“Terrorism” has many legal definitions, with Black’s Law Dictionary defining no less than a dozen terms including the word. But when the State of Georgia tried to stretch the meaning and label free distribution of state law annotations as an element of a “strategy of terrorism,” the Supreme Court snapped it back.
The contentious, 5-4 victory for a nonprofit seeking to provide free access to Georgia’s state code prevents the pay service LexisNexis from claiming exclusive rights to distribution of the statutes and their Lexis-produced annotations. Lexis had agreed to limit the price of the annotated Georgia code and freely distribute the code without annotations in exchange for exclusive copyright. Even the state’s governmental websites direct users to Lexis’ 2020 Georgia statutes. Although the public may find current print statutes in libraries and older versions online, until the recent holding that statutes as well as annotations are not-copyrighted as “government edicts,” Lexis had been able to restrict access to the current, annotated Georgia Code.
By contrast, although Arizona’s Legislature has agreed to credit West’s Arizona Revised Statutes Annotated as the official state code, the current statutes are freely available online without channeling through a publisher’s website. Current and superseded versions of the statutory code are available in print in the Ross-Blakley Law Library.
As for Georgia, the Supreme Court, through Chief Justice John Roberts, held that officials who create law, such as legislators in this case, and judges in previous decisions, may not copyright legal materials they produce in line with their duties. When a nonprofit posted the annotated statutes online, Georgia sued. After the state saw its district court victory overturned in the circuit court, the Supreme Court crushed the state’s copyright claims by reasoning that legislators cannot be the “authors” of official works. This official distinction extends to annotations in legislative works just as it does to headnotes in judicial works. If the law can presume, as it does, that everyone has a duty to know the law, the Court reasoned, decisions that exclude the entirety of legal works are necessary to preserve important legal principles. Copyright barriers to annotations might keep important information from people, such as whether provisions are unenforceable, and might empower states to monetize their codes at the expense of legal integrity.
In dissent, Justice Thomas emphasized that annotations do not necessarily represent the will of the people, and that it should be a legislative and not judicial decision as to whether to copyright them. He worried that lack of copyright protection might discourage states from investing in annotations. Justice Ginsburg, furthermore, dissents on the grounds that annotations are not official lawmaking duties, merely summarize nonbinding commentary, and are mere conveniences—“they aid the legal researcher” but being included alongside noncopyrightable statutes “does not alter their auxiliary, nonlegislative character.”
Here at the Ross-Blakley Law Library, we have a strong appreciation for how much annotations, commentaries, and summaries of cases can “aid the legal researcher.” Whether or not they are subject to copyright and free to all, secondary materials make research more efficient and thorough. As Chief Justice Roberts’ controlling opinion indicates, they quickly provide valuable information that readers of plain case law or statutory text would likely overlook. Regardless of their stance on whether copyright applies, all three opinions underscore the importance of annotations. If you’d like to know more about how to use them to improve your legal research, Meet with a Librarian! We’ll be happy to chat over Zoom or email.
Andrea Gass, Reference Librarian