Georgia v. Public.Resource.Org, Inc.

Georgia v. Public.Resource.Org, decided April 27th, 2020. By a vote of five to four, in an opinion by Chief Justice Roberts, the Supreme Court affirmed the Eleventh Circuit and held that the annotations in the Official Code of Georgia Annotated are not copyrightable. Under the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of works they create in their official duties — and these annotations were authored by the legislature. Here's the brief.

Georgia has one official code — the Official Code of Georgia Annotated, or the O-C-G-A. It contains the text of every Georgia statute in force, and beneath each provision, a set of non-binding annotations: summaries of judicial decisions, summaries of opinions of the state attorney general, and citations to secondary sources.

The code is assembled by the Code Revision Commission, a state entity created by the legislature, composed mostly of sitting legislators, and funded and staffed through the legislative branch. The annotations themselves were prepared by a private contractor — Matthew Bender, a division of LexisNexis — under a work-for-hire agreement with the Commission. Under that agreement, any copyright in the O-C-G-A vests in the State of Georgia, acting through the Commission.

Public.Resource.Org, a nonprofit that posts legal materials online, published the O-C-G-A without permission. The Commission sued for infringement of its copyright in the annotations. The district court held the annotations copyrightable because they had not been enacted into law. The Eleventh Circuit reversed, holding them uncopyrightable under the government edicts doctrine.

The question was whether the government edicts doctrine bars copyright in the annotations. That doctrine grew out of three nineteenth-century decisions — Wheaton v. Peters, Banks v. Manchester, and Callaghan v. Myers — holding that judges cannot copyright the opinions and explanatory materials they prepare in their judicial capacity. In the third of those cases, by contrast, the Court allowed a private reporter to copyright similar explanatory materials — precisely because he had no authority to speak with the force of law.

The Court read those cases to establish a rule grounded not in a work's legal force, but in the identity of its author.

The animating principle, the Court explained, is that no one can own the law. The doctrine gives effect to that principle by construing the Copyright Act's term "author": those empowered to make and interpret law cannot be the authors of what they produce in that capacity.

The Court announced a straightforward rule.

Because judges cannot be authors of the work they do as judges, the Court reasoned, legislators cannot be authors of the work they do as legislators. And critically, the bar turns on who created the work, not on whether the work carries legal force.

Applying that framework, the Court took two steps. First, the author qualifies as a legislator: under the Copyright Act's work-for-hire provision, the sole author is the Commission, which functions as an arm of the Georgia Legislature — created by it, funded and staffed for the legislative branch, and composed largely of legislators. Second, the Commission prepares the annotations in the discharge of its legislative duties — the legislature approves them and merges them into the official code.

The Court rejected Georgia's argument that the doctrine should turn only on whether a work has the force of law. That approach, it said, had less footing in the statutory text than the traditional focus on the author's identity, and would let a State place non-binding judicial and legislative work — including dissents and legislative history — behind a paywall.

Justice Thomas dissented, joined by Justice Alito and in part by Justice Breyer. Justice Ginsburg dissented, joined by Justice Breyer. Both would have allowed copyright, reasoning that the annotations lack the force of law and resemble other explanatory materials that are ordinarily copyrightable.

Public.Resource.Org confirms that the government edicts doctrine is a rule about authorship. Works that legislators and judges create in their lawmaking capacity fall outside copyright whether or not they carry the force of law, because those officials cannot be statutory authors.

The Court drew express limits. It did not decide how the doctrine applies to officials outside the legislative and judicial branches, and it did not hold that annotations everywhere are uncopyrightable — only that these annotations, authored by an arm of the legislature, are not.

Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, decided April 27th, 2020. I'm Kyle Coleman. Thanks for watching.