Fun With Copyrights

The US Supreme Court just handed down an interesting 5-4 decision on the scope copyright coverage. This case raises an issue that has been a personal pet peeve for the last 35 years or so, namely the copyrighting of scientific publications that are funded by tax dollars. In essence, taxpayers pay for the research and then have to pay again to read the results. That really pisses me off. This case is not spot on my peeve, but it is real close.

In Georgia et al. v. Public.Resource.org Inc., the court held that state law annotations in Georgia are not copyrightable. That holding is a medium deal, not a little deal. State legislatures write and pass bills, and then the governor signs the bills into laws. States then usually publish their state laws in two sets of volumes. The first is the language of the law with not much else. The second publication is annotated laws. The annotations are non-binding law but they help explain it. They appear beneath each statutory provision or law. The annotations usually include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, a list of related law review articles, and other reference materials. As one can imagine, the annotations are valuable for people who want to understand what the often ambiguous and hyper-complex language of the laws is written in actually means. Sometimes (usually?) it is impossible to understand the gobbledygook of the language of a law.

Digression: Another pet peeve

A common reason that lawsuits arise is due to the ambiguity and often sheer incoherence of the language the law is written in. Call it the legislative incompetence factor. The legislative incompetence factor is probably among the top two or three reasons for the filing of all lawsuits in the US. The reasons for legislative slop often is, not surprisingly, self-centered and political. In the video below, Senator Ben Sasse (R-NE), a reasonable looking and sounding, but far right anti-government radical, attacks US Senate legislative incompetence as a tool to avoid accountability at re-election time.





The point: In the video, Sasse makes these comments on legislative incompetence and why the Kavanaugh hearings were so toxic: “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

In the big picture, what Sasse is angling for is getting rid of government agencies and forcing congress to not be so sloppy and incoherent in writing laws. Shrinking government until it could be drowned in a bathtub isn't possible as long as congress remains sloppy and incoherent. Big agencies are needed to try to translate the garbage that congress routinely spews out as its work product, if that is what one can call it.

Why the Georgia et al. v. Public.Resource.org Inc. decision is important 

In my opinion, what Georgia was trying to do is to hide the laws from the people of Georgia as much as possible. They cannot copyright the statutes alone, but they tried the next best thing. By copyrighting the annotations, the legislature and governor can try to limit free public accessibility to the annotations. That makes it easier for (1) the legislature and governor to hide behind the ambiguity and slop in laws without annotations, and (2) special interests to deny that laws they bought and paid for benefit them and their interests or their power and freedom from regulation and taxes.

Maybe that is unfounded conspiracy theory, but maybe it isn’t. Consider what Sasse says about why legislation in congress is mostly incoherent slop. Also consider that the annotations in Georgia are assembled by the Georgia Code Revision Commission. That is a state entity composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel. In other words, it is another example of my pet peeve #2, namely taxpayers pay legislators to write laws, bad as they are, and then they have to pay a second time to try to figure out what the hell the nincompoops in the Georgia legislature were trying to say or hide, as the case may be.

The 5-4 split

The split here was not along pure party lines. Roberts, wrote the majority opinion and Sotomayor, Kagan, Gorsuch, and Kavanaugh joined in. Thomas wrote a dissenting opinion, that Alito, joined, and Breyer partly joined. Ginsburg wrote her own dissenting opinion, which Breyer joined. The dissents focused on the fact that the annotations are not binding legal authority and thus they are copyrightable content. On that latter point, Roberts wrote that “annotations published by legislators alongside the statutory text fall within the work legislators perform in their capacity as legislators.” Georgia argued that people wanting access to the annotations could get it. That is true, but it (i) increases the burden on researchers to assemble relevant information, and (ii) could still lead to annotations that are very different from what the legislature may have had in mind.

In essence, trying to make it harder to get annotations looks to me a lot like an effort of the Georgia legislature and/or governor to hide what they are doing as much as they can. That's the essence of authoritarianism and it makes corruption a little easier.