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Who Gets to Publish State Laws?

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By Casey C. Sullivan, Esq. on February 16, 2016 1:15 PM

When you need to look up a state code, where do you turn? Westlaw? FindLaw? (Our California and New York state codes are excellent and newly updated, by the way!) The state's website?

For some states, like Georgia, where you turn for state laws depends on who has the exclusive rights to publish those laws, but a new court battle between legal publishers is putting those agreements in question.

You Can't Copyright the Law

Two smaller legal publishers recently took each other to court over the right to publish Georgia's state laws. In January, the legal research company Casemaker, through its parent company Lawriter, sent its competitor, Fastcase, a letter demanding that Fastcase remove the Georgia Administrative Rules and Regulations from it offering. Casemaker had an agreement with the Georgia Secretary of State granting it exclusive rights over those rules and regulations, Law Sites reports.

On February 3rd, Fastcase sued in the Northern District of Georgia, seeking a declaratory judgement that the agreement between Fastcase and Georgia is invalid. The Georgia regulations are "public law published under statutory mandate," the complaint explains, "and are in the public domain. Defendant cannot claim any exclusive right in, to, or in connection with, the Georgia Regulations."

They cite a host of precedent to support their position, from the Supreme Court's 1834 decision in Wheaton v. Peters, finding court opinions to be outside copyright protection, to the USPTO's current refusal to grant protections to published law. Additionally, Casemaker hasn't made any improvements or additions to the laws which would otherwise render them copyrightable, Fastcase alleges.

A Continuing Battle -- Against Terrorists?

If Casemaker's claim that only it can publish Georgia's regulations seems extreme, it pales in comparison to Georgia's position. In July, the state sued free information activist Carl Malamud, describing him as a terrorist for publishing the state laws online.

On his website, Public.Resource.org, Malamud provided a free, searchable version of the entire annotated state code. The state described that as an attempt to "terrorize" Georgia into publishing the laws "under Malamud's terms."

While the claims of terrorism are ridiculous, to say the least, Georgia has made a stronger case than Casemaker. Malamud published the laws along with annotations created by LexisNexis. Legal publishers like Lexis and Westlaw (FindLaw's sister company) employ armies of attorneys who key, comment on, and connect laws, generally giving them their gloss.

Both cases are ongoing, but could seriously impact access to state codes in the future.

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