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Journal of Intellectual Property Law

Abstract

In the 1970s, the Georgia General Assembly set out to perfect the organization of the laws of the state. The State worked with a publishing company to not only codify the statutory portions but also create additional annotations to explain the application of the law in practice. When enacting the code, the State merged the statutory portion with the annotations to create the Official Code of Georgia Annotated (O.C.G.A.). Georgia sought to retain the copyright in the O.C.G.A.

Years later, Carl Malamud and Public.Resource.Org, Inc. (Public Resource) challenged this construction. He alleged merging the statutory code with the annotated version transformed the annotations into government edicts, which are uncopyrightable. After scanning every page of the O.C.G.A., Malamud placed the entire code online and sent letters to Georgia's Code Revision Commission informing them of his endeavor. The ensuing litigation challenged the balance between states' authority to own rights to the work the states create and citizens' rights to access the laws that govern them. While ignorance of the law is said to be no defense, this dispute teed up the question of just how much and what parts of the law citizens are entitled to access. In fact, days before press time for this note, the U.S. Court of Appeals for the Eleventh Circuit, which heard Public Resource's appeal, issued an opinion transforming Georgia's ownership interest in the O.C.G.A.

Part II of this publication provides an overview of the evolution of the judicial analysis regarding the copyrightability of judicial opinions and statutory text and examines the status of federal copyright law regarding the copyrightability of statutory material. Part II also includes a state survey describing various state approaches to protecting the laws and annotations that states create. Part II concludes with a discussion of the legislative history of codification in Georgia and the litigation the state has already faced regarding the O.C.G.A.

Part III explains Carl Malamud's effort to create greater public access to government documents around the country and Georgia. Additionally, Part III includes a discussion of the litigation in Georgia brought by the Code Revision Commission against Public Resource. In light of the Eleventh Circuit's recent decision, Part III concludes by arguing that Georgia should amend O.C.G.A. 1-1-1 to comply with the decision while avoiding losing all rights to the annotations.

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