By Sarah Weld
Libraries serve a crucial role as great societal equalizers, providing citizens with free places to find information about pretty much anything. But the state of Georgia has thrown up some serious roadblocks to anyone trying to read its state laws.
Today, the United States Supreme Court hears argument in Georgia v. Public.Resource.Org. This fall, Samuelson Law, Technology & Public Policy Clinic students Emma Lee ’21, Erin Moore ’21, and Aislinn Smalling ’20, along with clinic Professors Erik Stallman ’03 and Jennifer Urban ’00, filed an amicus brief asking the court to affirm a centuries-old principle that the law is free to all.
The clinic developed the brief on behalf of the American Library Association, Association of Research Libraries, Association of College & Research Libraries, and American Association of Law Libraries, supporting their commitment to provide the law to library patrons. Specifically, the brief explains that the government edicts doctrine—which establishes that the law is in the public domain—is crucial to libraries’ mission.
“Libraries play an important societal role that in part is supporting democracy by providing access to information,” Urban says. “Providing access to the law is a big part of that.”
The brief urges the court to reject Georgia’s attempt to claim copyright in its official annotated legal code, and ensure that Georgians can easily use their local libraries to consult state laws on legal issues like traffic tickets and child custody.
“For the government to function, particularly in a democracy, citizens must have access to the law,” Urban says. “It’s the government’s duty to publish the law. We pay for that as taxpayers.”
Loss to the public
Georgia made a deal with Lexis Nexis to prepare its Official Code of Georgia Annotated, then claimed copyright and allowed only Lexis Nexis to publish the code. This resulted in very limited public access.
Currently, patrons who want to read a free online version of Georgia law can only read an unofficial, unannotated version. To get even this, they must go to a website run by Lexis Nexis and click to accept terms of use that raise privacy issues.
All of this brings readers to a confusing and limited version of the law that can be read only in sections. Stallman and Urban note that the Lexis Nexis route creates serious deterrents to anyone put off by all the extra steps they have to follow, or anyone worried about their online activity being tracked—particularly those researching whether or not they may have broken the law.
The Sebastopol-headquartered Public.Resource.Org wanted to change this situation, so its founder, Carl Malamud, scanned all of the official Georgia code and made it available to the public online.
Malamud, whose organization’s mission is “Making Government Information More Accessible,” included the annotations that contain notes about where the law has been changed and other material that helps attorneys and the public understand the law. Georgia then sued Public.Resource.Org.
Connecting theory with the real world
For Samuelson Clinic students Lee, Moore, and Smalling, their two months of intense work was a worthwhile tradeoff for getting to learn from their experienced professors and plunge into the real world of litigation.
“We worked so much more closely with Jennifer and Erik than we initially thought we would,” Smalling says. “It was great when they would turn a draft around, and we could go through the changes they made in order to better understand the brief writing process and gain insight into how experienced lawyers write a brief.”
The students also had the opportunity to work alongside Jonathan Band of the Library Copyright Alliance, Ryan Clough of the Association of Research Libraries, and Emily Feltren of American Association of Law Libraries. Drawing from their experience and expertise representing libraries in copyright litigation and policy debates, these practitioners helped the students hone arguments and explore new research paths as they drafted the brief.
“Our ideas and contributions were really important in terms of figuring out where we needed to add additional factual information, and what paths we should go down for that factfinding. Everyone was valued on a substantive, egalitarian level,” Moore says.
The students conducted significant research nationwide with library experts, and court personnel in Georgia, to understand when patrons need to review the law and how accessible it is.
Valuable experience
“We got to ground the theories we learned in our classes to something tangible,” says Lee, who has a background in engineering. “For example, Erin and I both took copyright law this semester, and everything we learned in class applied directly to writing the brief and vice versa.”
Moore, who worked for years before law school and has missed the camaraderie of co-workers and supervisors, says, “I loved having clinic as a way to put into action a lot of the doctrinal things we’ve learned in our classes so far. I’ve also found it very valuable in terms of being able to do something that feels active and professional.”
For now, the future of citizens’ ability to freely access Georgia law is in the hands of the Supreme Court.
“If it’s in the public domain, it belongs to all of us and it’s completely free,“ Stallman says. “There are no restrictions on it. You can make all the copies you want. You can cut it up, put your own annotations on it, and make a derivative work for sixth graders.”
Adding that the law is supposed to be in the public domain and that “even Georgia admits that,” Stallman laments how the state’s agreement with Lexis “makes only a limited, unofficial version of the law publicly available. And that availability is conditioned on agreeing to terms that are inconsistent with the public’s ability to access and use the law freely and in full.”