A Research Tool Is Not Law: A Response to Code Revision Commission v. Public.Resource.Org, Inc.

Abstract

This article explores how the recent Eleventh Circuit decision, Code Revision Commission v. Public.Resource.Org, Inc., should be treated on appeal to the Supreme Court. The Court of Appeals held that a state could not claim copyright in the state’s statutes nor in the value-added materials the commercial publisher included in a state’s codification of its laws.

This article considers questions of what is law, who is the author, and the legislative process in which all states’ laws are made. This article concludes that the democratic foundation of state legislatures requires recognition of the electorate as owners and authors of the law but distinguishes research tools created by commercial publishers in a work for hire arrangement dictated by statute as a delegation a step too far to constitute law or “law like” for denial of copyright protection.

The question of copyrightability of value-added annotations to the law is currently pending review by the Supreme Court. This article examines the copyrightability of value-added content, considering the factors of author, authority, and process in the context of the creation of such content and concludes that this information, when assembled and selected by publishers, even when presented as part of a code with official status is copyrightable.

Keywords: copyright, code, official, unofficial, annotated, unannotated, law, sovereign power, guarantee clause, nondelegation doctrine, O.C.G.A., value-added, annotation, constitutional law

JEL Classification: K10