WEBVTT - Georgia Can’t Hide Law Behind a Paywall

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>In a class between state power and public access at

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<v Speaker 1>the Supreme Court public Access one. In a close decision,

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<v Speaker 1>the Court rule that Georgia cannot copyrighted States annotated legal

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<v Speaker 1>code and put the law behind a paywall. During oral arguments,

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<v Speaker 1>Justice Neil Gorsch had posed the question at the heart

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<v Speaker 1>of the issue, why would we allow the official law

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<v Speaker 1>enacted by a legislature a proved equivalent of being approved

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<v Speaker 1>by the judge and anotations? As Justice Ginsburg indicated, why

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<v Speaker 1>wouldn't we allow the official law to be hidden behind

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<v Speaker 1>a paywall? In the majority opinion, Chief Justice John Roberts

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<v Speaker 1>wrote that no one can own the law, joining me

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<v Speaker 1>as intellectual property litigator Terence Frost, a partner at Captain

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<v Speaker 1>Yuchen Rosenman, so Terry start by explaining what Georgia wanted

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<v Speaker 1>to do. Georgia published the Law of the State of Georgia.

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<v Speaker 1>They accepted didn't simply publish the language of the law.

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<v Speaker 1>It also published an annotation for each sexual law, which

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<v Speaker 1>essentially was a helpful guide to understanding how that code

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<v Speaker 1>section had been interpreted by other courts. Georgia copyrighted what

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<v Speaker 1>was called the Official Code of George annotated because it

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<v Speaker 1>included not just the loss but the anotation. A pro

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<v Speaker 1>bono organization came along and bought a set of the

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<v Speaker 1>entire Georgia Code annotated, scanned it page by page, and

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<v Speaker 1>then start posting it online so that people would have

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<v Speaker 1>free access to the Official Code of Georgia anoitated. And

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<v Speaker 1>Georgia didn't like that, so the State of Georgia filed

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<v Speaker 1>suit for copyright infringement, again the pro bono organization, and

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<v Speaker 1>that's how we got into court, the issue being mostly

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<v Speaker 1>whether the annotations could be copyrighted. There was no doubt

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<v Speaker 1>that the law couldn't be copyrighted. The Supreme Court had

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<v Speaker 1>already said on multiple occasions that the actual words of

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<v Speaker 1>the law cannot be copyrighted, and so the question was,

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<v Speaker 1>by adding these annotations to the law, could you protect

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<v Speaker 1>the new work? The combination of the words of the

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<v Speaker 1>statue plus the annotation, could you protect that under copyright law?

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<v Speaker 1>So one way of thinking about it is that they

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<v Speaker 1>were arguing that as long as the Code of Georgia

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<v Speaker 1>was out there without the annotations and not copy writable,

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<v Speaker 1>people could access that. The problem is that most of

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<v Speaker 1>the time these annotated codes are all that there is

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<v Speaker 1>out in the public record for people to consult. And

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<v Speaker 1>so the question really presented in part to the Court

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<v Speaker 1>was could you sort of hide the law behind copyright

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<v Speaker 1>by simply adding annotations to the statute. So Chief Justice

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<v Speaker 1>John Roberts wrote the majority opinion. What was his thinking,

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<v Speaker 1>It's a fascinating coalition here. June, the Supreme Court vote

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<v Speaker 1>at five to four ruling that the Georgia Annotated Code

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<v Speaker 1>could not be copyrighted because the legislators in Georgia could

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<v Speaker 1>not qualify as authors under the Copyright Act of ninety

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<v Speaker 1>and therefore could not take advantage of copyright registration. But

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<v Speaker 1>one of happening things is the majority of five justices

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<v Speaker 1>included Justice Roberts, Justice Course such Justice Kavanaugh, who traditionally

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<v Speaker 1>do vote together, but also Justices Kagan and so Domern,

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<v Speaker 1>who usually are not to be found on a Justice

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<v Speaker 1>Robert's opinion, whereas in the minority descending from the bin

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<v Speaker 1>was Justice Thomas and Justice Alito, along with Justice Ginsburg

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<v Speaker 1>and Justice Bryer. So a fascinating division of the Court

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<v Speaker 1>on this issue that proves that not all cases are

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<v Speaker 1>political at the Supreme Court? Can you figure out what

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<v Speaker 1>made those justices line up the way they did? I

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<v Speaker 1>was trying to think of what it would be. All

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<v Speaker 1>I came up with was that the dissenting justices appeared

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<v Speaker 1>to be the justices that are on the court the longest.

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<v Speaker 1>Clarence Thomas, believe that you are absolutely correct on that, June,

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<v Speaker 1>I am not sure that that's the complete explanation for

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<v Speaker 1>the particular lineup of justices and dissent I will say this, though,

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<v Speaker 1>the two justices who traditionally have been most protective of

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<v Speaker 1>copyright are Justice Ginsburg and Justice Brier, both of whom

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<v Speaker 1>had substantial pre court experience with copyright law, and so

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<v Speaker 1>it did not surprise me if that if anyone was

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<v Speaker 1>going to be arguing that a copyright should apply here,

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<v Speaker 1>it would be Justice Ginsburg Justice Brier. I can't explain

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<v Speaker 1>entirely Justice Thomas's point of view, but it seems he

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<v Speaker 1>tends to be a pragmatist of times, and what concerned

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<v Speaker 1>him was the fact that there are, in addition to Georgia,

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<v Speaker 1>twenty two other states and the District of Columbia and

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<v Speaker 1>two territories who published their laws in an annotated version,

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<v Speaker 1>and he thought the this decision would be inflicting some

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<v Speaker 1>sort of harm upon this large number of other states,

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<v Speaker 1>and as he expressed, it would come as a complete

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<v Speaker 1>surprise to them and therefore with somehow unfair to all

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<v Speaker 1>of the other states as well as Georgia, and that

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<v Speaker 1>he didn't want to do that to them, as a

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<v Speaker 1>little bit different of a dessent than what Justice Brian

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<v Speaker 1>Justice Ginsburg, who really went more to the merits of

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<v Speaker 1>the decision and took this very expensive view of what

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<v Speaker 1>an author is and therefore why this would be copyrightable.

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<v Speaker 1>So what happens now in the twenty two states and

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<v Speaker 1>d C and the two territories, They do not have

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<v Speaker 1>to do anything, but they will be unable to sue

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<v Speaker 1>for copyright infringement. If a public organization comes along similar

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<v Speaker 1>to Public Resource or here and starts publishing the annotated

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<v Speaker 1>codes of these other states in the District Columbia, those

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<v Speaker 1>states and the District can do nothing. They will simply

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<v Speaker 1>have to allow it to happen. Was there a sort

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<v Speaker 1>of populist own to the Chief's decision in that if

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<v Speaker 1>you allowed Georgia to copyright this, you would have the

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<v Speaker 1>economy version of the law of the Code, which everyone

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<v Speaker 1>would get, and then a first class version which only

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<v Speaker 1>people who paid would get. There's certainly a populous tone

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<v Speaker 1>to Chief Justice Roberts majority opinions, as the Eleventh Circuit

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<v Speaker 1>of the Appeal Court that had reviewed this below had said,

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<v Speaker 1>the laws are made by representatives of the people, and

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<v Speaker 1>they cannot then put up a fence around those laws

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<v Speaker 1>so that the people can't have access, because they act

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<v Speaker 1>for and on behalf of the people, and therefore, by

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<v Speaker 1>right these public laws should be of the people and

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<v Speaker 1>free to the people. Now, the Chief Justice did not

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<v Speaker 1>go as far as the Eleventh Circuit in that respect,

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<v Speaker 1>but he did say that the ultimate inquiry here should

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<v Speaker 1>be whether or not the work is attributable in some

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<v Speaker 1>way to a constructive authorship of the people, capital p

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<v Speaker 1>on people. So he at least was willing to admit

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<v Speaker 1>that that's a consideration here, although it was not the

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<v Speaker 1>exclusive reason for his decision. His decision really was expressed

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<v Speaker 1>as being driven by prior cases with respect to judges

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<v Speaker 1>being unable to copyright their decision, and then he said

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<v Speaker 1>that the legislators should also be unable to copyright their work,

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<v Speaker 1>but underlying it, I think there was a sense in

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<v Speaker 1>the majority opinion that judges legislators all work for the people.

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<v Speaker 1>They can't then claim authorship of what they do, because

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<v Speaker 1>only the people can do that and should be freed

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<v Speaker 1>at the people capital p Thanks Terry. That's Terence Fross,

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<v Speaker 1>a partner at Captain Uten Rosen Minton. Thanks for listening

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<v Speaker 1>to the Bloomberg Law Podcast. You can subscribe and listen

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<v Speaker 1>to the show on Apple Podcasts, SoundCloud, and on bloomberg

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<v Speaker 1>dot com slash podcast. I'm June Brosso. This is Bloomberg

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<v Speaker 1>the Deciding the bet to the end in the cont