The Supreme Court just heard the State of Georgia's argument for copyrighting the law and charging for access to it

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The good news is that the justices seemed unmoved by Georgia’s argument.


I hope the court rules against the State of Georgia, but it’s almost refreshing to see a case before the Supreme Court that isn’t likely to be decided along strict partisan lines.


That’s because often the cases that make headline news are those decided along strict partisan lines. But the most common vote tally in Supreme Court decisions is a unanimous decision..


OK, maybe more accurate to say “it’s almost refreshing to see a case in which a potential split decision isn’t likely to be decided along partisan lines.”


But even that is pretty uncommon! Last Term there was a clear 5-4 conservative majority on the Court, but of the twenty-one 5-4 decisions, only seven were 5-4 with Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority.


I would think it common sense, that if you are going to hold me to any law, it must be readily available (free) and clear in language and intent. We (the citizens that voted you into office) have already paid for the writing and enough money has been allocated for you (the law makers) to publish it where “we” can see it.
I get PO’d for the same reasons when I have to pay for an ASTM standard that the laws require me to adhere to, and I have to pay again for each and every revision to the standard. The one for “biodiesel - ASTM D6751” is on revision 19.


So, are the annotations part of the law or just comments about it based on prior cases decided around the law?

Assuming, they’re not part of the law, not requiring anything. But, commentary based on cases related to the law. I could see them deciding that Georgia must produce a version that doesn’t include the annotations. An “everybody loses” scenario.

Obviously, having the annotations is a value add beyond just the law as it provides context and prior interpretation, making it hugely helpful and desired to have. That value add could be protected, but the law itself should not be restricted.

Edit: In a more ideal scenario, they would decide that by only providing the annotated version, it loses copyright protection until they produce one that isn’t annotated.

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I see what you are saying.

Today, it feels like there are two choices for states. Either defer to a third party for code development and pay them (with tax money) for the right to openly publish the code or incorporate a third party code and charge those that need to access the code. I’ll never need the elevator codes so I prefer the latter method, but I get why, on principle, the code should be made available and thus we should all pay for it.

The easy way out of this for states is to remove references to specific codes but require insurance and inspections instead. Want to build an elevator? Okay, you must have it inspected and insured. The inspector and insurance company will require the elevator to adhere to a third party code.

/agreed. However, the states passed laws that simply say I can’t sell my product unless it meets ASTM D6751, which means I must inspect it. My customers require me to back my product as to “fitness for use” which is another means of insuring it does what I say it does. (numbers in test scores don’t always tell the whole story)
To further add injury, Exxon (who does not make biodiesel, nor do they blend it into their diesel output*) has managed to maneuver one of their employees into the position of chair of the ASTM D6751 committee, to continually make it harder and harder to meet the standards without utilizing extraordinarily expensive processing systems and specific raw materials.

  • they were granted a waiver to the renewable fuel standard by the current administration’s EPA.

I’m glad I’m retiring. This crap makes my blood boil.


More than one organization produces annotated versions of the Georgia code, but only the LexisNexis version at issue in this case is partially paid for by the Georgia legislature and requires a full vote in the legislature to adopt as the “Official” annotated code.

My non-lawyer understanding is that the annotations are not code (their exact text is not a part of applicable law) but they are law in that they reference cases that are assumed to offer precedent (case law) that applies to those sections of code. A judge may (or may not) lend more credence to cases sited in an official annotation.

So the problems are two fold, by being official and voted on by the legislature the cases sited in the LexisNexis annotated version could be seen as more precedential than those sighted in another annotated version of the Georgia code, and there is no free official code available.

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In my job I mostly deal with codes from the ASME and the committees are 100% industry people. They are also mostly quite old and will retire soon and it isn’t clear who will replace them. Sitting on a committee was a type of public service and companies aren’t as willing to let their most senior and experienced engineers serve.

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Copyright questions aside, I can imagine the Justices would be sympathetic to Malamud’s cause, if for not other reason than this: lawyers, above all others, should know how difficult it is find valid copy of current state laws, much less make any sense of what the legislators freaking meant when they passed the shit.


Lawyers have aides who look up stuff for them. And if you can find a lawyer who is honest and willing to be open about his job, a combination almost as rare as hen’s teeth, he’ll tell you it isn’t important what the law says or what it’s supposed to mean. What’s important is what he can convince the judge and/or jury that it means.

This may be true for a few rich, elite, and/or politically-connected types, but the day-in, day-out rank and file most certainly do not have aides.

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Maybe so. But my second comment still applies, to all lawyers of every type, in every location, at every level.

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