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Who owns the law? In Montana, at least, we have clarity that the people do


When you are contemplating the amazing aspects of Montana, I doubt that many of you consider how our state publishes its code. I may be leaning too hard into nerdy librarian stereotypes when I write this, but I have been thrilled to work in a jurisdiction that has retained control over how its statutes and annotations are published. This is — yet another — situation in which Montana’s independent spirit has paid off. 
When meeting with school groups touring the Law Library, we begin in our Montana section thinking about what constitutes primary law, who makes it, and what that process looks like. It only takes a few examples to indicate that while legislatures strive for clarity, it is frequently the judicial branch’s role to settle disputes and ambiguities. Lawyers fight about what words mean, and some of the best ammunition in fighting about words are annotations.
In 2020, the United States Supreme Court took up the issue of whether code annotations can be protected under the Copyright Act in Georgia v. Public.Resource.Org, Inc., 140 S.Ct. 1498 (2020). The Official Code of Georgia Annotated is assembled by that state’s Code Revision Commission, but the printing and annotations are completed by Matthew Bender & Co., Inc., which is a division of LexisNexis Group. Id. at 1504-1505. Georgia argued that the annotations were covered by copyright and thus were not required to be made freely available to the public. Id. The Court looked to the “authorship” component of copyright and invoked the government edicts doctrine to find that judges and legislators “cannot be ‘authors’ because of their authority to make and interpret the law[.]” Id. at 1507. When government officials — who make the law — generate work that provides “authentic exposition and interpretation of the law” that work must be freely available to the citizenry. Id. Notably, this holding is limited to situations in which the government retains control over the publication. In many jurisdictions, legislatures indicate that Thomson Reuters (f/k/a West Publishing) and/or LexisNexis are the “official” code versions. 
Montana’s citizens can thank the Legislative Services Division for compiling and maintaining the Montana Code Annotated and the Annotations to the Montana Code Annotated, as opposed to outsourcing that task to private entities. Year after year, that office’s energy and effort has resulted in our state’s code and interpretive annotations. In the past year, the Montana State Library and the Montana State Law Library have digitized the state’s code (and annotations) from territorial times to present and made them freely available online. We have clarity in this jurisdiction: The people own the law.