Although the Court of Appeals reached the correct result in this case, there remains substantial uncertainty and division among the circuits as to which documents a state or local government may exclude its citizens from accessing under the auspices of copyright law. As a result, Respondent agrees with the petition in seeking clarity in the law, and amici agree with that acquiescence in the petition. This Court should resolve that uncertainty and uniformly define the ambit of the state’s ability to assert copyright in its works.
The present case is exceptionally important because it touches upon the relationship between a sovereign and its citizens with respect to copyright law. The case thus implicates least four critical interests: individual rights under the First and Fourteenth Amendments, foundational principles of republican self-governance, the public service work of libraries and journalists, and valuable private innovation that derives from accessible public information.
1. State assertion of copyright implicates fundamental rights protected under the Constitution. The First Amendment provides a qualified right of access to government information, and the imposition of copyright liability potentially undermines, if not outright conflicts with, that right of access. Due process under the Fourteenth Amendment also stands to be diminished if a state can leverage copyright to raise access barriers to important sources of legal information. Certainly these constitutional rights do not mandate access to all state-produced works, but they do mandate access to at least some sources of law. Clarity in the ability of states to assert copyright is consequently important to clarifying the boundaries of individual constitutional rights.
2. The ability of states to assert copyright in legal texts also raises questions about popular sovereignty and self-governance. The foundation of the American system of government is that sovereign power flows from citizens themselves, through the representatives that they elect or that are appointed at their behest. State assertion of copyright in legal texts is at odds with the corollary consequence that citizens are the effective authors of the law, and it is an impediment to citizens’ ability to oversee government through research and analysis of government legal works. Clarification of copyright law would help to overcome these challenges and, accordingly, to promote good governance.
3. Uncertainty about state copyright in legal information also stands to harm important public objectives of key civic institutions, including libraries, the press, and schools. These institutions serve at least two primary missions: to educate people on the law to produce an informed citizenry, and to maintain a public record of the activities of government. Especially in the digital age where documents are more easily produced and more often transient, copying of information is necessary to achieve these missions. Copyright can and often does interfere with that copying and thus those missions. The degree to which states may or may not assert copyright in their works thus defines the ability of librarians, reporters, and educators to execute public services.
4. Copyright in state legal information also has important ramifications for the private sector. Historical and contemporary experience shows that public information, including data produced by state and local governments, is a resource upon which much private innovation is founded. Indeed, cutting-edge artificial intelligence research today has frequently stemmed from government-produced information. To the extent that a cloud of uncertainty exists over certain state-produced information, potential private development based on that information is diminished. Given the hundreds of billions of dollars of value that government data has already created for private industry, clarification of the boundaries of copyright law in this case could have immense economic implications.
The question presented thus has important consequences ranging from private sector innovation to fundamental rights and principles of government. Certiorari should be granted.