by Derek Gilna
The State of Georgia has sued to block publication on the internet of its Official Code of Georgia Annotated (“OCGA”) by a nonprofit organization called Public Resource. The group wants to publish the OCGA on the internet in order to make the state’s official laws freely available to the public.
Although the state has acknowledged that it cannot claim a legally-enforceable copyright in its statutory language or text of published state court opinions, it has advanced the argument that its own publication of the combination of the two legal resources can be copyrighted and made accessible only through a pay wall for a charge of up to $400.
Vera Eidelman, a William J. Brennan fellow of the ACLU Speech, Privacy, and Technology Project, states that, “Knowing the law is a right, not a privilege. We are in court today to argue that a state cannot put a copyright pay wall between you and the law that governs you. Georgia takes the troubling position that it can claim a private property right in its entire legal code.”
Public Resource purchased a copy of the OCGA and published it free-of-charge on the internet, sparking Georgia’s lawsuit. According to Eidelman, “The OCGA is the law that the Georgia Legislature editorially controls and publishes. It is the law that the state’s executive agencies enforce. And it is the official state law that courts apply and interpret. Most fundamentally, it is the law that an individual must read to know what behavior is legal and what isn’t.”
The reason access to the OCGA, rather than unannotated versions available for free online, is so important is because only it constitutes the currently applicable and enforceable law. The free versions provide the text of the statutes, even those that have been held unconstitutional by state courts. For example, by reading only the free versions, a person would conclude that sodomy is punishable by up to 20 years in prison and that private possession of pornography is illegal. Neither is true, but the statutes remain on the books. Courts have held both statutes unconstitutional, and the state does not enforce either. But you wouldn’t know that by reading the free versions of the state code.
The ACLU filed an amicus brief opposing Georgia’s position in the U.S. Court of Appeals for the Eleventh Circuit. “In our view, Georgia’s attempt to profit by limiting public access to the law harms at least three fundamental constitutional principles,” Eidelman argues. “First, it ignores the public’s role as the true author of the law. Second, without free access to the law, you lack the ability to figure out what is legal and what isn’t. Finally, you have a fundamental First Amendment right to see what your government is up to.”
We truly hope that the Eleventh Circuit recognizes the importance of the public having free access to the laws that govern what is legal, illegal, and dictate virtually every aspect of life.
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