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Georgia v. Public.Resource.Org, Inc.

State’s Annotations to Collected Statutes are Not Copyrightable

Georgia v. Public.Resource.Org, Inc., __ U.S. __, 2020 WL 1978707 (Apr. 27, 2020) (Opinion by ROBERTS, C.J.; dissenting opinion by Thomas, J.; dissenting opinion by Ginsburg, J.) (11th Cir: MARCUS, Hull, Bucklew) (D. Ga.: Story) (5 of 5 stars)

Supreme Court affirms 11th Cir’s judgment that annotations in the Official Code of Georgia Annotated, prepared by Lexis under a work-for-hire agreement with Georgia’s Code Revision Commission and approved by Georgia’s legislature, are not eligible for copyright protection. Reviewing precedent in Wheaton, 8 Pet. 591 (1834), Banks, 128 U.S. 244 (1888), and Callaghan, 128 U.S. 617 (1888), the opinion reasons that “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Op. at 9. It describes how the Commission (the annotations’ “author”) qualifies as a legislator for purposes of this test. Georgia’s legislature created and funds the Commission, the Commission consists largely of legislators, and the legislature approves the Commission’s work before the official code can be published. The opinion also notes that per the Georgia Supreme Court the Commission’s work is “‘within the sphere of legislative authority.’” Id. at 10 (quoting Harrison, 260 S. E. 2d 34 (Ga. 1979)). Citing Harrison, the opinion reasons that the Commission creates the annotations “in the ‘discharge’ of its legislative ‘duties.’” Op. at 10 (quoting Banks). That the annotations are non-authoritative explanations of the law, and largely summarize other materials, does not require otherwise, and the opinion analogizes to Banks’s holding that the statement of the case and headnotes prepared by judges are within the discharge of official duties.

That § 101 of the Copyright Act makes “annotations” eligible for copyright is not contradictory. While “annotations” may be copyrightable, “[t]he whole point of the government edicts doctrine is that judges and legislators cannot serve as authors when they produce works in their official capacity.” Op. at 11. That the Act bars copyright protection for U.S. Government works, but does not mention states, is also not contradictory; the federal rule is much broader than the government edicts doctrine as applied to states and there is no indication that it was intended to displace the doctrine. The opinion also declines to re-interpret “author” in this context, noting that Congress has repeatedly reused the term while expressing no dissatisfaction with the Court’s previous constructions. The opinion declines to be guided by any competing guidance in the Copyright Office’s Compendium of its practices. The opinion also declines to be guided by Georgia’s argument that this outcome will affect states’ ability to negotiate with parties like Lexis; “That appeal to copyright policy [ ] is addressed to the wrong forum.” Op. at 15.

The opinion declines to limit the government edicts doctrine to those works having “force of law,” finding that approach incompatible with the cases and lacking support in the statute.

Chief Justice Roberts’ opinion is joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh.

Dissent (Thomas): Justice Thomas would have held the annotations copyrightable. His opinion notes that, under precedent, “judicial opinions cannot be copyrighted.” Op. at 4. But ancillary works such as “notes that are prepared by an official court reporter” remain copyrightable, and he sees “no apparent reason why the same logic would not apply to statutes and regulations.” Id. He criticizes the government edicts doctrine (in the scope given by the majority) as lacking historical support, and resists the analogy of statutory annotations to judicial opinions. He also cites the Copyright Act as supporting copyrightability. He also criticizes the majority’s treatment of “authorship,” noting that it upsets the apparent understandings of twenty-five states having such annotations, fails to contextualize precedent such as Banks, and will be difficult to administer because the majority’s basis for finding the Commission an aspect of the legislature is unclear.

Justice Thomas’s opinion is joined by Justice Alito. Justice Breyer joins all but the opinion’s historical discussion of the meaning of “author” and footnote 6 (which criticizes as “simplistic” the majority’s treatment of judicial opinions and discusses various cases to urge that while non-authoritative judicial opinions may be crucial to understanding the law, statutory annotations do not play the same role).

Dissent (Ginsburg): Justice Ginsburg would have held the annotations copyrightable. Her opinion emphasizes distinctions between judicial opinions (which are non-copyrightable) and statutory annotations. Unlike opinions, annotations are generally prepared post hoc, are descriptive rather than prescriptive, and are given for the convenience of the population, and not the legislature itself.

Justice Ginsburg’s opinion is joined by Justice Breyer.