Who owns the law is one of the most pressing unanswered questions in American jurisprudence. Is the full extent of our laws, from cases to statutes, codes, and regulations, subject to copyright protection? Or should all our laws reside in the public domain and remain free to access, download, interpret, study, analyze, and use?
Though to some it may seem like a mere technicality, this question hinges on the fundamental right of access to justice. If we extend copyright protections to our laws, states are free to restrict access to those laws, whether statutes, judicial opinions, or even the background elements of cases like pleadings and motions. What naturally follows is the absurd conclusion that citing the law in briefs can be deemed an infringing use.
Whether the law is copyrightable affects the public, lawyers, judges, law students, professors, legal scholars, innovators, tech startups, and others who rely regularly on access to the law to pioneer important changes and innovations in the legal field. If the law is copyrightable, and legal professionals, legal technology companies, and academics are restricted from publishing the law freely, it greatly hinders the public’s ability to learn about and more meaningfully interact with the American legal system.
The History of Copyrighting the Law
Although today’s practitioners are largely accustomed to it, it was never a foregone conclusion that case law and statutes could be shared freely, and republished from official sources and court reporters. Throughout the last century, publishers, think tanks, and private companies have attempted to assert ownership of the law.
In Wheaton v. Peters, an 1834 case arising from a dispute between the official reporter of SCOTUS decisions (Richard Peters) and the previous reporter (Henry Wheaton), the Supreme Court first considered the limited scope of copyright protection. In the dispute underlying the case, Peters began to publish “condensed reports” of cases decided during Wheaton’s tenure as the reporter, and Wheaton sued, arguing that as the author of these condensed reports, he was entitled to perpetual property rights in them.
The Court ruled that since the foundational copyright law, the Statute of Anne, authors were deemed to have a limited, rather than perpetual, copyright in their works. The Court clarified that copyright protections exist solely to serve the public interest in promoting the creation of new literary, scientific, and other works, instead of securing perpetual protection for authors. The majority opinion in Wheaton marked the beginning of the end of authors’ attempts to make their works perpetually copyrightable, starting with judicial opinions. As the Court noted, “No reporter of the decisions of the Supreme Court has, nor can he have, any copyright in the written opinions delivered by the Court, and the Judges . . . cannot confer on any reporter such right.”
Throughout the 20th century, various state governments and private publishers have attempted to seek copyright protection for case law and statutes, only to be similarly placated by the courts and reminded of the limited reach of copyright protections. The First Circuit ruled in 1980 in Building Officials & Code Adm. v. Code Tech., Inc. (full case opinion here), that when legislators sign the original works of publishers into law, the authored works pass into the public domain. In this case, a model code authored by a private organization entered the public domain when the state of Massachusetts adopted it. The Fifth Circuit similarly ruled in 2002 in Veeck v. Southern Building Code (full case opinion here) that once the government passes model code into law, “there is no reason to believe that state or local laws are copyrightable.”
In contrast to these rulings opposing the ability to copyright laws, there is an open division of authority on the issue. The First Circuit declined to follow Veeck in John G. Danielson, Inc. v. Winchester-Conant Properties, Inc. (full case opinion here) and allowed the copyrighting of a law where a private architectural drawing was incorporated into the subject of a local zoning ordinance. The Second Circuit has also ruled in CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc. (full case opinion here) that incorporation of private used-car valuations into insurance statutes and regulations did not make the laws unprotectable by copyright. Moreover, the Ninth Circuit ruled in Practice Management Information Corporation v. American Medical Association (full case opinion here) that incorporation of a private classification system for medical procedures into Medicare and Medicaid regulations did not make them unprotectable under copyright law.
Conflict creates interest, and conflict in judicial rulings dramatically emphasizes the importance of an issue and generates added interest in the legal community. With squarely conflicting rulings in multiple circuits, the question of whether laws can be copyrighted carries a certain ripeness that could translate into Supreme Court review.
The Right to Publish vs. Right to Protect in 2018
With the rise of organizations and legal technology companies that are fighting to provide the public with unfettered access to the law, private and public organizations are fighting a losing battle to maintain copyright protection to the laws and/or to their particular presentation of those laws.
Carl Malamud is a prominent figure in the movement to establish free and open access to the law. The president and founder of Public.Resource.Org (PRO), Malamud’s recent victory in Code Revision Commission v. Public.Resource.Org (full case opinion here) is a substantial win for all Americans. The Eleventh Circuit’s decision resolves a decades-long dispute over whether the state of Georgia can claim copyright protection in the official annotations to its laws.
Cutting straight to the core principles undergirding PRO’s stance on publishing the full text of laws in its online database, the Eleventh Circuit opined that when state legislatures enact laws, “they are undisputedly speaking on behalf of the People,” and that “the People are the ultimate authors of the annotations” to those laws. The court further held that “[a]s a work of the People the annotations are inherently public domain material and therefore uncopyrightable.”
Malamud also recently won an appeal in American Society For Testing v. Public.Resource.Org, Inc. (full case opinion here) in the D.C. Circuit. This case is significant, as it overrules a lower court’s decision that copyright protections extend to publicly disseminated industry standards that have been incorporated into law. The court remanded the case to the district court with instructions to conduct a more substantive review of the fair use factors involved, keeping open the question of whether certain technical standards published by the American Society for Testing and Materials could be copyrighted.
Other organizations have followed suit. Notably, the legal research company Fastcase is currently embroiled in a battle with Casemaker in the Eleventh Circuit. Fastcase sued Casemaker when it refused to remove Georgia administrative rules and regulations from its research database. Casemaker’s parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the Georgia rules and regulations, and the Georgia legislature also requires users who want to access the state statutes to sign a contract with Lawriter. The court has yet to make a decision on the merits, but it has ruled that it has subject matter jurisdiction to hear the case.
While not yet ruling on the merits, the court did acknowledge the burden of subjecting Fastcase to liability for copyright infringement, noting that “Fastcase must access the Georgia regulations ‘at least daily, and possibly thousands of times every day’ to maintain a current database of Georgia law. Every time it accesses the Georgia Regulations, Fastcase exposes itself to $20,000 of liquidated liability.” When asked for an opinion on the case, Fastcase CEO Ed Walters stated that “[p]rivate companies can’t own public law, even if they make clickwrap contracts that try to confer rights of ownership.”
The recent wins of Carl Malamud and Ed Walters in the Eleventh Circuit are promising steps forward in improving access to the law, however, it is important to remember that Georgia is not the only state asserting copyright protection in its laws. According to a survey conducted by the National Conference of State Legislatures, 35 states assert some level of copyright protection for their statutes, while the 15 other states either assert no copyright protection or provide limited protection for specific publishers of the states’ statutes to claim copyrights in annotations and/or other editorial work products. This further compounds the need for and potential likelihood of Supreme Court review to provide a uniform answer to the question of who owns the law.
The Why Behind It All
The issue of access to the law goes beyond locating cases and statutes online: It is not just about finding the laws but is also about pairing them with annotations, history, metadata, and parallel citations that make cases and statutes more meaningful and helpful.
Small law firms, solo practitioners and the public should not have to pay an arm and a leg (or both) for access to the case law and statutes impacting their lives and livelihood. They should be able to access those laws and the associated information freely from any publisher, whether a public or private company. The question of who owns the law is a critical one, as it impacts the fundamental right of access to justice.
Not only are copyrights limited in scope, but U.S. courts have also repeatedly ruled that materials distributed in the public domain belong to the public. Not to mention, as more organizations and legal technology companies begin to disseminate the laws freely, the less traditional legal research companies and state governments will be able to maintain their ironclad control of case law and statutes.
This all points to the reality that the laws that bind the public belong to the public, that no one entity can claim a monopoly over the law, and that making the law accessible forms a more educated, informed populace. Without free and unfettered ability to access and re-publish the law, lawyers and lay people alike cannot obtain the same level of insight as they can from companies dedicated to making the law more accessible, easy to interact with, and meaningful to use.