http://ipkitten.blogspot.com/2020/04/us-supreme-court-rules-official-georgia.html
As a longstanding matter of public policy under U.S. copyright law, government edicts are
ineligible for protection. Justice Harlan described the principle in 1898: “no one can obtain the exclusive right to publish the laws of a state in a book prepared by him.” A question has however persisted: what falls within the category of laws?
On April 26, the US Supreme Court addressed this question in the context of annotations in the official code of the state of Georgia. All laws of the state of Georgia are printed in a single compendium, the Official Georgia Codes Annotated (OCGA).
In a 5-4 decision written by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh, the Court ruled that such annotations are not subject to copyright protection.
Let’s explore how the Court found that these annotations do not meet the authorship requirement for copyright protection in Georgia v. Public.Resource.Org.
In a 5-4 decision written by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh, the Court ruled that such annotations are not subject to copyright protection.
Let’s explore how the Court found that these annotations do not meet the authorship requirement for copyright protection in Georgia v. Public.Resource.Org.
Facts
The OCGA is compiled by the Code Revision Commission, a state body consisting of at least a majority of state legislators. The role of the commission falls “within the sphere of legislative authority.” The annotations are produced by a division of LexisNexis under close supervision and direction from the OCGA pursuant to a work-for-hire agreement. The agreement grants LexisNexis the exclusive right to distribute the OCGA, but requires LexisNexis to make available an unannotated version for free while limiting the price of the annotated version. The “hard copy of the complete OCGA currently retails for $412.00.”
Public.Resource.Org (PRO) is a non-profit organization dedicated to publishing laws and codes under the principle that such works belong in the public domain. The organization became well known in US copyright law following American Society for Testing and Materials v. Public.Resource.Org in 2018. In that case, the D.C. Circuit Court of Appeals considered the fair use defense in relation to PRO’s unauthorized upload of hundreds of technical standards that had been incorporated into the Code of Federal Regulations. Similarly, Georgia v. PRO concerns the organization’s upload and distribution of the OCGA.
The Code Revision Commission sued PRO in federal district court on behalf of the state of Georgia for copyright infringement. In 2017, the district court sided with the state of Georgia, ruling that – although official codes are not typically annotated – the annotations lacked the force of law and thus were subject to copyright protection. PRO appealed to the Eleventh Circuit Court of Appeals, which reversed upon consideration of 19th century case law. The Eleventh Circuit recognized that the “ultimate inquiry” is whether the work is “attributable to the constructive authorship of the People” as opposed to the individual legislator or judge that produced the work. The Eleventh Circuit’s reversal, although ultimately affirmed by the Supreme Court, stems from a three-factor test for authorship of government edicts that the Supreme Court declined to endorse on appeal.
Copyright and Government Edicts
| Every “meow” is another edict |
The Court notes that the principle of refusing to acknowledge copyright protection for government edicts is of apparent necessity. In 1834, the government edicts doctrine was identified in the first copyright case before the Supreme Court with no explanation:
“no reporter has or can have any copyright in the written opinions delivered by this court …the judges thereof cannot confer on any reporter any such right.” – Wheaton v. Peters
In 1888, the Court issued two decisions regarding the government edicts doctrine that inform its limitations today. First of all, the court ruled that non-binding explanatory materials prepared by judges in their judicial capacity as companion materials to their opinions are not subject to copyright protection. In the same term, the Court limited this holding by ruling that explanatory materials such as headnotes and syllabi produced by a non-judicial court reporter are subject to copyright protection. Considering those cases, the Court set a clear rule:
“Because judges are vested with the authority to make and interpret the law, they cannot be the ‘author’ of the works they prepare ‘in the discharge of their judicial duties.'”
This rule considers the author of the works and the context in which the works were produced, but not the force of law afforded to the works. The Court then noted that the government edicts doctrine has traditionally applied to legislative materials as well. As a result, the Court held that the government edicts doctrine provides that:
“[C]opyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.”
Application to Official Georgia Codes Annotated
The first factor of the governmental edict inquiry favored a finding that the OCGA is a government edict, created by legislators. Although the Commission is not itself the legislature, more than half of its members are legislators. Additionally, it is tasked with legislative authority in producing the OCGA; the Commission is to produce the Code, to be submitted to the legislature for approval. Finally, the Commission sued PRO on behalf of the Georgia legislature, indicating a clear relationship between the two.
The second factor similarly favored a finding that the OCGA is a government edict, including the annotations. Although the annotations did not carry the force of law, the Court ruled that the annotations fall within the course of legislative duties. Justice Ginsburg argued in her dissenting opinion, joined by Justice Breyer, that the non-authoritative status of the annotations indicated that the creation of the annotations would fall outside of legislative duties. The majority ruled that the annotations are akin to explanatory materials produced by a judge to go along with that judge’s opinion, and thus fall within the government edict doctrine.
“Force of Law”: Justice Thomas’ Dissenting Opinion
| Atticus does his best impression of Justice Thomas’ displeasure with this ruling |
The latter portion of the majority opinion primarily comprises a retort to Justice Thomas’ dissenting opinion, which was joined by Justice Alito and joined in-part by Justice Breyer. Justice Thomas argued that these annotations are merely accompanying notes lacking legal force, and thus are eligible for protection. He noted that the 19th century case law is consistent with an interpretation that government edicts are those works with force of law. Further, Justice Thomas cited
§ 105 of the Copyright Act – broadly exempting works authored by federal employees without a similar provision for state governments – and § 101 of the Copyright Act – specifically listing annotations as a potentially copyrightable type of work.
The majority opinion retorted Justice Thomas’ dissent, arguing that the dissent’s claim of textual support in the statute is overstated; the statute provides no basis for a distinction between those works with force of law and those without. Additionally, neither § 101 nor § 105 address the government edict doctrine. Further, although the annotations lack force of law, the majority contended that Justice Thomas undersold the significance of the annotations; the public would be greatly disserved by the monetization of legislative history or the concealing of subsequent decisions affecting a given statute behind a paywall.
Justice Breyer joined Justice Thomas’ dissent, save for part II A; this part is the rule that force of law is the deciding factor for government edicts. Justice Breyer additionally joined Justice Ginsburg’s dissent in full; Justice Ginsburg endorsed the two factor test for government edicts, but remained unconvinced that the annotations fell within the course of legislative duties.
Comment
Upon reading the exchange between Chief Justice Roberts and Justice Thomas, this Kat is content that the Court ruled as it did in this case. The force of law rule provided in Justice Thomas’ dissent would produce agonizing consequences for courts considering the potential copyright of non-binding legal materials. The force of law rule would broaden copyright protection to cover dicta within judicial opinions, judge-made headnotes, and legislative history. This extensive removal of works from the public domain would restrict legal literacy and perhaps violate the constitutional purpose of the copyright clause:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
It appears indeed desirable that works “attributable to the constructive authorship of the People” shall remain in the public domain.
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