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IP/Entertainment Case Law Updates

Georgia v. Public.Resource.Org, Inc.

U.S. Supreme Court holds annotations to Georgia’s official legislative code not copyrightable under government edicts doctrine, which prevents officials empowered to speak with the force of law from being “authors,” within the meaning of the Copyright Act, of works created within the course of their official duties.

The state of Georgia sued the nonprofit organization Public.Resource.Org, alleging that the organization had infringed the state’s copyright in the annotations to its statutory code, the Official Code of Georgia Annotated (OCGA), by distributing a version of the annotated code for free and without authorization. The annotations had been prepared by Matthew Bender & Co. Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with Georgia’s Code Revision Commission (the Commission), and contained summaries of judicial opinions construing the corresponding statutory provisions, summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials. 

The district court ruled in favor of the state, holding that the annotations were eligible for copyright protection because, unlike statutory text, they had not been enacted into law. The Eleventh Circuit reversed, holding that the annotations fell within the “government edicts doctrine,” which traditionally prohibited judges from being considered “authors,” within the meaning of the Copyright Act, of works created within the course of their official duties. The animating principle of that doctrine is that no one person can own the law, which is “attributable to the constructive authorship of the People.” In considering whether the annotations fell within the scope of the government edicts doctrine, the Eleventh Circuit looked to “the identity of the public official who created the work; the nature of the work; and the process by which the work was produced.” The court found that each of those factors weighed in favor of treating the Georgia code annotations as government edicts authored by the people, and rejected the state’s assertion of a copyright interest. 

On appeal, the U.S. Supreme Court affirmed in a 5-4 decision, with Chief Justice Roberts writing for the majority, joined by Justices Sotomayor, Kagan, Gorsuch and Kavanaugh. The Court began by analyzing three Supreme Court cases applying the government edicts doctrine. The first, Wheaton v. Peters, decided in 1834, applied the doctrine to preclude the Supreme Court’s Reporter of Decisions from asserting a copyright interest in the Court’s written opinions. The second, Banks v. Manchester, decided in 1888, established that the official reporter of the Ohio Supreme Court did not hold a copyright in judicial opinions and nonbinding explanatory materials prepared by the state’s judges. In the third, Callaghan v. Myers, decided shortly after Banks, the Court upheld an official reporter’s copyright interest in several explanatory materials that the reporter himself had created—headnotes, syllabi, tables of contents and other similar materials—“since they came from an author who had no authority to speak with the force of law.”

The Court reasoned that these earlier opinions together stand for the proposition that officials empowered to speak with the force of law cannot be “authors,” under copyright law, of works they create in the course of their official duties. The same rationale that dictated judicially created materials cannot be subject to copyright protection also applies to legislatively created materials, the Court held. Accordingly, the government edicts doctrine serves to preclude copyright protection in works that are “(1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Applying this test, the Court found that the annotations to the OCGA are not subject to copyright protection. 

The Court first analyzed whether the annotations were “created” by the state. The Court held that they were. According to the Court, the Commission—which was “created by the legislature, for the legislature, and consists largely of legislators,” “receives funding and staff designated by law for the legislative branch,” and submits its proposed annotations to the legislature, which votes to “merge” the annotations with the statutory text and publish them in the official code—functions as an arm of the Georgia state legislature in preparing the annotations. The Court also held that the annotations were created within the course of the Commission’s legislative duties. The Commission’s preparation of the annotations, the Court noted, is considered an act of “legislative authority” under Georgia law, and the annotations provide commentary and resources that the legislature has deemed relevant to understanding its law. 

Georgia argued that Section 101 of the Copyright Act, which specifically lists “annotations” among the types of works eligible for copyright protection, authorized the state’s claims, but the Court rejected this argument. That provision, the Court stated, “refers only to ‘annotations’ … which … represent an original work of authorship”—and “the whole point of the government edicts doctrine is that judges and legislators cannot serve as authors when they produce works in their official capacity.” As the Court explained, while Section 101 may help explain why annotations are copyrightable when prepared by a private party or non-lawmaking official, it does not speak to whether those same materials are copyrightable when prepared by a judge or legislator.

Next, the Court rejected Georgia’s attempt to draw a negative inference from the fact that the Copyright Act excludes from copyright protection works prepared by an officer or employee of the federal government as part of that person’s official duties, but does not expressly exclude from copyright protection works prepared by state government officials. The “Federal Government’s decision to forfeit copyright protection for its own proprietary works,” the Court stated, “does not suggest an intent to displace the much narrower government edicts doctrine with respect to the States.” Unlike the Copyright Act, the government edicts doctrine does not preclude copyright protection for works created by non-lawmaking officials, the Court clarified. States are free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries and tourism offices, among other non-lawmaking entities. 

The Court also rejected Georgia’s argument that the Compendium of U.S. Copyright Office Practices supports the conclusion that the annotations are copyrightable. Although the Compendium states that “the Office may register annotations that summarize or comment upon legal materials … unless the annotations themselves have the force of law,” according to the Court, the Compendium does not specifically address the subject of annotations created by judges or legislators within their official capacities. If anything, the Court observed, the Compendium actually undermines Georgia’s claim, as it notes elsewhere that the Copyright Office will not register state government edicts, including legislative enactments and “similar types of official legal materials.”

The Court warned that adopting Georgia’s arguments would allow “everything short of statutes and opinions” to be copyrightable and leave states free to “offer a whole range of premium legal works for those who can afford the extra benefit,” such as digital “pay-per-law” services. Such an outcome, the Court lamented, would place a reader of the “economy-class version of the Georgia Code available online” without annotations at a disadvantage to “first-class readers with access to the annotations,” able to quickly assess the validity and viability of potential claims under individual statutes. 

Justice Thomas dissented, joined by Justice Alito and, in part, by Justice Breyer, to express the view that the Wheaton, Banks and Callaghan decisions preclude copyright protection only for texts with the “force of law,” and not any nonbinding accompanying annotations. First, Justice Thomas opined that because the OCGA annotations are, by their own terms, not law, they do not embody the will of “the People” in the way that statutory text does and are not properly regarded as government edicts. Second, he noted that the creators of annotations are incentivized by the copyright laws to create a desirable product that will eventually earn them a profit in a manner that judges and legislators are not. Finally, he opined that the annotations do not impede fair notice of the laws, since a person seeking information about changes to Georgia’s statutes can find that information by consulting the relevant legal decisions themselves. He lamented that the Court’s ruling might cause states to cease production of annotated codes altogether and render the majority’s fear of an “economy-class” version of the law a reality. 

Justice Ginsburg authored a separate dissent, joined by Justice Breyer. She focused on the second prong of the government edicts doctrine—whether the annotations were created in a legislative capacity, and opined that they were not, for three reasons. First, the annotations were not created contemporaneously with the statutes to which they pertain and consist only of commentary regarding statutes that have already been enacted. Second, the annotations are descriptive rather than prescriptive, in that they summarize writings (such as law review articles and other secondary sources) in which others express their views on the statutes rather than summarizing the legislature’s perception of what the law conveys. Third, the annotations are “given for the purpose of convenient reference” and their placement “in the OCGA does not alter their auxiliary, nonlegislative character.”

Summary prepared by Frank D’Angelo and David Forrest