Big Win for Open Access to Law - Georgia v. Public.Resource.org

On April 27, 2020, the Supreme Court decided an important case about copyright law and access to the law -- Georgia v. Public.Resource.org, Inc. At issue was whether the state of Georgia owns a copyright in the Official Code of Georgia Annotated (OCGA). The Court held that it does not and that the code in the public domain.

This case is a big win for the movement for open access to law. This movement runs parallel with the movement to make scholarly and scientific publications open access. I wrote about the relationship between these two movements in my article, The Movement for Open Access Law, and this case represents a big step forward. Kudos to Carl Malamud and the attorneys who represented him for having the courage of their convictions.

We discussed how this case might be decided as part of the Program on Information Justice and Intellectual Property's series: Intellectual Property at the Supreme Court. Our panelists in the discussion of this case, agreed that it would be close -- and it was.

Summary 

The Code is a compilation of statutes enacted by the state government along with annotations, such as descriptions of court decisions interpreting these statutes. The work of creating this compilation is done by a publisher, now Lexis, under a work-made-for-hire contract with the Code Revision Commission, which acts on behalf of the legislature.

Public.Resource.org is the brainchild of Carl Malamud, a longtime advocate for making public domain resources, the law in particular, available for free on the Web. Public.Resource.org published copies of the Code, and Georgia sued for copyright infringement.

In a 5-4 decision, the Court held that there is no copyright in the Code because it was created by an arm of the legislature acting in its official capacity. In this capacity, it is a representative of the people, and therefore there is no "author" of the work in the way the Copyright Act conceives of authorship.

Background

Publishing legal resources has long been a lucrative business. Lawyers need access to the law to do their jobs after all. Copyright infringement lawsuits in legal publishing are hardly new. In fact, the reasons the Court chose to decide this case on the grounds of authorship lie in a trio of cases from the 19th Century involving publications of court decisions. Official reporters were tasked with compiling and publishing judicial decisions. Many also added their own annotations to these decisions.

Those cases established a few principles that everyone in the case agreed with:

1. Reporters who publish court cases could not own a copyright in the decisions they publish even if the judges purported to give them copyright. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).
2. The reason the reporters don't own copyright is that judges are not the authors of anything written in their official capacity, including their opinions and annotations that they may create. Banks v. Manchester, 128 U. S. 244 (1888).
3. Reporters who publish court cases are the authors of any annotations to court decisions that the reporter creates as long as those annotations do not have the "force of law" (i.e. are the editorial opinions of the reporter but are not considered part of the judge's decision). Callaghan v. Myers, 128 U. S. 617 (1888).

The Court's reasoning

The tricky aspect of this case is that the annotations created by the Code Revision Commission are part of the Official Code of Georgia.

The Court could have resolved this case in one of three ways.

The Court could have held that once a text becomes law, whatever copyright may have existed in that text merges with either the fact that it is the law or the idea of the law. Under copyright's merger doctrine there either is no more copyright to be enforced or the copyright becomes unenforceable because that would be the equivalent of protecting facts or ideas.

The Court could have accepted Georgia's argument that only texts that have the "force of law" are without copyright and the annotations, while part of the Code, do not have the force of law.

The Court appears to have chosen to ground its decision on the lack of authorship in works created by judges and legislators in their official capacity for two main reasons.

First, the rule resonates with the reasoning of 19th Century cases, and, in this context at least, the Court wanted to reaffirm its precedents.

Second, the rule is fairly straightforward to apply. It is much easier to identify works created in a judges' or legislator's official capacity than it is to identify which works have the force of law.

There may be edge cases, of course. Some politicians use their "personal" social media accounts as de facto official publications. Those are likely to be covered by the rule in this case. But, what about social media accounts for which the content is 70% personal and 30% official? That may require the kind of parsing the Court was hoping to avoid.

What's Next?

The next issue with respect to copyright and the law is model building codes and other industry standards that are enacted into laws or regulations. The First and the Fifth Circuits have held that once the text becomes "law" the text loses its copyright because the law cannot be covered by copyright, the copyright merges with the fact that the text is the law, or that the Due Process clause gives the public a right to access the laws by which they are governed. See Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).

The same issue is now pending in the Second Circuit. Upcodes is a web publisher of building codes that has been sued by the International Code Council (ICC) for publishing model codes that have been enacted into law. Public.Resource.org also has been sued for doing the same thing in American Society for Testing and Materials et al. v. Public.Resource.Org, Inc. among others. Both sides argue that the Court's decision in this case strengthen's their position. We shall see.

Please Share - "You Only See Me When I'm Gone"

My friend Alan Scott has released a new song and video called "You Only See Me When I'm Gone," featuring Eric Garner's mother, Gwen Carr. It's a beautiful song and great video with a powerful message.  Please watch and share!




Here is Alan's press release from Sacks & Co.:

D.C. songwriter and music teacher Alan Scott debuts his new song “You Only See Me When I’m Gone,” a song written and recorded in the wake of incidents in Ferguson and Baltimore and mass shootings in Charleston, SC. Scott and Mark Williams produced the song and the Lenny Bass-directed video also features Gwen Carr, the mother of Eric Garner. Watch it here: https://www.youtube.com/watch?v=VFldMx_t38M

“As a songwriter, I have always found a way to take my sadness and grief, my joy and hope, and give it a place in the air, in the music,” says Scott of the song. “I felt powerless in the wake of such tragedy, anger and loss. And out of that powerlessness, the words just came. My song is a reaction to the media marginalization of Black identity—which is infinitely diverse, combined with the message to youth that ‘this is what you can expect.’”

Scott connected with Lenny Bass—a celebrated director who has made videos for De La Soul, Charlie Wilson, Anthony Hamilton, Jill Scott and more—to create a video for the song. The two shot the video, alongside production company Grand Large, over four days in Bass’s native Staten Island.

“From the beginning Alan was adamant about this video humanizing and decriminalizing the black community,” says Bass. “He wanted to reframe the picture created by all forms of media and their depiction of the black existence.  He pointed to the lyric in the song ‘you only see me when I’m gone,’ which made us naturally ask the question, ‘Who were these people when they were alive?’ From there we spoke about portraits that would properly tell the story, a series of images that would properly represent a community that is more than what we see on the five o’clock news.”

Bass, the son of a police officer, returned home and reached out to friends and family everywhere to be featured in the video. One such interaction led him to a childhood friend who was close with the family of Eric Garner, a Staten Island father who was murdered by police in 2014. Garner’s mother, Gwen Carr, was inspired by the song and agreed to appear in the video to discuss her son’s death.

U.S. Court Correctly Interprets Creative Commons Licenses

Are Creative Commons licenses enforceable in court?  Yes. 

In an important decision titled Drauglis v. Kappa Map Group, LLC, 128 F. Supp.3d 46 (D.D.C. 2015), Judge Amy Berman Jackson of the United States District Court for the District of Columbia has issued a decision that:

1. confirms the enforceability of Creative Commons licenses under U.S. copyright law;
2. interprets the attribution requirement in the licenses to have the flexibility that is consistent with the licenses’ language and intent;
3. holds that incorporating a photo into the cover of a road atlas creates a collective work rather than derivative work under U.S. copyright law; and
4. holds that the “ShareAlike” condition in the 2.0 version of CC licenses is only triggered when a user distributes a derivative work as that concept is understood under U.S. law.

The court also rejected some misdirected arguments about copyright management information under Section 1202 of the Copyright Act.

Origins of the dispute

In April 2008, Art Drauglis took this photo of Swain’s Lock along the Cheasapeake & Ohio canal in Montgomery County, Maryland. He posted it to his shared photostream on Flickr under the Creative Commons Attribution-ShareAlike 2.0 Generic License.

 “Swain’s Lock, Montgomery Co., MD.” Photograph by Art Drauglis. Licensed under the Creative Commons Attribution-ShareAlike 2.0 Generic License.

  

Kappa Map Group publishes road atlases under the brand “ADC”. Beginning in 2012, Kappa relied on the Creative Commons license to publish an atlas that incorporates Drauglis’ photo on its cover.

Subsequently, Drauglis registered his claim to copyright in the photo in 2014 (which is required to file a lawsuit for copyright infringement) and sued Kappa. Although he acknowledged that he had granted Kappa and the rest of the public the right to use his photo commercially, Drauglis asserted that Kappa was operating outside the license and therefore was an infringer because (1) Kappa had failed to give him credit appropriately, (2) failed to properly identify the CC license under which his photograph was offered, and (3) that Kappa had created a derivative work that required the entire atlas to be licensed under the same CC license.

Attribution

Drauglis acknowledged that Kappa had given him credit in the atlas.  The back cover identifies the title of the photograph, the authors of the shared photostream, and the name of the CC license under which the photo is offered to the public.

Drauglis complained that Kappa had not given him credit in the front inside page of the atlas where the copyright notice is published, that the credit he received is not as prominent as that given in the copyright notice, and that the attribution fails to provide the URL for the CC license.

The court rejected the comparative prominence claim as follows:

But the Court finds that the copyright notice on the first page is not the relevant authorship credit to which the attribution on the back cover should be compared. Instead, the notation at the bottom of each individual map – “© Kappa Map Group, LLC” – is the comparable authorship credit, because the single Photograph is more similar to an individual map than it is to the Atlas as a whole.

. . . .

Therefore, because defendant provided plaintiff with authorship credit in a manner comparable to and as prominent as the attributions on each of the individual maps when it attributed the Photograph to plaintiff on the back cover, the Court finds that defendant did not violate section 4(c).

Drauglis, 128 F. Supp. 3d at 59.

Identifying the CC License

With respect to the claim that Kappa was required to provide a link to the CC license with the attribution, the court carefully interpreted the plain language of the license, which reads that the user “must include a copy of, or the Uniform Resource Identifier for, this License with every copy . . . of the Work”.

The court analyzed and rejected this claim because the license does not require a link to the license text if the name of the license is used:

While there is no legal authority on this point, Internet authorities have defined a Uniform Resource Identifier (“URI”) as “an identifier consisting of a sequence of characters . . . . [which] enables uniform identification of resources via a separately defined extensible set of naming schemes.” T. Berners-Lee,7 et al., Uniform Resource Identifier: Generic Syntax 5 (Jan. 2005), Network Working Grp., https://tools.ietf.org/html/std66 (last visited Aug. 18, 2015). There is more than one form of URI – it can be “a locator, a name, or both.” Id. at 7.

. . . .

Thus, when plaintiff argues that defendant should have provided “a link to the full license” in the Atlas, he conflates the term Uniform Resource Identifier, which is used in section 4(a), with the narrower term Uniform Resource Locator, which appears nowhere in the License. A Uniform Resource Locator – “URL” or “link” – is one form of a Uniform Resource Identifier, but it is not the only one. For that reason, plaintiff’s contention that defendant was required to include in the Atlas a “link” to the License – its Uniform Resource Locator – is simply incorrect. Section 4(a) states only that a licensee “must include . . . the Uniform Resource Identifier” for the License when distributing a work offered under the License. See License § 4(a) (emphasis added).

To satisfy section 4(a), then, defendant could have printed the Atlas with either the License’s URL or its URN, as both are subclasses of the URI required by the License. And while defendant did not print the Atlas with a link to the License’s web address (its URL), it did provide the License’s URN when included the notation “Creative Commoms [sic], CC-BY-SA 2.0” on the back cover of the Atlas. Atlas at 116. Creative Commons has unique names for each of its six licenses, and the particular type of license at issue in this case is specifically designated and easily located online by the phrase “CC BY-SA 2.0.” See About the Licenses, Creative Commons, http://creativecommons.org/licenses/ (last visited Aug. 18, 2015) (abbreviating the “Attribution-ShareAlike” license as “CC BY-SA”); Attribution-ShareAlike 2.0 Generic, Creative Commons, https://creativecommons.org/licenses/by-sa/2.0/ (last visited Aug. 18, 2015) (referring to the License as the “Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)” license). That “CC BY-SA 2.0” is the proper URN for the License is further confirmed by a routine Internet search.

Therefore, the Court finds that defendant’s reference to the name of the License on the back cover of the Atlas was sufficient to satisfy the section 4(a) notice requirement, and defendant is entitled to summary judgment on this issue. 

Id. at 56-58.

ShareAlike

The court recognized that under the terms of the 2.0 license – which mirrors the language of the U.S. Copyright Act – use of the licensed work as part of a new work that is original enough to get its own copyright will result either in a “collective work” or in a “derivative work.”  The distinction matters because under the license, the ShareAlike requirement applies only to derivative works.

Under both the 2.0 license and the U.S. Copyright Act, a derivative work arises only when it is based upon the original and is embodied in a form in which it has been “recast, transformed, or adapted.”

Applied to the atlas, the court held:

But the Atlas is a map book and not an adaptation of plaintiff’s photograph. Because this 112-page book of maps is not in any way “based upon” the Photograph, and because defendant did not “recast, transform[], or adapt[]” the Photograph when it used it as the cover art for the Atlas, see License § 1(b), the Court finds that neither the Atlas nor its cover constitutes a derivative work subject to the ShareAlike requirement. Rather, the Atlas is more akin to a collective work, because the Photograph was placed “in its entirety in unmodified form” alongside “other contributions, constituting separate and independent works” – that is, the maps. See id. § 1(a). 

Id. at 55.

This is always how we at Creative Commons have understood the difference between collective works and derivative works. Unfortunately, Drauglis’s attorney submitted to the court a sworn statement from a former Creative Commons employee that took the position that Kappa’s use of the photograph turned the entire atlas into a derivative work, or, in the alternative, that the cover of the atlas was a derivative work.

This person admitted that she was not speaking on behalf of Creative Commons, but there is no doubt that this is the implication based on her statement of expertise. The judge correctly ignored this legal opinion because she found no ambiguity in the language of the license and therefore she did not need outside evidence to aid her interpretation of the license. The judge also found that plaintiff had failed to raise the claim about the atlas cover as a derivative work, but even if the issue had been properly raised, she would have rejected it for the same reasons.