-on-the-
`oregon-revised-statutes. ......................................... 19
`
`
`
`vi
`
`U.S. Equal Opportunity Employment
`Commission, Reasonable Accommodations for
`Attorneys with Disabilities,
` https://www.eeoc.gov/facts/accommodations-
`attorneys.html (last updated Dec. 20, 2017) ........... 9
`
`
`
`
`
`
`
`INTEREST OF AMICI CURIAE
`
`1
`
`Amici are nonprofit and for-profit creators of next-
`generation legal research platforms and databases
`that provide innovative tools and services, and a
`digital accessibility researcher and advocate.1 The
`next-generation tools developed by amici dramatically
`improve the ways in which the public, courts, lawyers,
`and other users access, understand, and use the law.
`
`Amicus Judicata provides research and analytic
`tools to turn unstructured case law into structured
`and easily digestible data. Judicata’s color-mapping
`research tool highlights connections between cases
`and makes the law more accessible to both lawyers
`and nonlawyers. Its “Clerk” tool helps not only
`attorneys, but also pro se individuals, by reading and
`evaluating drafts of briefs across three dimensions,
`identifying quotation errors, and providing the user
`with “action items” and areas for improvement.
`Stephen Rynkiewicz, Judicata Automated Review
`Scores Brief’s Lines of Attack, ABA Journal (Oct. 17,
`2017,
`4:19 PM),
`http://www.abajournal.com/news/article/judicata_aut
`omated_review_scores_brief.
`
`Amicus Casetext is a legal technology company
`that provides information and research services to
`
`
`
`1 Parties’ counsel were given timely notice of amici’s intent to file
`this brief pursuant to Rule 37.2(a). The parties have consented to
`the filing of this brief. No counsel for a party authored this brief
`in whole or in part, and no party or counsel for a party made a
`monetary contribution intended to fund its preparation or
`submission. No person, other than amici or their counsel, made a
`monetary contribution to the preparation or submission of this
`brief.
`
`
`
`2
`
`litigators, leveraging artificial intelligence and the
`
`legal community’s expertise to provide equal access to
`justice. Its CARA software automates legal research
`tasks with artificial intelligence and machine-learning
`technologies to analyze litigation documents and
`algorithmically query federal and state law. Casetext’s
`CARA tool provides a user with relevant cases
`immediately after uploading a brief or complaint. The
`system automatically analyzes
`the document’s
`language to find relevant case law not cited in the
`original document that might otherwise be missing
`from traditional case law searches.
`
`is a nonprofit
`Amicus Free Law Project
`organization seeking to create a more just legal
`system. To accomplish that goal, Free Law Project
`provides free, public, and permanent access to primary
`legal materials on the Internet for educational,
`charitable, and scientific purposes. Its work empowers
`citizens to understand the laws that govern them by
`creating an open ecosystem for legal materials and
`research. Free Law Project also supports academic
`research by developing and providing public access to
`technologies useful for research.
`
`Amicus Fastcase2 is a legal technology company
`that provides tools to make research easier and more
`intuitive through complex search-data visualization.
`Thirty-two state bar associations make Fastcase’s
`legal research tools available to their members for
`free, and more than 900,000 American lawyers have
`
`
`
`2 Ed Walters, CEO of Fastcase, and Tim Stanley, CEO of Justia,
`are on Respondent’s Board of Trustees, but neither they nor their
`respective organization provided any funding towards the
`preparation of this brief nor authored it in whole or in part.
`
`
`
`3
`
`subscription access to the service. It also offers its
`
`research service through free mobile apps. Fastcase
`allows legal researchers to see suggested search terms
`through a case law map, provides unrestricted search
`results, suggests cases a researcher may have missed,
`and outlines case connections with an interactive
`timeline of case history. The integration of its visual
`timeline tool with search results quickly highlights the
`network of citations in judicial opinions and enables
`researchers to identify the most relevant cases
`immediately.
`
`Amicus Docket Alarm, owned by Fastcase, is a
`legal technology company that provides docket
`tracking and analytics for state and federal courts.
`Docket Alarm provides full-text search of briefs,
`pleadings, and motions culled from docket sheets, as
`well as predictive analytics for the Patent Trial and
`Appeal Board, federal courts, and state courts.
`Attorneys can also sign up to receive alerts on docket
`updates through Docket Alarm’s real-time tracking
`system.
`
`Amicus Internet Archive is a public nonprofit
`organization that was founded in 1996 to build an
`Internet
`library, with the purpose of offering
`researchers, historians, scholars, artists, and the
`general public permanent access
`to historical
`collections in digital format. The Internet Archive
`receives data donations and collects, records, and
`digitizes material from a multitude of sources,
`including
`libraries,
`educational
`institutions,
`government agencies, and private companies. The
`Internet Archive then provides free public access to its
`data, including text, audio, video, software, and
`archived web pages.
`
`
`
`4
`
` Amicus Justia works to advance the availability of
`legal resources for society. It is committed to making
`legal records free and easily available on the Internet.
`It provides Internet users with free case law, codes,
`regulations, legal articles, and other legal resources.
`Justia works with educational, public interest, and
`other organizations to make legal information easily
`available online.
`
`Amicus UniCourt is a legal technology company
`dedicated to organizing court records to make them
`universally accessible and useful. Leveraging the
`latest advances in machine learning, indexing, and
`other technologies, UniCourt provides attorneys,
`businesses, and consumers with access to case
`research (docket searching), case tracking, document
`downloads, legal analytics, and bulk access to court
`data through their Legal Data APIs. In addition to
`covering all U.S. Courts of Appeals, district courts, and
`bankruptcy courts, UniCourt also provides access to
`state court records.
`
`Amicus Sina Bahram is a digital accessibility
`researcher, inclusive design expert, and founder of
`Prime Access Consulting, Inc. (“PAC”), a company
`dedicated to making the world more inclusive and
`accessible to all people, independent of ability. An
`individual with vision-impairment himself, Mr.
`Bahram advocates for individuals with disabilities
`and organizations representing their interests, and
`has co-invented transformative solutions that allow
`access to online mathematics for persons with
`disabilities. He requires accessible access to the law as
`an expert witness and because of PAC’s role in helping
`clients become compliant with
`laws regarding
`accessibility and disability. Mr. Bahram has been
`
`
`
`5
`
`honored by the White House as a “Champion of
`
`Change” for his accessibility work. See Matt Shipman,
`White House Honors Sina Bahram as a “Champion of
`Change,”
`CSC
`News
`(May 7,
`2012),
`http://www.csc.ncsu.edu/news/1322. Persons with
`disabilities like Mr. Bahram and those for whom he
`advocates are severely
`impacted by copyright
`protection of the law because the resulting restricted
`access and formats often prevent the use of vital
`assistive technologies such as screen readers to render
`the law in an accessible manner.
`
`SUMMARY OF ARGUMENT
`
`The Court should grant certiorari because this
`case raises fundamental and exceptionally important
`issues regarding full access to the law. Uniform and
`consistent access to the law nationwide is an essential
`component of due process and the rule of law; everyone
`in our society must have fair and meaningful notice of
`conduct that is forbidden or required. Full access to,
`and knowledge of, the law is also essential for
`meaningful engagement in our democracy.
`
`Restricting access to the law by allowing copyright
`protection is irreconcilable with these basic principles.
`Limiting access harms
`the public and
`can
`disproportionately
`disenfranchise
`vulnerable
`populations. Copyright also hinders the valuable work
`being done by legal innovators, like amici, who create
`tools to inform and empower the public and everyone
`in the legal field. Amici’s innovative tools increase
`access to the law and to justice; they also improve the
`efficiency and quality of legal advocacy and legal
`services through an array of sophisticated new
`
`
`
`6
`
`research, distribution, visualization, and predictive
`
`analytics tools.
`
`As Petitioners note, there is currently uncertainty
`and lack of uniformity around whether the law can be
`copyrighted. Pet’rs’ Cert. Pet. 16. This uncertainty
`hampers amici’s development and use of legal access
`and research tools. It stymies valuable innovation and
`competition in an industry characterized by high
`concentration and limited options for users. The
`public, and legal innovators like amici, must be free to
`locate, access, use, transform, and distribute law in
`novel and innovative ways. But claims of copyright
`over the law have been, and will continue to be, made
`by states and publishers acting on their behalf. The
`continued unpredictable nature and outcome of such
`claims, due to ongoing legal uncertainty, will worsen
`existing accessibility barriers to legal information,
`hamper valuable innovation, and further reduce
`already limited competition in the legal information,
`research, and analytics industry.
`
`The Court should grant certiorari to eliminate
`this uncertainty and to establish,
`finally and
`uniformly, that the law cannot be copyrighted.
`
`ARGUMENT
`
`Important
`Is Exceptionally
`I. This Case
`Because Full Access
`to
`the Law
`Is
`Fundamental.
`
`Meaningful access to the law is critical to both due
`process and the rule of law. FCC v. Fox Television
`Stations, Inc., 567 U.S. 239, 253
`(2012)
`(“A
`fundamental principle in our legal system is that laws
`which regulate persons or entities must give fair
`
`
`
`7
`
`notice of conduct that is forbidden or required.”).
`
`Granting copyright protection to the law conflicts with
`our society’s engrained presumption that citizens
`must know the law, contravenes basic due process
`principles, and disproportionately disenfranchises
`vulnerable populations. Permitting copyright in the
`law contradicts the legal imperative of, and overriding
`public interest in, the right of full access to the law by
`everyone.
`
`A. Due Process and Democratic Principles
`Require Public Access to the Law.
`
`A fundamental tenet of the American legal
`system—that ignorance of the law is no excuse—
`assumes people can comply with the law and,
`necessarily, that they can access it in the first place.
`Commil USA, LLC v. Cisco Sys., 135 S. Ct. 1920, 1930
`(2015) (“[T]he general rule that ignorance of the law or
`a mistake of law is no defense to criminal prosecution
`is deeply rooted in the American legal system.”)
`(quoting Cheek v. United States, 498 U.S. 192, 199
`(1991)); Papachristou v. City of Jacksonville, 405 U.S.
`156, 162 (1972) (“Living under a rule of law entails
`various suppositions, one of which is that ‘[all persons]
`are entitled to be informed as to what the State
`commands or forbids.’”) (quoting Lanzetta v. New
`Jersey, 306 U.S. 451, 453 (1939)).
`
`In addition to promoting comprehension and
`compliance, open and unimpeded access to the law is
`also important for public engagement in a democracy.
`See Buckley v. Valeo, 424 U.S. 1, 49
`(1976)
`(“Democracy depends on a well-informed electorate.”).
`The public’s ability to read, possess, and understand
`the
`law
`is essential
`to both
`the effective
`administration of justice and to the core principles of
`
`
`
`8
`
`and
`transparency,
`participation,
`democracy:
`
`accountability. See Veeck v. S. Bldg. Code Cong. Int’l,
`293 F.3d 791, 799 (5th Cir. 2002) (“Citizens may
`reproduce copies of the law for many purposes, not
`only to guide their actions but to influence future
`legislation.”).
`
`Full access to the law is also critical to enable legal
`innovation. Innovators like amici use the latest
`computer science techniques such as artificial
`intelligence, machine learning, and natural language
`processing, to classify, store, analyze, and disseminate
`legal knowledge through new research and analytics
`products. These tools and databases empower
`constituents—including judges, attorneys, academics,
`researchers, litigants, and the public—to better
`understand and apply the law. Amici are committed to
`providing access to the law to everyone, consistent
`with this Court’s precedent that “the authentic
`exposition and interpretation of the law, which,
`binding every citizen, is free for publication to all,
`whether it is a declaration of unwritten law, or an
`interpretation of a constitution or a statute.” Banks v.
`Manchester, 128 U.S. 244, 253 (1888) (emphasis
`added).
`
`Allowing the law to be copyrighted, however,
`limits access, stifles competition in the legal research
`market, and hinders the development of tools that
`would improve both access to justice and the quality of
`advocacy. And it contravenes fundamental tenets of
`fair notice and due process. “[I]f access to the law is
`limited, then the people will or may be unable to learn
`of its requirements and may be thereby deprived of the
`notice to which due process entitles them.” Bldg.
`Officials & Code Adm. v. Code Tech., Inc., 628 F.2d
`
`
`
`9
`
`730, 734 (1st Cir. 1980). The public and legal
`
`innovators like amici must be permitted to freely
`access, use, transform, and distribute the law in novel
`and innovative ways.
`
`B. People Who Use Assistive Technologies
`in Particular Require Access to the Law.
`
`While full, free access to the law is vital for all
`members of the public, it is particularly important for
`individuals with disabilities, who may be especially
`vulnerable
`to disenfranchisement. People with
`disabilities are acutely affected by the substance of,
`and changes to, public safety, accessibility, and many
`other laws. For some persons with disabilities, full
`access means the very ability to engage in certain
`professions,
`including
`legal practice, regulatory
`compliance, etc. See, e.g., U.S. Equal Opportunity
`Employment
`Commission,
`Reasonable
`Accommodations
`for Attorneys with Disabilities,
`https://www.eeoc.gov/facts/accommodations-
`attorneys.html (last updated Dec. 20, 2017).
`
`Many individuals with disabilities rely on a
`variety of assistive technologies, such as screen-
`reading software, to exercise their fundamental right
`to access the law. But this technology depends on
`materials being both readily available electronically,
`and appropriately
`formatted with well-defined
`structural data. Any format that prohibits copying and
`pasting also prevents the creation of accessibility
`adaptations and translations. If the digital text of the
`law is unavailable in sufficiently open formats, or if
`the text is restricted by technical measures that block
`digital interaction (e.g., to prevent copying), assistive
`technology becomes
`impossible or prohibitively
`cumbersome to use. Persons with disabilities report
`
`
`
`10
`
`significant difficulty accessing legal materials and
`
`legal research tools. See Robert J. Derocher,
`Accessibility Matters: Experts and Lawyers with
`Disabilities Help Bars Find, Eliminate Barriers,
`American Bar Association
`(Jan. 11,
`2018),
`https://www.americanbar.org/groups/bar_services/pu
`blications/bar_leader/2017-18/january-
`february/accessibility-matters-experts-and-lawyers-
`with-disabilities-help-bars-find-eliminate-barriers/.
`
`Given these difficulties, Respondent and legal
`innovators like amici serve a critical role as sources of
`appropriately formatted law that is accessible by
`persons with disabilities. Respondent
`creates
`searchable, manipulable, and accessible versions of
`the
`law
`that are
`compatible with assistive
`technologies. In this case, Respondent made the
`OCGA available in formats that are fully accessible to
`all, including persons with disabilities who use screen
`readers and other assistive technologies. In contrast,
`the current version of the OCGA provided by Lexis is
`not accessible. When a person attempts to access the
`statutory text with his or her screen reader, he or she
`is unable to do so; when a button is actuated or boxes
`are checked, nothing happens for a screen reader to
`announce. There is also no obvious or even slightly
`nonobvious way to subsequently access the desired
`content.
`
`This case powerfully illustrates how copyright
`assertions over the law can be especially detrimental
`to persons with disabilities.3 Copyright restrictions
`
`
`
`3 The Chafee Amendment of 1996 is not a substitute for full
`access by innovators, legal providers, or the public at large. The
`
`
`
`
`11
`
`that prevent innovators like Respondent and amici
`
`from creating and distributing versions of the law in
`appropriately open formats, with properly-defined
`data, hampers or outright blocks access to the law by
`persons with disabilities. Moreover, such restrictions
`prevent persons with disabilities from designing and
`implementing their own solutions to transform the
`text of the law into accessible formats. The result will
`be that many people with disabilities will be precluded
`from accessing and understanding
`important
`elements of the law that govern and (perhaps
`disproportionately) affect them.
`
`II. Existing Legal Uncertainty Hampers Legal
`Innovation and Lessens Competition.
`
`lack of
`substantial uncertainty and
`The
`nationwide uniformity regarding the copyrightability
`of various aspects of the law, including state statutes
`and annotations, has created a significant chilling
`
`
`amendment allows an “authorized entity” to reproduce or
`distribute copies or phonorecords of previously published
`nondramatic literary works in specialized formats exclusively for
`use by blind or other persons with disabilities. But “authorized
`entity” is defined narrowly as any “nonprofit organization or a
`governmental agency that has a primary mission to provide
`specialized services relating to training, education, or adaptive
`reading or information access needs of blind or other persons with
`disabilities.” 17 U.S.C. § 121 (2018) (emphasis added). Thus, any
`legal technology or legal access entity with a mission broader
`than primarily providing services for persons with disabilities,
`and any for-profit organization, would fail to qualify under 17
`U.S.C. § 121. Nor is a possible fair use defense a substitute for
`full, copyright-free access to the law, given the inherently
`uncertain nature of fair use and the significantly greater risk
`posed by relying on it. Only consistent, ex-ante assurances that
`the law is not copyrightable will eliminate the chilling effects on
`access and innovation.
`
`
`
`12
`
`effect on innovation. Amici and other developers of
`
`innovative new legal tools are hampered in their
`efforts to improve access and understanding of the law
`for the public, lawyers, and courts.
`
`This lack of uniformity among the courts of
`appeals concerning copyrightability means that even
`if
`legal
`innovators can
`freely operate
`in one
`jurisdiction, they may still face risk of copyright
`infringement liability in another. For example, even
`though Respondent can now offer full and open access
`to the OCGA in the Eleventh Circuit, it may not be
`able to do so without fear of legal threats or suit in
`other circuits. This uncertainty may force legal
`innovators like amici and Respondent to defer
`expansion into other geographic jurisdictions or to
`limit their service coverage to only a certain subset of
`the law.
`
`Nationwide uniformity of copyright protection for
`state statutes and other law is essential for legal
`innovators to grow confidently and serve the public
`interest by improving access to the laws that govern
`our everyday
`lives. Without consensus,
`legal
`innovators cannot implement tools that dramatically
`transform the ways in which the public, courts, and
`lawyers access, understand, and use the law.
`
`A. Uncertainty Regarding Access to the
`Law Impairs Amici’s Ability to Innovate.
`
`Amici are creating innovative tools that bring the
`full range of modern research techniques, and
`associated access to information, to the legal sphere.
`Their mission depends on open access to the law in its
`complete, official form. Without full access to all state
`statutes and other
`law,
`the development of
`groundbreaking research tools, intended to increase
`
`
`
`13
`
`the overall efficiency and fairness of the law, has been
`
`impeded.
`
`For example, intelligent legal search tools include
`products like amicus Casetext’s CARA tool, which
`analyzes the language in a brief to find relevant but
`not yet included case law that traditional search
`techniques might miss. See Judge Kevin Burke, An
`Exciting Opportunity for Judges to Get Good, Solid
`Research, American Judges Association (May 16,
`2017), http://blog.amjudges.org/?p=5968 (CARA “can
`help judges and their clerks quickly find important
`case law that the parties may have overlooked.”).
`Casetext also provides free legal research services, a
`valuable public resource that is currently used by
`approximately one million people each month.
`
`To function effectively, however, CARA requires
`full access to the official, current legal corpus. CARA
`software builds on the Casetext research database,
`which grants all users access to a law library with both
`Federal and State law, annotated by experts. The
`current uncertainty around open access to legal data
`(and the use of such data) creates high barriers to
`entry as Casetext expands its services and seeks to
`become a true competitor in the legal research market.
`
`Tools developed by other amici also depend on
`having access to the law because their machine
`learning algorithms require a complete and accurate
`dataset to be fully effective. Amicus Judicata, for
`example, relies on Respondent’s legal corpus. Without
`access to these laws, Judicata would have been unable
`to build or refine its most innovative tools. Although
`Judicata’s legal research services are currently limited
`to California law, it plans to expand its geographical
`coverage soon. The uncertainty engendered by state
`
`
`
`14
`
`copyright assertions in official statutory code has
`
`inhibited Judicata’s growth.
`
`Similarly, some amici that aggregate court data
`have been forced to circumscribe their product
`offerings out of concerns over copyright claims. Amicus
`UniCourt, for example, decided not to expand court
`coverage and provide its users with access to Georgia
`state court records due to the chilling precedent of
`Georgia’s suit against Respondent (compounded with
`claims of copyright in Georgia’s court records by
`private providers granted exclusive publication
`rights). After conducting a 50-state survey to help
`determine which new state court systems to onboard,
`UniCourt specifically excluded Georgia to avoid the
`risk of copyright infringement suit. Other innovators
`may find themselves similarly forced to defer adding
`coverage of a jurisdiction so long as concerns about
`copyrightability persist.
`
`the
`struggle with
`innovators also
`Other
`uncertainty surrounding copyrightability. Lack of a
`consistent rule prevents amicus Free Law Project from
`collecting and freely distributing not just all U.S.
`Court opinions, but all statutes and annotations, as
`well. The public, attorneys, and litigants often require
`past versions of codes to understand the law that
`governed at the time a contract became effective, when
`a conviction was entered, etc. Leslie Street & David R.
`Hansen, Who Owns the Law? Why We Must Restore
`Public Ownership of Legal Publishing, 26 J. Intell.
`Prop. L. 205, 206 (2019). Ensuring that statutes, and
`associated annotations, including previous versions,
`are openly available to the public, would help scholars,
`lawyers, and judges track this evolution over time.
`However, to do so, one would have to reproduce and
`
`
`
`15
`
`distribute not just one copy of a state’s statutes, but
`
`every historical version in its entirety. The possibility
`of copyright assertions creates crippling risk for a
`small non-profit—indeed, it has deterred Free Law
`Project from ever posting state statutes.
`
`Another legal innovator, Ravel, provides powerful
`research and analytics tools including case law maps,
`language technology that identifies key passages in
`cases, and judge, court, motion, and law firm analytics
`that shed light on how often judges and courts grant
`roughly one hundred different motions, as well as the
`cases, courts, and language that judges commonly cite
`and use in their opinions. Ravel previously described,
`in an amicus brief it joined in this case before the
`Eleventh Circuit, how it was “depend[ent] on having
`access to comprehensive, authoritative, and up-to-date
`primary legal information—especially statutes and
`case law.” Brief for Next-Generation Legal Research
`Platforms
`as
`Amici
`Curiae
`Supporting
`Defen