Georgia Sues to Keep Law Away from its Citizens
May 20, 2016 (Mimesis Law) — Okay. We all went to middle school. We all know the big deal with Hammurabi’s Code. Somebody actually went and wrote down what the law was, so that people wouldn’t just make up new crimes to address outrages as they came. The code was short enough, and widely distributed enough, that even illiterate Babylonians were expected to have a pretty good idea what was prohibited.
Georgia has not yet come quite so far. See, we don’t provide our citizens with a decent, up-to-date version of our laws, known as the Official Code of Georgia Annotated. You can buy a set of books for a mere $385.94. Or you can use our “free online” version of the O.C.G (no annotations)., which runs so sluggishly and works so poorly that, at times, it will return no results for words like “murder,” “General Assembly” or “law,” and which, in its terms of service, says that you “ may not copy, modify, reproduce, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of this Web Site, except to the extent permitted above.“ So good luck bringing it to court to prove a point of law pro se defendants.
Enter Carl Malamud, who has made it part of his life’s work to drag public works into the public domain. He created the Indigo Book (formerly known as Baby Blue), which replicated and improved upon Harvard Law School’s byzantine system of legal citation. He has put up websites posting building codes so that people know how to build their homes without falling afoul of the law. And now, as part of his campaign of terror against the authorities, he has put up the O.C.G.A. for public consumption and is in the middle of a federal lawsuit, waged by the legislature to protect its odd monopoly on the printing of the law. The State is suing.
As the State sees it, while the laws themselves might not be copyrightable, it has an exclusive claim to the incredibly valuable annotations of the law that it produces. These aren’t, as one might hope, actual useful thoughts about how the law is supposed to apply. Rather, they just list the places where the law used to be found, and whether it was repealed as of the year of printing.
But let’s say you want to just copy the official code of Georgia without any of its annotations. Good luck, because to be “official” it has to comply with O.C.G.A. § 1-1-1, which literally can’t be hyperlinked for those without a Westlaw or Lexis account. That law requires that the Official Code of Georgia Annotated merge all of the State’s statutes with captions and annotations.
Still, maybe you’re sympathetic to Georgia. Maybe it’s just protecting all the hard work that Lexis does for it, for free, in exchange for being able to sell the OCGA at a hefty markup to consumers. But Georgia has sued in the past even where people simply publish rival versions of the code.
In 1982, it tried to sue a publisher for unfair competition, saying that printing another book full of its own thoughts on Georgia law might “confuse” consumers about what the official version of the code was. The State further complained that, while the other publisher had not stolen its annotations, it had unfairly copied all of its chapter and title headings (the things that let you know not to look for “murder” in the title on “aviation”).
The federal court didn’t much like the argument back then. Georgia failed to get a preliminary injunction and then quietly settled. But it goes to show that Georgia’s stringent defense of its copyright may have more to do with a cozy relationship to the publisher than any full-throated support for the idea that states must be incentivized to publish their own laws.
Now, in the interest of full disclosure, it is possible to google Georgia statutes and find them on places such as Justia. But these sites are inevitably five or six years out of date. This is a real problem for a pro se litigant in Georgia, since we changed our entire evidence code in 2013.
The net result is that, for the average person, it is difficult or impossible to find, for instance, an up to date version of the State’s criminal laws. As one investigative reporter found, even local libraries are unlikely to have the full code, let alone buy a new $400.00 set every single year to stay up to date.
In Georgia, ignorance of the law is no excuse. We have a statute that says that, actually, but I can’t give you the most up to date version. Yet, given the choice between public access and political gain, the General Assembly would rather keep its publisher happy than its citizens informed.