April 28, 2020
Pay-Per-Law, Inc.the glory and agony of Georgia v. Public Resource
The Supreme Court has decided Georgia v. Public.Resource.org. Georgia cannot copyright its annotations to its legal code, even if it pays a private company to write them.
Carl Malamud of public.resource.org, along with all the legal muscle that flanked him, especially pro bono, should be dancing-in-place all week. They deserve to. A meaningful case. A noble service done.
At the same time, I have to admit, I couldn’t enjoy the court’s opinion. I wanted to. I was ready to. I expected to. But the taste I took away was sickly sweet. I feel ill.
It wasn’t a matter of surprise. Having heard the result beforehand, I read the opinion mostly to see which analytical line the court took to get there, and to gaze the tea leaves of its policy pronouncements. If I cut-and-pasted those pronouncements into a crib sheet and traveled back in time to show myself a few weeks ago, Kyle of the Past would be thrilled. Who doesn’t like seeing their policy preferences on supremecourt.gov, off the pen of the chief justice, in majority?
If you want bad psychoanalysis, do it yourself. But if I had to guess why I’m so uneasy, I’d say it flows from three sources.
One: Even as the court reaches a pro-openness result on the relatively narrow copyright issue, it seems to succumb to a triumphal, reductionist view that getting that much right will have significant traction on the big-picture issues motivating the rule. It won’t.
Two: In reaching that result, the court reinforces the kind of legal rule that best protects the control of the firms standing between narrow, doctrinal victory and free, practical access to the substance of the law. Those profiting by interposing themselves between the government and the people can find a nice golden lining in this opinion.
Three: At a higher level, I’m increasingly uncomfortable with the glaringly inconsistent ways we lawyers apply and talk about copyright for our work and everybody else’s. It’s one set of rules and rhetorical layups for our business, and a mirror image for the society it’s our business to serve.
The zinger for the zinger-minded is “pay-per-law”:
If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today's digital tools, States might even launch a subscription or pay-per-law service.
Pay-per-law is reality in every State of our Union. They’re called bar associations. I am a member in California. If you’re not a member, doing what I do in the state is a crime.
Frankly, even if the government sent each citizen a complimentary copy of the whole public law every Fourth of July, that would solve the toilet paper problem, help start some barbecues, and accomplish little else. Educated, intelligent people—more educated and intelligent than I am—can’t make heads or tails of the average statute with actionable confidence. They read legal opinions, at best, like first-year law students, but without the benefits of full-time focus, academic guidance, or the carrot of a new career.
In short, our law isn’t written to be read by those subject to it, not to mention most of those in government who administer and enforce it. Which is why the law has to impute that people know and understand the law, instead of proving it. Some do make it there without law school, as exceptional jailhouse lawyers and autodidacts. But there is a yawning difference in kind between disseminating the raw material of legal education and disseminating the law citizens need.
Upshot? When the court says “pay-per-law”, it’s from a decidedly lawyerish point of view. It’s lawyers that would have to pay. Which they often do already, for access to commercially authored annotations and other “secondary authorities” designed for practical use. These costs are passed on, one way or another, to paying clients. But those tolls don’t buy access, only powerups for the licensed lawyer-intermediaries. At least when we talk statutes, rather than the kinds of building, safety, and other technical codes Malamud has also, thankfully, been getting into trouble for republishing.
All lawyers know this, and so does the court. In the very next paragraph of Roberts’ opinion, he implicitly acknowledges the ravages of pay-per-law on copyright lived experience, from something distantly approaching a client point of view:
Some affected parties [of a pay-per-law system] might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial.
To use the frank terms the court never would: fair use is good, but fair use is fucking expensive, a legal luxury on the order of tax shelters, patent experts, and wood-panel defense lawyers. I know this because copyright is one of my things, and if you ask me for guidance on a specific fair use issue:
I’m going to need substantial time to dig up a bunch of facts.
I’m going to need substantial time to write through all the factors.
I’m going to need substantial time to riffle through notes of potentially analogous cases.
I’m almost certainly going to have to tell you that my conclusion isn’t a sure thing.
I’m going to have to tell you that even if your case is strong, the other side could still drag you into court without getting tossed out for vexatious litigation, because there’s so much room for “colorable” argument.
I’m going to have to refer you to a litigator—a lawsuit specialist—if that happens.
In other words, even if I do an excellent job at my little bit, your overall client experience is going to bite. And that’s before I bill you. Which is why I avoid this work like the COVID-19.
Meanwhile, we’re all waiting on the Supreme Court to decide Oracle v. Google. God knows what that process has cost the litigants, the government, and all the rest of us, duty- or interest-bound to care. The patent chauvinists call patent litigation the “sport of kings”. More than a few look down on “soft IP” like copyright. But what kind of lawyer needs technical experts to make things complicated?
In the end, somebody is going to pay for legal publishing. The question is who, how much, for what, exactly, and who will get it. The bar of what’s available, for free, online, without restriction, ought to rise from raw primary authorities up through annotations to current secondary resources and beyond. We need a system that makes it rise, at the quickest clip we can hold. Given the choice of an arrangement where lawyers get access and everyone gets access, it’s morally incumbent on the profession to choose the latter. Government doesn’t have to be its own publisher, but whoever does the job, the results ought to be public. Not crippled, exception-ridden, begrudging concessionary nonsense.
Roberts is right: this is bigger than his court, even though his court is the biggest. His branch can hear the policy loud and clear. It can decide Georgia with that in mind. But Georgia isn’t going to achieve the policy’s objective in any practically satisfying way. After Georgia, those working to make the law free—Public Resource, The Free Law Project, Berkman—are going to keep pushing their boulders up the hill, albeit with marginally less cognitive-doctrinal dissonance to carry with them, until government as a whole gets its means and ends lined up. Which is going to be a trick, since the whole system’s gotten good at talking out two sides of its mouth, picking its populism as the moment requires.
Georgia knew the Supreme Court doesn’t legislate. But they had to bring up the broader context, and the court had to acknowledge it:
Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution. That appeal to copyright policy, however, is addressed to the wrong forum.
Lexis is LexisNexis, part of the Reed Elsevier group, which recently pulled a Philip Morris and redubbed itself “RELX”. Lexis is one arm of the US legal publishing duopoly known as “Wexis” with Westlaw, a Thomson Reuters property. Lexis is the red one. Westlaw is the blue one. Both parent companies are sprawling multinational conglomerates. Neither is based in the United States.
It’s no exaggeration to say these companies own the United States legal information system, especially for the kinds of information you need to get work done in court. One or the other has a contract for publishing the primary legal materials of nearly every state judicial system. California is Lexis territory, for example.
There’s nothing covert about this.
On the demand side, new law students are issued free Lexis and Westlaw passwords in their first week, like boots for boot camp. Both vendors send reps for training and marketing to the law schools on a regular basis. Because what’s free in law school costs thousands and thousands of dollars in subscription fees, with substantial use limits and overage charges, for firms and courts and companies. The vendors want the young blood hooked on their gear—versed in their interfaces and fluent in their query languages—from legal birth. The first hit’s always free.
On the supply side, Lexis and Westlaw have been cozy with the courts for years. Or rather, the courts have succumbed to dependence upon them. Judicial staff regularly send initial copies of their judges’ decisions—what lawyers call “slip opinions”—directly to Lexis and Westlaw representatives, who in turn route for editorial and typographic editing the courts are kept too budget-starved to do for themselves. The edited slip opinions often go up on a free government website these days. But the “official” versions come out in bound volumes called “reporters”: expensive, commercial products of the vendors. Court rules routinely require citing decisions by specific page numbers in those reporters. And states that published their own have given up and christened West instead. On the federal side, the Supreme Court does its own publishing, but the appeals courts below it feed into West. The same court systems are often customers … for databases including their own opinions.
What about competitive publishers? They exist. Often briefly. West infamously sued one for replicating its pagination back in the day and lost, at least in court. But other maneuvers, including more original content in the form of annotations and summaries, soon followed, to salt the earth around the fortress. For most case law, there simply isn’t any existing record free of some private company’s copyrighted material. Picking all that salt out, grain by grain, so startups and others can build on public law, has taken massive effort and resources, and still isn’t free for unrestricted access or use.
The high court is in a unique position to call this out. I’m glad they did. But then only meekly, buried in parentheticals, trailing after mind-numbing, redundant string citations:
Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. See OCGA sections 21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at www.legis.ga.gov). Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal. See sections 21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at https://store.lexisnexis.com/products/official-code-of-georgia-annotated-skuSKU6647 for $412.00).
This was true in Texas when I lived there, and it’s true in California, where I live now. It’s also true that public law librarians—bless their noble souls—do what they can to buy these pricey resources and make them available for naught. Where they can, they get deals to make the commercial databases available at their computer stations. But a two-tier system where some people get to use the Internet, and others get bus passes, gas bills, and database access codes for an hour or two at a time is still very much a two-tier system.
Welcome to reality. It’s filthy down here.
The court ruled that Georgia can’t copyright annotations to its statutes. But which line of analysis did the court choose to get there? The one focused first and foremost on who does the work, not what the work is, means, and says:
Instead of examining whether given material carries “the force of law,” we ask only whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.
The State of Georgia can’t monetize its annotations like Wexis can. It can’t sell or exclusively license copyrights in them, though it can and perhaps will make deals for preferential access. Supreme Court says. But at the same time, the right of Wexis to monetize as it pleases is even more clear today than it was before. This court isn’t saying we’re going to get free annotations from the government. It’s closer to signaling that annotations—making the law understandable, or even just legible—won’t be the government’s job.
I suspect and fear that we will see states like Georgia privatize more of the task of legal content production, shifting it into a realm where access can and will be more effectively controlled. No matter how critical those products are to citizens and their lawyers in practice. No matter how difficult it becomes to scrape the commercial gloss off the public law.
The contract at issue in this lawsuit said the annotations Lexis wrote were “work made for hire” belonging to the state. What if they just strike that part, and license the state the tools to comprehend its own law instead?
Yours and Ours
Two domains, government and industry. And a new Supreme Court deepening their divide, this time in copyright.
On the public side, a strengthened rule making clear that copyright doesn’t apply, even to works directly analogous to materials sold commercially, like annotations to statutes.
On the private side, a strengthened rule making clear that copyright does apply, even to works directly analogous to works also created and relied upon by government, to works acknowledged by the highest court in the land as essential to everyday people in understanding and exercising their legal rights and civic freedoms.
It’s uplifting for an “open”-leaning intellectual property lawyer to read so many rhetorical tropes of IP skepticism under the Big Court’s masthead. They have power. I don’t. I like to hear them cheer like my team. To believe that they get it. To pretend, for a moment, that all the decisions going the other way—many of them, decades of them—were flukes, products of necessity, accidents of judicial history, vestiges of a bygone, IP-maximalist dark age.
But when I remind myself to stop reading between the lines, as a ranking guildsman, and to look at this as a client or would-be client might, it’s hard to bear. Lawyers deciding that lawyers get more of the raw material they need, free and clear of the very copyright regime they themselves administer to the great pain of everyone else. Lawyers telling the parties that if they want a broader, realistic conversation about practical access that doesn’t stop short of a narrow copyright box-ticking exercise left over from 1888, they came to the wrong lawyers. “Not our branch of government. Go lobby the leg.”
I see the same inconsistency in my own day-to-day. There is no exception to copyright I’m aware of—from congress, regulators, or the courts—for contract, policy, and other legal language. Others reached the same conclusion long before I confirmed it for myself. And yet we contract jockeys largely live and work in the kind of world many “open” advocates in other disciplines aspire to.
We incessantly crib from others’ published work and private proposals. We stockpile forms like nuts for a long winter. We sit industry working groups that publish templates, guides, even online wizards, and use their content without reading any license terms. We know and expect, in that sense, that we are above the copyright law. And we are very rarely wrong. Given all that leeway, it’s frankly shocking how little systematic cribbing we do.
We lawyers are also the institution where public and private meet. The orderly functioning of the law is a public matter in our largely private hands. All our theories of government legitimacy assume this goes well. But there is no legal right to civil counsel in this country, and what we get for free in the criminal domain is often so over-utilized and under-resourced as to seem a sham.
Standing at that intersection, we might expect to play by exceptional rules. But each exception begs a question: Is law mixing and matching public and private, open and closed, civic and commercial, to do a peculiar service for the public right? Or are lawyers playing their own game for their own accounts, arbitraging for personal gain, as an anointed tribe of parasitic middlemen? Our legitimacy depends, to no small extent, on doing, demonstrating, and performing the former. Largely, we have failed, and public perception tracks the latter. We are seen as pillaging elites, not ennobled servants. Our meritorious exceptions, like Carl Malamud, are seen just so—as exceptions. Like billionaires veering into philanthropy out of boredom, with no competition left to climb.
It’s not lawyers’ fault that legislators and lobbyists wax poetic about the rights of creators, the economic imperium of content conglomerates, and perpetual copyright, ignoring fair use doctrine, section 105, and arguably (unsuccessfully) the IP clause itself, only to turn around and preach collaboration, fair play, antimonopoly, and grass-roots culture when it suits them. But it is our fault when we emulate their pandering opportunism.
There’s probably no talking us out of lathering on whatever rhetoric suits the brief, or that makes our holdings seem stately and popular. But those choices have consequences, sometimes far beyond the matter at hand. Especially when we speak on the conduct of our own responsibilities, about the legal system for which we will be held responsible. We set ourselves up for charges of hypocrisy. Charges that won’t be heard or tried by our rules.
For a post about a decision that sounds so good, this has been a real downer. It’d be criminal, in times like these, to end on such a sour note. So—fun fact!—there was indeed a point where I couldn’t help cracking my crooked smile.
In considering the hypothetical country where Georgia could copyright its annotations and license them to Lexis, the court laments:
If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, non-profits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.
The chief justice of the Supreme Court just acknowledged—albeit offhand—the possibility of affirmative, voluntary transfer of copyright to the public domain. He didn’t say how that could be done. The devil is definitely in those details, especially since states can do things people can’t, like pass legislation, and “public domain” has a peculiar meaning in law that is far more about government than you and me. But it’s sure a nice sign that the court might recognize public domain dedication under modern copyright law, if it ever got the chance.
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