A Nation of Laws, Not Legal Fees

(Bloomberg Opinion) -- So it turns out that law just wants to be free.

As in, free of charge. That’s the implication of last week’s decision from the U.S. Court of Appeals for the 11th Circuit, holding that the state of Georgia may not claim copyright in the official annotations to its laws.

Let’s start at the beginning. Everyone agrees that neither the state nor federal government can copyright its statutes. Take any page of law, and you can download it, upload it, photocopy it, print 1,000 copies, and nobody can say boo.

But what about annotations? The law books are thick with commentary saying how the rules have been interpreted. The notes are crucial in helping people figure out what’s legal and what isn’t. Typically, they’re provided by private businesses, which routinely copyright their handiwork. What makes Georgia unusual is that all those notes about interpretation and application have been officially adopted by the state’s general assembly.

And the state insists that all of the annotations are copyrighted.

Enter Public.Resource.Org, which in 2013 purchased the entirety of the Georgia state code, annotations included – and posted it online. When the group refused to take the code down, Georgia sued in federal court for copyright infringement, and, at the trial level, won an injunction. It’s that injunction that the 11th Circuit just overturned, in a case called Code Revision Commission v. Public.Resource.org.

The opinion, by Judge Stanley Marcus, is almost lyrical. “The People,” Marcus writes, with somber capitalization, “are ultimately the source of our law.” True, “lawmakers and judges are draftsmen of the law,” but “whatever they produce the People are the true authors.” And then there’s this:

When the legislative or judicial chords are plucked it is in fact the People’s voice that is heard. Not surprisingly, then, for purposes of copyright law, this means that the People, as constructive authors are also the owners of the law. And in this way, any work of which the People are the constructive authors is intrinsically public domain material and is freely accessible to all so that no valid copyright can ever be held in it.

Period. Full stop. No exceptions. If the government produces a work, it must be “freely accessible.” And one might even add a nice due process principle here: If ever a statute or regulation is hidden behind a paywall, make it unenforceable. Period. Full stop. No exceptions.

Which brings us to the problem of prying documents out of the federal courts. That’s right, I said federal courts —  such as, for instance, the U.S. Court of Appeals for the 11th Circuit, which just handed down this wonderful opinion.

In truth, the federal judiciary is busy playing catchup. Back in the 19th century, the U.S. Supreme Court affirmed that judicial opinions similarly cannot be copyrighted. And, as a rule, they’re not hard to access for free.

But what about the rest of what happens in a case? All the filings and motions? U.S. Representative Dave Collins, a Georgia Republican, has introduced legislation that would make online access to federal court records free — which, at the moment, it isn’t.

You can usually find (sometimes with a bit of work) free copies of actual decided federal cases. But if you want to read a brief or a motion or an affidavit, you have to go to a site called Public Access to Court Electronic Records (or Pacer), where you’ll be charged up to 10 cents per page for your search. This doesn’t sound like much, until you realize that you might have to hunt through hundreds of pages to find what you want.

Pacer has had a lot of problems over the years. Among the biggest is security. A 2015 study by the Federal Judicial Center found nearly 17,000 instances of unredacted Social Security numbers on documents available on the database. That’s right: The same branch of the government that you go to for relief when your personal information is stolen from a credit bureau turns out to be unable to protect your personal information (although the study also credited the courts with having “made progress” in protecting private information).

Critics have pointed to Pacer documents that include names of minor children and identifying information about Secret Service agents. A 2008 download of millions of files by the late activist Aaron Swartz discovered, among other things, unredacted medical records and the names of confidential federal informants.

There are rules that require the protection of nearly all of this information, but they apply to the parties who file the documents — not the courts. Judicial staff apparently make some effort to monitor documents for data that should be private, but to screen by hand every one of the many millions of pages filed each year would be beyond the resources of the courts. Most documents are properly redacted, but marketers and scammers are known to scour court filings for any that aren’t.

Unfortunately, the Collins legislation doesn’t deal with the security problems. But for what it does do, the bill is a masterpiece of brevity — by my count, well under 600 words. All documents filed in court (except those under seal) would be available online within five days; and all could be viewed for free. Yes, the judicial branch would lose the roughly $150 million it earns each year from Pacer fees, but for the federal government that’s not even a rounding error.

We all talk about the importance of transparency from those who govern in our name. But government’s not being transparent when it charges us money to learn what it’s doing.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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