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11th Circuit: Annotated code cannot be copyrighted

The 11th U.S. Circuit Court of Appeals has unanimously ruled that Georgia’s annotated state code cannot be copyrighted, marking a win for advocates of open law.

The appellate court reversed a lower court decision in which in an Atlanta federal judge ruled that open law advocate Carl Malamud violated copyright by posting a copy of the annotated state code on its website, ABA Journal reported.

The 11th Circuit held that the annotations carry the weight of state authority and that the code belongs to the people of Georgia, the opinion states.

“The question is a close one — and important considerations of public policy are at stake on either side — but, at the end of the day, we conclude that the annotations in the OCGA [Official Code of Georgia Annotated] are sufficiently law-like so as to be properly regarded as a sovereign work,” U.S. Circuit Judge Stanley Marcus writes in the opinion. “In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority. As a consequence, we conclude that the People are the ultimate authors of the annotations.”

Laws belong to the people and therefore cannot be copyrighted. However, annotations can be copyrighted if they are written by a private party. That was is the case in Georgia, because while the annotations are written by LexisNexis, they are considered to be part of the official state code, the opinion states.

“They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life,” the opinion states.

Malamud has since put the annotated state code back on his website.

 

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