Ignorance of the law isn’t an excuse so everybody must be free to acquire copies of the law to ensure they’re in compliance with it, right? Not in Georgia. In Georgia there are two sets of published laws. The first set is the freely accessible one. The other set is an annotated version copyrighted by the State of Georgia. Carl Malamud dropped over $1,000 to acquire the annotated version so he could publish it for the world to see. This made the State of Georgia very unhappy so it took the matter to court. Not surprisingly, the State’s court sided with the State:
Open-records activist Carl Malamud bought a hard copy, and it cost him $1,207.02 after shipping and taxes. A copy on CD was $1,259.41. The “good” news for Georgia residents is that they’ll only have to pay $385.94 to buy a printed set from LexisNexis.
Malamud thinks reading the law shouldn’t cost anything. So a few years back, he scanned a copy of the state of Georgia’s official laws, known as the Official Georgia Code Annotated, or OCGA. Malamud made USB drives with two copies on them, one scanned copy and another encoded in XML format. On May 30, 2013, Malamud sent the USB drives to the Georgia speaker of the House, David Ralson, and the state’s legislative counsel, as well as other prominent Georgia lawyers and policymakers.
In Georgia’s view, there were two separate works at issue: the actual text of the laws, which were available to the public, and the annotations, which were copyrighted and owned by the state. The annotated code includes things like judicial decisions related to particular sections.
Now, the case has concluded with US District Judge Richard Story having published an opinion (PDF) that sides with the state of Georgia. The judge disagreed with Malamud’s argument that the OCGA can’t be copyrighted and also said Malamud’s copying of the laws is not fair use. “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection,” writes Story. “Defendant admits that annotations in an unofficial code would be copyrightable.”
Ignorance of the law isn’t an excuse but knowing the law is only possible if you’re willing to pay a sizable fee for a copy. If that isn’t a catch-22 targeting poor individuals I don’t know what is.
What makes this decision even more egregious is that the copyrighted material was funded by tax victims. The laws themselves are created by politicians who are paid with tax dollars and the annotations include things like judicial decisions, which are created in courts funded with tax dollars. Georgians are paying the State of Georgia to create these documents and then have to pay again if they want to actually read them. It’s a good example of double-dipping.
Mr. Malamud is appealing and it’ll be interesting to see where his case goes.