Georgia, a state run by the guy who oversaw his own election riddled with irregularities, is taking a hard stance against “telling the public about the law,” calling the act of providing public access to the state’s laws part of a “strategy of terrorism.”
That’s an actual quote from Georgia’s lawyers who made the argument — potentially heading to the Supreme Court — as part of a “strategy of tasteless hyperbole.”
If you think you vaguely remember learning in law school that the statutes and case law of the country belongs in the public domain, you’re not wrong. That’s well-established dating back to the 19th century. So how does Georgia find itself continuing to fight battles that everyone else thought were already lost in the 1800s and wow, even before I finished this sentence I realize how disturbingly on the nose it is.
While statutes and cases may not be amenable to copyright, Georgia provides official annotations to some legal materials — commentary that the state approves to accompany the law. As Adam Liptak explains in the New York Times, Georgia farms out the job of writing these annotations to LexisNexis and then gives them the imprimatur of official sanction before allowing them to be published by LexisNexis.
Georgia claims to hold the copyright to the annotations — though the Eleventh Circuit has already held that they cannot be copyrighted — while LexisNexis enjoys a license on the materials and pays the state a royalty.
This arrangement, of course, misaligns everyone’s priorities. If the annotations — a component of the law that would certainly be reviewed by any adversary or tribunal rendering it central to understanding the law even if it’s not drafted by a judge or
ALEC lobbyists the legislature — were drafted by LexisNexis as part of a deal where Georgia paid for a service rendered, then there would be no problem. But the state appears to have wanted something free (or with a slim royalty profit) and bundled it with a giveaway. But by stiffing LexisNexis upfront, the only hope the company has of recouping its costs is in selling access to its work and now Georgia has to fight to close off access to the law to protect its deal.
The state says this is a sensible cost-saving measure, “minimizing burdens on taxpayers” by sparing them from paying for the preparation of annotations.
This is, by and large, the model of governance in strongly Republican states. In an effort to artificially drive down taxes on the front end, the state aggressively hands profit potential to companies. Quite often, as we’ve seen repeatedly with private prisons, the deal ends up costing the state more on the back end, but then they can blame everyone but themselves for the thing going south. Just as Georgia will inevitably blame the cost of appellate litigation and the ultimate backpay owed to LexisNexis on “the courts” despite the problem being entirely of Georgia’s own making.
But let’s get back to the claim that this is all part of a terroristic plot brought by… non-profits, I guess… to give citizens access to laws that the state makes… maybe? It’s a stark vision of where Georgia’s priorities are when “letting people know how we expect the laws to work” reaches moral equilibrium with “killing children with pipe bombs.”
Then again, it’s not particularly surprising.
Accused of ‘Terrorism’ for Putting Legal Materials Online [New York Times]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.