`
`In the
`Supreme Court of the United States
`
`GEORGIA, et al.,
`
`v.
`
`Petitioners,
`
`PUBLIC.RESOURCE.ORG, INC.,
`
`Respondent.
`
`On Writ Of CertiOrari tO the United StateS COUrt
`Of appealS fOr the eleventh CirCUit
`
`BRIEF OF AMICI CURIAE 116 LAW LIBRARIANS
`AND 5 LAW LIBRARY ORGANIZATIONS
`IN SUPPORT OF RESPONDENT
`
`On the Brief:
`leslIe a. street
`WIllIam & mary
`sChool of laW*
`613 South Henry Street
`Williamsburg, VA 23185
`
`davId r. hansen
`duKe unIversIty*
`411 Chapel Drive
`Durham, NC 27708
`
`October 16, 2019
`
`Kyle K. Courtney
`Counsel of Record
`harvard unIversIty*
`One Harvard Yard
`Widener Library G-20
`Cambridge, MA 02138
`(617) 495-4089
`kyle_courtney@harvard.edu
`
`Counsel for Amici Curiae
`
`* Institutions are listed for
`identification purposes only.
`
`291697
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`i
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
`
`INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . .1
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .3
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`I. PRINCIPLES OF DUE PROCESS
`AND THE RULE OF LAW REQUIRE
`MEA NINGFUL PUBLIC ACCESS
`TO OFFICIAL VERSIONS OF “THE
`LAW” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`
`
`A. Official versions of codes are published
`under the authority of the state and
`carry special weight as evidence of
`legislative enactments. . . . . . . . . . . . . . . . . . .8
`
`
`
`B. The Official Code of Georgia Annotated
`is the only official version of the code
`of Georgia, and as a matter of due
`process, residents and those affected
`by the laws of Georgia have a right
`to access it. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`ii
`
`II. “THE LAW” IS INSEPARABLE FROM
`THE OFFICIAL, AUTHORITATIVE
`LEGAL PUBLICATIONS IN WHICH
`IT IS PUBLISHED . . . . . . . . . . . . . . . . . . . . . . .12
`
`
`
`III. COPYRIGHT OF OFFICIAL LEGAL
`P U BL IC A T ION S F RU S T R A T E S
`PRINCIPLES OF DUE PROCESS
`A N D D OE S NO T S ER V E T H E
`PURPOSES OF COPYRIGHT LAW . . . . . . . .16
`
`
`
`A. The expansive control that copyright
`owners wield is incompatible with the due
`process interests of the public in access to
`and use of official legal publications. . . . . .16
`
`
`
`B. Granting Exclusive Rights in the
`OCGA Does Not Serve the Purposes
`of Copyright . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
`
`APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
`
`Table of Contents
`
`Page
`
`
`
`iii
`
`CASES
`
`Banks v. Manchester,
`
`128 U.S. 244 (1888). . . . . . . . . . . . . . . . . . . . . . . . .20, 21
`
`Bldg. Officials & Code Adm. v. Code Tech., Inc.,
`
`628 F.2d 730 (1st Cir. 1980) . . . . . . . . . . . . . . . . . . .5, 18
`
`Bounds v. Smith,
`
`430 U.S. 817 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
`
`Callaghan v. Myers,
`
`128 U.S. 617 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . 19-20
`
`CompuServe, Inc. v. Patterson,
`
`89 F.3d 1257 (6th Cir. 1996). . . . . . . . . . . . . . . . . . . . .17
`
`Cox Broad. Corp. v. Cohn,
`
`420 U.S. 469 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
`
`Davidson v. Wheelock,
`
`27 F. 61 (C.C.D. Minn. 1866) . . . . . . . . . . . . . . . . . . . .20
`
`Ford Motor Co. v. Abercrombie,
`
`62 S.E.2d 209 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . .15
`
`Fox Film Corp. v. Doyal,
`
`286 U.S. 123 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`Georgia v. The Harrison Co.,
`
`548 F. Supp. 110 (N.D. Ga 1982) . . . . . . . . . . . . . . . . .11
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`iv
`
`Harper & Row Publishers, Inc. v.
`Nation Enterprises,
`471 U.S. 539 (1985). . . . . . . . . . . . . . . . . . . . . . . . .16, 19
`
`
`
`Hill v. Gateway 2000, Inc.,
`
`105 F.3d 1147 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . .17
`
`Howell v. Miller,
`
`91 F. 129 (6th Cir. 1898) . . . . . . . . . . . . . . . . . . . . . . . .20
`
`In re Appeal of Tenet HealthSystems
`Bucks County, LLC,
`880 A.2d 721 (Pa. Super. 2005). . . . . . . . . . . . . . . . . .10
`
`
`
`Mazer v. Stein,
`
`347 U.S. 201 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
`
`Nash v. Lathrop,
`
`6 N.E. 559 (Mass. 1886). . . . . . . . . . . . . . . . . . . . . .5, 20
`
`Peterson v. Peterson,
`
`156 Idaho 85 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`Petrick v. Maynard,
`
`11 F.3d 991 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . .7
`
`Shuman v. State,
`
`358 So. 2d 1333 (Fl. 1978) . . . . . . . . . . . . . . . . . . . . . . .9
`
`State v. Boecker,
`
`893 N.W.2d 348 (Minn. 2017) . . . . . . . . . . . . . . . . . . . .9
`
`Cited Authorities
`
`Page
`
`
`
`v
`
`Stephan v. United States,
`
`319 U.S. 423 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`Stewart v. Abend,
`
`495 U.S. 207 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`Texaco, Inc. v. Short,
`
`454 U.S. 516 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`United States National Bank of Oregon v.
`Independent Insurance Agents of America, Inc.
`508 U.S. 439 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`
`
`West Publishing Co. v. Mead Data Central, Inc.,
`
`799 F.2d 1219 (8th Cir. 1986). . . . . . . . . . . . . . . . . . . .14
`
`Wheaton v. Peters,
`
`33 U.S. 591 (1834) . . . . . . . . . . . . . . . . . . . . . . . . . .20, 21
`
`STATUTES AND OTHER AUTHORITIES
`
`U.S. Const. Art. 1, Cl. 8 § 8 . . . . . . . . . . . . . . . . . . . . . . .19
`
`1 U.S.C. § 204(a) (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`17 U.S.C. § 101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`17 U.S.C. § 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`17 U.S.C. § 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
`
`Cited Authorities
`
`Page
`
`
`
`vi
`
`17 U.S.C. § 501(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
`
`17 U.S.C. § 503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
`
`17 U.S.C. § 506(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
`
`11th Circ. R. 28-1(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`Act of Mar. 3, 1817, ch. 63, 3 Stat. 376. . . . . . . . . . . . . . .20
`
`Am. Ass’n Of Law Libraries, Law Libraries and
`Access To Justice: A Report of the American
`Association of Law Libraries Special
` Committee on Access to Justice (July 2014) . . . . . . . .7
`
`American Association of Law Libraries, Law
` Libraries and Access to Justice, (July 2014) . . . . . . .2
`
`Ark. Code. Ann. § 1-2-102 (2019) . . . . . . . . . . . . . . . . . .10
`
`Craig A. Joyce, The Rise of the Supreme Court
`Reporter: An Institutional Perspective
`on Marshall Court Ascendency, 83 Mich.
` L. Rev. 1291 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . .20
`
`Craig Joyce, A Curious Chapter in the History of
`Judicature: Wheaton v. Peters and the Rest of
`the Story (of Copyright in the New Republic),
`42 Hous. L. Rev. 325 (2005) . . . . . . . . . . . . . . . . . . . .20
`
`
`
`Cited Authorities
`
`Page
`
`
`
`vii
`
`Ga. Code Ann. § 1-1-1 (2019) . . . . . . . . . . . . . . . . . . .11, 12
`
`Ga. Code Ann. § 1-3-1 (2018) . . . . . . . . . . . . . . . . . . . . . .15
`
`J. Walter Clark, History of the Supreme Court
`Repor ts of Nor th Carolina and of the
` Annotated Reprints, 22 N.C. 11 (1921) . . . . . . . . . . .21
`
`Leslie A. Street & David R. Hansen, Who
`Owns the Law? Why We Must Restore
`Public Ownership of Legal Publishing, 26 J.
`Intell. Prop. L. 205 (2019) . . . . . . . . . . . . . . . . . . . 12-13
`
`
`
`“ L et t e r f r om Ja me s M a d i s on t o W.T.
`Barry” (Aug. 4, 1822), in 9 Writings of
` James Madison 103 (G. Hunt ed. 1910) . . . . . . . . . . . .6
`
`Mary W hisner, The United States Code,
`Prima Facie Evidence, and Positive Law,
`101 Law Libr. J. 545 (2009) . . . . . . . . . . . . . . . . . . . . . .9
`
`
`
`Olufunmilayo B. Arewa, Open Access in a
`Closed Universe, 10 Lewis & Clark L.
` Rev. 797 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 15
`
`R o s c o e Po u n d , T h e o r i e s o f t h e L a w,
`
`22 Yale L.J. 114 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`Ryan Metheny, Improving Lives by Building
`Social Capital: A New Way to Frame the Work
`of Law Libraries, 109 Law Libr. J. 631 (2017) . . . . . .1
`
`
`
`Cited Authorities
`
`Page
`
`
`
`viii
`
`Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
`
`“The Bluebook: A Uniform System of Citation”
`
`248, T.1.3 (20th Ed. 2015) . . . . . . . . . . . . . . . . . . . . . .11
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`Amici curiae are law library associations, individual
`law librarians from county, state, federal, and academic
`law libraries, and professors of law. These many amici
`share a common view that open, equitable, and effective
`access to official legal information is a fundamental right,
`superior to copyright. We also share the lived experience
`of knowing that access to official published law can be
`rendered meaningless if interspersed copyrighted content
`can be used to limit access and use of the whole work. We
`ask the Court to find that if a state publishes binding law
`in a publication it designates as official, as Georgia has
`done here, the official status of that publication should
`override any competing copyright interest in ancillary
`material that might otherwise be protected if included in
`another type of publication.
`
`Amici rely on unrestricted access to the text of the
`official law as designated by the states, including Georgia,
`to give effect to our collective missions of facilitating equal
`and equitable access to legal information, serving legal
`professionals as well as the general public who both govern
`and are governed through the law. See Ryan Metheny,
`Improving Lives by Building Social Capital: A New Way
`to Frame the Work of Law Libraries, 109 Law Libr. J. 631
`(2017). For this mission, we rely on full access and reuse
`of official legal texts for purposes such as conducting and
`supporting legal research and scholarship, teaching legal
`research, and preserving state legal materials.
`
`1. Counsel for the parties have consented to this brief. Under
`Rule 37.6, amici affirms that no counsel for any party authored
`this brief in whole or in part, and no person other than amici or its
`counsel made a monetary contribution to fund the preparation or
`submission of this brief.
`
`
`
`2
`
`While legal professionals and the public rely on
`unrestricted access to the law in order to fulfill their
`legal obligations and participate in democratic self-rule,
`the present amici have a special and vital need for open,
`unencumbered access to the official copies of the law in
`order to fulfill their mission. Claims of copyright asserted
`over official legal texts inhibit our ability to bridge the
`gap for many who need meaningful access to the law by
`imposing artificial cost and use restrictions. Copyright
`can be wielded to control basic library services such as
`reproducing copies for users, or public distribution or
`public display of official copies of the law online for remote
`access. In the face of such restrictions, notwithstanding
`the best efforts of law libraries, our ability to meet the
`needs of the public is compromised.
`
`As part of our mandate, amici also note that the
`number of pro se patrons interacting with the legal
`system continues to grow rapidly. For many of these pro se
`litigants, who generally do not have any legal aid available
`to them, any additional financial restriction is extremely
`burdensome, including fees to view official law publications
`levied by commercial publishers such as RELX, the parent
`company of the publisher of the Official Code of Georgia
`Annotated (“OCGA”). Law libraries around the United
`States are reporting that the number of these pro se litigants
`requiring access to legal texts is increasing. See American
`Association of Law Libraries, Law Libraries and Access to
`Justice, (July 2014), https://www.aallnet.org/wp-content/
`uploads/2018/01/AccessToJusticeSpecialCommittee2014
`LawLibrariesAndAccessToJustice.pdf (last visited Sept.
`30, 2019). Those pro se patrons do not have an organization
`to represent them before the court, but given their
`heavy reliance on law libraries for access to the official
`
`
`
`3
`
`publications such as the OCGA, we present views that we
`believe are also representative of their needs.
`
`SUMMARY OF ARGUMENT
`
`Due process and the rule of law require that the public
`has meaningful access to “the law.” Every major modern
`society since the Greeks has recognized the importance
`of this principle. Roscoe Pound, Theories of the Law, 22
`Yale L.J. 114, 117 (1912).
`
`In the United States, “the law” largely comes from
`appellate courts, legislatures, and administrative agencies
`who have been granted rule-making authority. As every
`first year law student learns, those law-making bodies
`have developed highly specific methods for communicating
`their pronouncements of law through official publications,
`such as the Official Code of Georgia Annotated (“OCGA”).
`
`Those specific methods and their resulting official
`publications serve a number of important functions that
`are intrinsic to the underlying purpose of supporting
`democracy and of fair notice of the law. Official publications
`of the law assure the reader of the reliability and currency
`of the text, as well as its acceptance for use in other parts
`of the legal system, such as for citation before a court.
`Access to official publications is also critical for conducting
`and supporting legal scholarship, teaching legal research,
`preserving state legal materials, and providing equal and
`equitable access to legal information. A critical feature
`that enables those uses is that the government has
`identified the publication as holding special weight as an
`official, authoritative source.
`
`
`
`4
`
`The major point of this brief is that when a state
`gives official status to a publication containing binding
`legal pronouncements, the contents of the whole of that
`publication must be freely and fully accessible by the
`public. Assertion of copyright over even portions of the
`publication effectively renders access and use of the core
`statutory text meaningless. In addition to the logistical
`difficulties of disentangling binding edicts of law from
`ancillary materials published with it, if the publication
`must be disassembled into its component parts for reuse--
`annotations protected and filtered out, while the statutory
`text may be copied--the remaining pieces are no longer
`the “official” publication and unusable for their intended
`purpose. A state should not be allowed to assert the
`broad and powerful coercive rights granted by copyright
`over an official publication of law by interweaving
`clearly uncopyrightable edicts of law with otherwise
`copyrightable ancillary materials, such as annotations.
`Granting copyright protection over even portions of the
`OCGA would harm law librarians and by extension the
`public, while granting a windfall to publishers and states
`who should need no copyright incentive to fulfill their
`constitutional obligation to publish official copies of their
`laws. Accordingly, this Court should affirm the decision
`of the 11th Circuit.
`
`ARGUMENT
`
`I. PRINCIPLES OF DUE PROCESS AND THE
`RULE OF LAW REQUIRE MEANINGFUL
`PUBLIC ACCESS TO OFFICIAL VERSIONS OF
`“THE LAW”
`
`The U.S. Constitution demands that the public have
`notice of and access to the law. “Every citizen is presumed
`
`
`
`5
`
`to know the law thus declared, and it needs no argument to
`show that justice requires that all should have free access
`to the opinions, and that it is against sound public policy
`to prevent this, or to suppress and keep from the earliest
`knowledge of the public the statutes or the decisions and
`opinions of the justices.” Nash v. Lathrop, 6 N.E. 559, 560
`(Mass. 1886).
`
`Despite “not needing an argument,” courts have
`supported this principle as a basic requirement of due
`process:
`
`Due process requires people to have notice
`of what the law requires of them so that they
`may obey it and avoid its sanctions. So long as
`the law is generally available for the public to
`examine, then everyone may be considered to
`have constructive notice of it; any failure to
`gain actual notice results from simple lack of
`diligence. But if 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
`730, 734 (1st Cir. 1980).
`
`While binding edicts of law are a particularly
`important type of legal publication, this court has also
`held in a number of cases, particularly with regard to
`judicial proceedings, but also in other contexts, that
`the public has certain rights to access and use other
`legal documents and related government publications
`as well. This tradition has a long history rooted in the
`
`
`
`6
`
`idea of democratic government. See “Letter from James
`Madison to W.T. Barry” (Aug. 4, 1822), in 9 Writings
`of James Madison 103 (G. Hunt ed. 1910) (“A popular
`Government, without popular information, or the means
`of acquiring it, is but a Prologue to a Farce or a Tragedy;
`or, perhaps both.”). The basic principle of access is driven
`by the idea that citizens have a right to interact freely
`with the output of their government in order to properly
`govern themselves. For example, “[t]he freedom of the
`press to publish that information appears to us to be of
`critical importance to our type of government in which
`the citizenry is the final judge of the proper conduct of
`public business. In preserving that form of government
`the First and Fourteenth Amendments command nothing
`less than that the States may not impose sanctions on the
`publication of truthful information contained in official
`court records open to public inspection.” Cox Broad. Corp.
`v. Cohn, 420 U.S. 469, 495 (1975).
`
`While records such as court documents and other non-
`binding legal materials must be freely publishable and
`accessible without threat of liability, much more so is the
`need for the public to access official legal publications that
`are primarily composed of binding law. For law libraries
`in particular, copyright over official publications raises
`the prospect of liability for everything from everyday
`uses such as providing individual copies for lawyers,
`to emerging uses such as digital access through online
`library portals that allow law libraries to bring the text
`of the law to many more users who are homebound,
`disabled, or without resources to travel to a physical law
`library. While law libraries have long served a variety
`of constituencies, their mission has recently emphasized
`a focus on those historically excluded from access to
`
`
`
`7
`
`justice. See Am. Ass’n Of Law Libraries, Law Libraries
`and Access To Justice: A Report of the American
`Association of Law Libraries Special Committee on
`Access to Justice (July 2014), http://www.aallnet.org/mm/
`Publications/products/atjwhitepaper.pdf. For example,
`although they do not have their own national association,
`prison law libraries play a major role in access to the
`legal system for those who are incarcerated. In fact,
`courts have stated that the “Due Process Clause of the
`Fourteenth Amendment guarantees state inmates the
`right to ‘adequate, effective, and meaningful’ access to
`the courts.’” Petrick v. Maynard, 11 F.3d 991, 994 (10th
`Cir. 1993) (quoting Bounds v. Smith, 430 U.S. 817, 822
`(1977)). The guarantee of this court access is satisfied
`“by providing prisoners with adequate law libraries or
`adequate assistance from persons trained in the law.”
`Bounds, 430 U.S. at 828. The logical prerequisite to this
`guarantee of access is that law libraries themselves must
`be able to provide access to official copies of the law to
`their users. This includes access to related materials such
`as notes, commentary, and other useful annotations that
`are created or commissioned by the government as part
`of the “official” code. Law libraries have long worked to
`overcome the many natural barriers that exist for users
`to access these materials--for example, printing physical
`copies of law books is costly, and access to the internet
`is not free--but requiring law libraries to also tackle
`artificial legal barriers, such as copyright, that are erected
`solely for economic profit is incompatible with the spirit
`and principle of the rule of law and of due process.
`
`In this case, the state of Georgia seeks the right to
`hold users of the OCGA liable for copyright infringement
`by asserting that because parts of the official publication
`
`
`
`8
`
`are copyrighted, copying of the whole of the OCGA is
`impermissible. The Constitutional bar for adequate
`access to the law is not high--legislatures must do
`“nothing more than enact and publish the law,” Texaco,
`Inc. v. Short, 454 U.S. 516, 532 (1982)--and so states
`are free to adopt a variety of ways to communicate the
`law’s requirements. Indeed, states differ significantly in
`their approach to statutory publications, codifications,
`and the weight and authority they vest with either type
`of publication. However, when a state makes a choice
`to imbue a particular publication with special “official”
`status, authority, and evidentiary weight, it should not also
`be permitted to threaten its citizens and other members
`of the public with serious legal liability when they freely
`reuse that publication, regardless of whether the state
`includes in the publication materials such as annotations,
`that would otherwise be copyrightable if published in
`another publication.
`
`A. Official versions of codes are published under
`the authority of the state and carry special
`weight as evidence of legislative enactments.
`
` When a state designates a legal publication as
`“official,” that designation is important, often carrying
`with it significance as a matter of reliability and its use
`as evidence of legislative enactments. As legislation is
`created, copies emanate into the world with a variety
`of legal statuses. The original session law is, in many
`states, viewed as the canonical text--perfect evidence of
`the legislative enactment--while other publications of the
`law, such as an official statutory codification, are afforded
`
`
`
`9
`
`their own special evidentiary status.2 Yet other versions,
`such as commercial editions published by an independent
`publisher, or free but unverified electronic copies, carry
`no special evidentiary weight.
`
`For example, the majority of the subject-based
`codification of the official United States Code is viewed
`by the courts as “prima facie evidence that the provision
`has the force of law.” See United States National Bank of
`Oregon v. Independent Insurance Agents of America, Inc.
`508 U.S. 439 (1993); see also 1 U.S.C. § 204(a) (2018). These
`distinctions are a matter of law. See Stephan v. United
`States, 319 U.S. 423 (1969) (stating that “the very meaning
`of ‘prima facie’ is that the Code cannot prevail over the
`Statutes at Large when the two are inconsistent.”).
`
`This issue of what constitutes evidence of “the law”
`has also been litigated at the state level in states like
`Minnesota, Idaho, and Florida with courts in those states
`pointing out that while their codes are not the canonical
`“laws themselves,” they are given special status by
`providing prima facie evidence of it. See State v. Boecker,
`893 N.W.2d 348, 353 (Minn. 2017). See also Peterson v.
`Peterson, 156 Idaho 85, 89-90 (2014); Shuman v. State, 358
`So.2d 1333, 1338 (Fl. 1978). Although the issue has not been
`litigated frequently, at least one state appellate court has
`pointed out the difference in an official legal publication
`versus an unofficial one—in this case, one produced by a
`
`2. In some states and for portions of the United States Code,
`legislatures have reenacted statutory codifications as “positive law,”
`transforming those portions of the code from prima facia evidence
`of the law into enacted, perfect fidelity copies of the law itself. See
`Mary Whisner, The United States Code, Prima Facie Evidence, and
`Positive Law, 101 Law Libr. J. 545 (2009).
`
`
`
`10
`
`commercial third-party, West Publishing Company—by
`explaining that unofficial statutory compilations do not
`become the official version of the law just by the practice
`of the bar or courts, and thus unofficial codifications are
`not law that should be cited in courts. In re Appeal of
`Tenet HealthSystems Bucks County, LLC, 880 A.2d 721,
`725-726 (Pa. Super. 2005). Distinctions between official
`and unofficial versions of the law matter, and thus the
`public’s right to access official versions of annotated codes
`should not be conflated with their right to access unofficial
`annotated codes. If litigants are left only with unimpeded
`access to unofficial publications of the law, they rely on
`the law at their own peril.
`
`Not every state chooses to officially codify their law.
`For example, Virginia does not officially codify its laws,
`with the Acts of Assembly forming the “official law of
`the Commonwealth.” The Executive Committee of the
`Virginia Code Commission, http://codecommission.dls.
`virginia.gov/code-of-virginia-codification-policies.shtml
`(last visited September 6, 2019). In other states, like
`Arkansas, and in this case, Georgia, states not only codify,
`but enact the codification as law. See Ark. Code. Ann.
`§ 1-2-102 (2019). When states chose to officially codify, then
`those codifications become law and the state should not be
`permitted to burden core rights of access to that law by
`interspersing copyrighted additions and then asserting
`that the whole is then copyrighted.
`
`
`
`11
`
`B. The Official Code of Georgia Annotated is the
`only official version of the code of Georgia, and
`as a matter of due process, residents and those
`affected by the laws of Georgia have a right to
`access it.
`
`In Georgia’s case, the Official Code of Georgia is
`the “legal evidence of laws” as it is codified as positive
`law. OCGA § 1-1-1 (2019). The Official Code of Georgia
`Annotated is both published under the official authority
`of the state (under state seal) and as the official text of
`statutory law in Georgia. All litigants in Georgia courts
`are required, by law, to cite to the Official Code of Georgia.
`In 1982, the U.S. District Court for the Northern District
`of Georgia indicated that anyone citing the non-official
`version of the Georgia Code “will do so at his own peril
`if there is any inaccuracy in that publication or any
`discrepancy.” Georgia v. The Harrison Co., 548 F. Supp
`110, 117 (N.D.Ga 1982). The State of Georgia is not the only
`legal entity that demands access and citation to the OCGA.
`The 11th Circuit similarly requires litigants to cite to the
`OCGA, via incorporation by reference of “The Bluebook: A
`Uniform System of Citation,” which requires that litigants
`cite to the current official statutory code currently in force.
`11th Circ. R. 28-1(k). See also “The Bluebook: A Uniform
`System of Citation” 248, T.1.3 (20th Ed. 2015) (“[c]ite to
`Ga. Code Ann. (published by LexisNexis), if therein.”).
`
` Indeed, the first statute in the OCGA proclaims
`the OCGA as the only official version of the statutory
`code in the state of Georgia, “The statutory portion of
`the codification of Georgia laws prepared by the Code
`Revision Commission and the Michie Company pursuant
`to a contract entered into on June 19, 1978, is enacted and
`
`
`
`12
`
`shall have the effect of statutes enacted by the General
`Assembly of Georgia.” OCGA § 1-1-1 (2019). The statutory
`text goes on to make clear, “The statutory portion of
`such codification shall be merged with annotations,
`captions, catchlines, history lines, editorial notes, cross-
`references, indices, title and chapter analyses, and other
`materials pursuant to the contract and shall be published
`by authority of the state pursuant to such contract and
`when so published shall be known and may be cited as the
`‘Official Code of Georgia Annotated.’” Id. Thus, the statute
`makes clear two principles: First, that the OCGA is the
`only official version of the law and second, that the OCGA
`only exists as published under contract to include also
`annotations, captions, catchlines, history lines, editorial
`notes, cross-references, indices, title and chapter analysis,
`etc. Without these parts, there is no “official” version of
`the OCGA. So, for example, the free version of the Georgia
`Code that the state of Georgia makes available through
`Lexis’s website is not official, cannot be cited in court, and
`cannot be relied upon in courts by the public. Unless the
`official version of the law, the OCGA, is available for use
`without encumbrance, Georgia fails in its responsibilities
`to ensure that its citizens have access to the law.
`
`II. “ T H E L AW ” I S I N SEPA R A BL E F ROM
`THE OFFICIAL, AUTHORITATIVE LEGAL
`PUBLICATIONS IN WHICH IT IS PUBLISHED
`
`The documents that make up a published law
`are evocative because they communicate to readers
`information about three key attributes, “officialness,
`authenticity and authority,” that assure users that the
`document they are accessing is actually “the law.” Leslie A.
`Street & David R. Hansen, Who Owns the Law? Why We
`
`
`
`13
`
`Must Restore Public Ownership of Legal Publishing, 26 J.
`Intell. Prop. L. 205, 210 (2019). All of these characteristics
`are particularly important in the legal process.
`
`However, of these three characteristics, the “official”
`factor is the most critical for law libraries to continue to
`provide free, non-discriminatory, unencumbered access to
`the complete official law to their patrons. Interference with
`access to official texts comes in many forms: the process
`of licensing materials itself is frequently burdensome on
`important uses. Even just understanding and negotiating
`license terms can take significant time and expertise.
`Furthermore, access to contractual restrictions and
`high fees mean that law libraries are often not positioned
`to provide materials in their collections on the terms
`patrons need to have meaningful access to the law. These
`interferences with access stem directly from one greater
`risk, which is the focus of the present case: allowing the
`government to copyright the official law.
`
`If copyright in an official code is allowed, the law has
`the potential to be frustratingly split up into different
`parts, further confusing the purpose of the “official”
`status and interfering with legitimate access and use.
`If the government splits official legal publications into
`protectable and unprotectable elements, this divided
`text can no longer be called “official.” If it is not official,
`it can not be used or cited by legal researchers in the
`courts. It is also disfavored for use in legal scholarship, for
`teaching legal research, and for preservation purposes. In
`addition, allowing copyright to protect these official legal
`publications can have long term ramifications for access,
`technology, and innovation. This action will restrict those
`entities - whether the present amici at law libraries, but
`
`
`
`14
`
`also public libraries, prison libraries, legal publishers,
`legal technology innovators, or the general public - from
`providing access to others who lack the means to comply
`with the copyright owner’s demands. When official sources
`of the law are not burdened with copyright, anyone,
`including law libraries, can take the law and make it easier
`for people to use and find. Those critical functions simply
`cannot be accomplished when the law is copyrighted.
`
`An element of this same risk was laid out clearly in an
`earlier case involving a legal publisher. West Publishing
`previously prepared the books of the National Reporter
`System and the page citations they created became
`a fundamental requirement in legal citation. In West
`Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219
`(8th Cir. 1986), Lexis, a relative newcomer to the legal
`publication market at the time, sought to create their
`own database of case law, including “star pagination,”
`which was a unique method of corresponding to each page
`number in W