Tuesday, July 2, 2019
Christina Frohock, University of Miami School of Law, is publishing The Law as Uncopyrightable: Merging Idea and Expression Within the Eleventh Circuit’s Analysis of 'Law-Like' Writing, in volume 73 of the University of Miami Law Review (2019). Here is the abstract.
The Eleventh Circuit recently issued an opinion in Code Revision Commission v. Public.Resource.Org, Inc. that meditates on the law as much as resolves a dispute. For that reason alone, attention should be paid. A commission acting on behalf of the Georgia General Assembly and the State of Georgia filed a copyright infringement action against a nonprofit organization that had disseminated annotated state statutes. The Eleventh Circuit took these modest facts and delivered a philosophical analysis of the nature of law, finding that statutory annotations are outside copyright protection because the true author of such “law-like” writing is “the People.” The court’s opinion respects democracy by amplifying the voice of the People. Such amplification works best, however, on narrow facts. Applied broadly, in line with the scope of the court’s philosophy, the opinion risks distorting the People’s voice by muting intragovernmental disagreements.That voice is more often cacophony than clarion call, and the loudest strain comes from the least representative branch. Focusing on the exercise of sovereign authority, a different area of copyright law supports the same case outcome. The law, along with law-like annotations, is uncopyrightable because its idea and its official expression merge.
Download the article from SSRN at the link.