Official Code, Locked Down: an Analysis of Copyright as it Applies to Annotations of State Official Codes

• Publication year: 2016

Official Code, Locked Down: An Analysis of Copyright as it Applies to Annotations of State Official Codes

Shellea Diane Crochet

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OFFICIAL CODE, LOCKED DOWN: AN ANALYSIS OF COPYRIGHT AS IT APPLIES TO ANNOTATIONS OF STATE OFFICIAL CODES

Sheika Diane Crochet^*

Table of Contents

I. Introduction..........................................................................................133

II. Copyright Law Pertaining to State Primary Law..................135

III. Copyright Protection Arguments................................................138

A. SILENT PERMISSION............................................................................139
B. ECONOMIC INNOVATION ARGUMENT............................................ 142
C. AVAILABILITY OF UN-ANNOTATED CODE...................................... 143
D. HISTORICAL CONSISTENCY/PROGRESS ARGUMENT..................... 144

IV. Public Access Arguments...................................................................145

A. SILENT PROHIBITION..........................................................................146
B. FAIR USE DOCTRINE............................................................................147
C. DUE PROCESS........................................................................................149

1. Copyright Misuse..............................................................................150
2. Introduction of Substantive Due Process............................................150

D. PRIMARY PURPOSE ARGUMENT......................................................... 151
E. WORK-FOR-HIRE VERSUS STATE ACTION........................................ 151

V. Getting to the Fundamental Argument...................................152

VI. What Is The Law?....................................................................................153

A. TEXTUALISM.........................................................................................153

1. Applying Textualism to Annotated Codes........................................155
2. Equal Protection Clause...................................................................157

B. FIT AND JUSTIFICATION.....................................................................158

VII. Analysis...................................................................................................... 159

A. DEFINING "THE LAW"........................................................................159
B. SUBSTANTIVE DUE PROCESS..............................................................160

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VIII. Conclusion...............................................................................................163

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I. Introduction

In 2015, for the first time in history, a party filed a counterclaim challenging state-held copyright protection of annotated codes in court.¹ The annotations of state codes are specifically grouped portions of judicial decisions relating to a specific code section that identify how courts have interpreted the statutory text in practice. To state supporters (supporters of copyright protection), copyright protection ensures the integrity of invaluable legal research aids by assuring compensation for those creating annotations. For challengers (public access supporters), prohibiting public access to annotated codes is a violation of a basic constitutional right to knowledge of the law. At the center of the two arguments is one fundamental issue: what makes up the law?

Notably, in May 2016, both parties to the aforementioned Georgia suit filed for summary judgment on the notion that there is no genuine issue of material fact.² If the court determines the issue the way my research leads me to believe that it will, both motions should be rejected. To accept that there is no genuine dispute of material fact is to ignore the central issue of this case: whether the annotations are "the law." The parties disagree on this central element and should have the chance to take their case to a Judge or Jury. The parties are awaiting the court's decision in spring of 2017. If the court rules that one of the two motions be granted, then I assert that the court has erred in the sense that it will have essentially foregone due process for efficiency. This is a case that should go before the court for the fact-finder to determine whether the annotations are part of "the law."³

If the substantive case reaches the court and the supporters of copyright protection win in the current Georgia case, more than half of the States will be affected and could face future litigation. While states will be judged on a case-by-case basis, the decision in the pending Georgia case can drastically influence the future of state-held copyright to annotated codes.

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As of 2011, approximately twenty-eight states required courts to reference copyrighted official codes.⁴ As of 2014, two states alone, Montana and Illinois, had state statutes outlawing the copyright protection of state primary code material.⁵ After legislative hearings in Oregon, cases regarding primary materials in California, and constitutional analysis, the Supreme Court ultimately held that states may not hold the copyright to their statutory codes.⁶ However, many states still hold copyrights to their official codes by asserting that the annotations of the codes are subject to copyright protection.

There are two ways states hold copyright to annotated codes. First, state legislators or staffers may create the annotations granting the author, the state, the copyright. Second, the state may create a work-for-hire contract with a private company, such as LexisNexis or Westlaw. A work-for-hire contract is a written contract by which the private company gains profits for their work in exchange for the state holding the copyrights to the annotations.

Notably, there are areas other than annotated codes where states have been granted copyright protection of government-created and work-for-hire products. For example, the State of Florida holds the copyrights to Florida.Org, a government-created website that helps individuals find particular agencies or online government services.⁷ Additionally, in County of Suffolk v. First American Real Estate Solutions, the Second Circuit found that counties, like states, can hold the copyright to their tax maps created in a work-for-hire contract.⁸

This Note seeks to identify whether states can constitutionally hold copyright to annotated codes either as authors or through work-for-hire contracts. First, this Note will review the background of copyright law as it applies to copyright of state primary law. Second, this Note will analyze the arguments set out by supporters and rejecters of copyright protection for state annotated codes. Third, this Note will delve into the ideological question at hand and why defining the term "law" is the root of the entire issue. Following, this Note will explain different theoretical approaches to defining "the law."

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When applicable, the Note uses the current Georgia case as an analogy to explain the application of the analysis in a work-for-hire scenario and the Oregon case for application of the analysis to circumstances in which legislative staff create annotations. Finally, this Note explains why the court is currently more likely to find in favor of the state where the state holds copyright to its annotated code through a work-for-hire contract but not in a case where the state legislative staffers create the annotations.

II. Copyright Law Pertaining to State Primary Law

Copyright law originates in Article I of the United States Constitution and has been amended, narrowed and broadened through legislation and interpretation.⁹ The Patent and Copyright Clause of the United States Constitution grants the national legislature the power to protect works of art and science for those who created them.¹⁰ The purpose of the clause is "to encourage people to devote themselves to intellectual and artistic creation,"¹¹ by offering guaranteed protection of their creative works.

By the necessary and proper clause,¹² Congress has the power to pass legislation for the purpose of facilitating constitutional copyright in arts and sciences. In so doing, Congress passed the Copyright Act of 1909 and later the Copyright Act of 1976. Throughout the amending of the Copyright Act, Congress has not added any explicit language regarding state government works.

The lack of explicit language has not stopped the Court from interpreting the statute to apply to states at least in some instances. For example, courts have long held that the law of the land is not protected under the Copyright Act, regardless of whether the land in question is a state and not the country as a whole.¹³ That fact, however, is not founded upon the text of the Copyright Act. Instead, it is a prime example of statutory silence suggesting a lack of statutory authority.

There are a few sections of the Copyright Act of 1976 that are vital to understanding the issue that this work intends to resolve. Section 105 of the

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Act exempts works created by the federal government from receiving copyright protection.¹⁴ Section 105 is important because it, along with Section 101, prohibits the federal government from copyrighting its laws, codes, or judicial opinions.¹⁵ Notably, section 105 does not expressly prohibit copyright protection for products created for the federal government through work-for-hire agreements with private entities.¹⁶

Section 105 is also silent on state governments' authority to copyright legal materials.¹⁷ In fact, no section of the copyright act precludes states from copyrighting works of their own government.¹⁸ However, courts have determined through precedent and interpretation that, like the federal government, "states [too] cannot claim copyright in primary legal materials such as judicial opinions and statutes."¹⁹ The finding is largely based in due process under the Constitution because...