US Supreme Court Ruling

May 25th, 2020

Aaaaaand the US Supreme Court has Roooooled!

The State of Georgia just lost in America’s highest Court.  And Courts have peculiar calling customs.  And Georgians talk funny.

Some years ago we had quiet discussions with Carl Malamud, the brains behind PublicResource.org.  His group was defending public law in the US, just as we were in Canada.  Just like us, Public Resource was publishing laws in full compliance with existing legal statutes.  And just like us, Public Resource was targeted for threatening the civil servants’ little racket of selling access to legislation.

The State of Georgia (driven by the civil servants that run it) was one such State to file lawsuits against Public Resource for copyright violation.

Well friends, both of us, Public Resource and PS Knight, were concerned that our respective processes might muddy the other’s respective legal processes.  In this, neither mentioned the other in public. 

Now however, Public Resource has pretty much won everything.  That’s right, the US Supreme Court has Ruled in their favour, it has upheld the public nature of law. 

The Ruling itself is full of goodies.  “No-one can own the law,” for instance.  Yes, that ought to be bloody obvious but, in this day and age, it ain’t so.  So the Ruling says its so, and that repeatedly.  Another instance; “Officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties.”  And so on…

This is awfully familiar stuff.  We argued this for eight years.  And the basis for it is likewise familiar.

“The State of Georgia,” sayeth the Ruling, “has one official Code; the Official Code of Georgia Annotated.”  That’s what this was all about.  That Code “includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations that appear beneath each statutory provision.”  And that last bit is the sticky bit.

You see, the “annotations” are the plain language explanations of how the law is applied.  In Georgia, and in most places really, legislation is not routinely edited to remove out of date laws or even laws that have been struck by the Courts.  In this, to know which laws actually apply -what laws are still in force and what compliance is required, the annotations are relied upon by everyone from law enforcement to the Courts themselves.  In function, they are the law, and so said the Ruling;

“The annotations typically include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials.” 

Ah, said the State of Georgia, but the annotations aren’t written directly by the State, they’re written by contracted parties.  Sound familiar?  The State argued that while some people may treat the annotations as laws, they are in fact not laws at all. 

Of course, one could question why the State of Georgia was inserting annotations into the text of law in the first place, if said annotations had no legal authority.  I digress…

The Supreme Court gave the arguments of the State of Georgia a thorough swatting.

Chief Justice Roberts noted that “a hard copy of the complete [ Code ] currently retails for $412.00.”  In this, compliance with Georgia law is dependent on the citizen’s financial ability to access that law.  If one cannot read the law, one cannot comply with it.

Further, Roberts quoted the Eleventh Circuit Ruling thusly;  “The animating principle [at stake] is that no one can own the law.  ‘Every citizen is presumed to know the law [and] it needs no argument to show […] that all should have free access’ to its contents.”

Then Roberts turned to the nature of the entities drafting these laws. 

“The Commission is not identical to the Georgia Legislature, but functions as an arm of it for the purpose of producing the annotations. The Commission is created by the legislature, for the legislature, and consists largely of legislators.”

Now, that should surely sound familiar.  The Canadian Standards Association (CSA) likewise functions as an arm of the legislature for it produces legislation.  Its committees are legislative committees whose members are legislators, and on this basis they enjoy legislative immunities for errors in the texts they generate.

Anyway, back to Roberts…

“Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution.”

See?  This is exactly the same argument used by the civil service in Canada.  This was their default defence in every Court Hearing over the last eight years.

Then Georgia tried to minimize the import of their annotations.  A big quote from the Ruling;

“Georgia minimizes the [ Code ] annotations as non-binding and non-authoritative, but that description undersells their practical significance. Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see laws requiring political candidates to pay hefty qualification fees, […] criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations -with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court.  Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal.”

Again, this is the same argument we made in Court, and repeatedly. 

And the Ruling warns, just like Justice Webb in our case in 2018, that if laws could be private property, then “States would be free to offer a whole range of premium legal works for those who can afford the extra benefit.  A State could monetize its entire suite of legislative history.”

Yup.  And that’s precisely what CSA is doing right now.

“And citizens, attorneys, non-profits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.”

Yup.  And we’ve warned about that repeatedly too.

Then the Ruling warned; “With today’s digital tools, States might even launch a subscription or pay-per-law service.”

Uh-huh.  Watch the language in this next bit, compare it for yourself;

US Supreme Court - “States would be free to offer a whole range of premium legal works for those who can afford the extra benefit.”

CSA – “[Selling] the ability to build your own customized online collection of standards or access to our pre-build collections for best value.”

US Supreme Court - “A State could monetize its entire suite of legislative history.”

CSA – “Looking for a suite of standards in a given subject area?”

US Supreme Court - “States might even launch a subscription or pay-per-law service.”

CSA – “[Purchasers] benefit from access up-to-date standards, whether purchased individually or as part of a collection…”

Actually folks, the CSA started pushing their subscription service right after Manson’s Law.  As everyone in the trades must comply with laws applicable to their work, so all must have access to those laws, so the CSA’s monthly subscription service is effectively a tax on tradespeople.  Of course, its smashingly profitable for CSA that way.

For all this, the Supreme Court Ruling included dissenting Opinions.  Curiously however, even the dissenters agreed with the basic premise of the majority Ruling.

Said dissenting Justice Ginsburg (with Justice Breyer); “Beyond doubt, State laws are not copyrightable.”

Integrity is the difference between the Rulings of the US Supreme Court and those of the Canadian Court system on this same issue. 

While both systems are imperfect, as are all systems peopled by people, and while the US system has influences of corruption within it, as do all such systems, the Court system in the US is less compromised than the Canadian system as regards unlawful civil service influence.  Much of this difference is due to scale.  The United States is about ten times’ the size of Canada, and larger systems are harder to corner than smaller ones. 

The Canadian system is riggable and influenceable without penalty.  And that’s how we’ve got Manson’s Law while the US has public law.

We’re working on this and, when things open up again in a few weeks’ time, we’ll have more to report on our efforts.  The war the Canadian civil service started in 2012 is far from over.