[18-1150] Georgia v. Public.Resource.Org Inc.

Dec 2, 2019

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Georgia v. Public.Resource.Org Inc.

Justia (with opinion) · Docket · oyez.org

Argued on Dec 2, 2019.
Decided on Apr 27, 2020.

Petitioner: State of Georgia, et al..
Respondent: Public.Resource.Org, Inc..

Advocates:

Joshua S. Johnson (for the petitioners)
Anthony A. Yang (Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioners)
Eric F. Citron (for the respondent)

Facts of the case (from oyez.org)

The Official Code of Georgia Annotated is a compilation of Georgia statutes accompanied by various annotations, “consisting of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.” Although the Code itself states that the annotations are part of the official code and that the statutory portions “shall be merged with annotations,” Georgia law says that the annotations themselves do not have the force of law. The annotations are prepared pursuant to an agreement between Mathew Bender & Co., an operating division of the LexisNexis Group, and the State of Georgia, under which the state exercises pervasive supervisory control by way of its Code Revision Commission, a body established by the Georgia General Assembly. The Commission is comprised of the Lieutenant Governor, four members of the Georgia Senate, the Speaker of the Georgia House of Representatives, four additional members of the Georgia House of Representatives, and five members appointed by the president of the State Bar of Georgia.

Public.Resource.Org (PRO) is a non-profit organization with a mission of improving public access to government records and primary legal materials. In 2013, PRO purchased all 186 volumes of the print version of the OCGA and its supplements, scanned them, and uploaded them to its website to be freely accessible to the public. It also distributed digital copies to Georgia legislators and other organizations and websites.

The Commission sent PRO several cease-and-desist letters on the grounds that publication infringes on the State of Georgia’s copyright in their work, but PRO persisted. The Commission sued PRO in 2015 in federal district court, seeking injunctive relief. PRO acknowledged its publication and dissemination of the OCGA but denied that the State of Georgia holds an enforceable copyright in the Code. The district court ruled for the Commission, finding that because the annotations of the OCGA lack the force of law, they are not public domain material. On appeal, the U.S. Court of Appeals for the Eleventh Circuit reversed, finding that because of the way they are written and integrated into the “official” code, the annotations in the OCGA are attributable to the constructive authorship of the People and are thus intrinsically public domain material. To reach this conclusion, the Eleventh Circuit examined the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created—finding that each of these markers supported the conclusion that the People were constructively the authors of the annotations.

Question

Does the government edict doctrine extend to—and thus render uncopyrightable—the annotations in the Official Code of Georgia Annotated?

Conclusion

Under the government edicts doctrine, the annotations beneath the statutory provisions in the Official Code of Georgia Annotated are ineligible for copyright protection. Chief Justice John Roberts authored the 5-4 majority opinion.

Under the government edicts doctrine, judges cannot be authors of the works they produce in the course of their official duties, regardless of whether the material carries the force of law. The same reasoning applies to legislators and the works they produce. The “animating principle,” amply supported by precedent, is that “no one can own the law.”

First, the Court considered whether the annotations are created by legislators. Although the annotations were prepared by a private company, the work-for-hire agreement provides that Georgia’s Code Revision Commission is the sole “author” of the work. Because of the way it is created, receives funding and staffing, and operates, the Commission is an “arm” of the Georgia Legislature with “legislative authority” that includes “preparing and publishing the annotations.” This link is bolstered by the fact that the Commission brought this lawsuit “on behalf of and for the benefit of” the Georgia Legislature and the State of Georgia.

Then, the Court considered whether the annotations are created in the course of legislative duties. Although the annotations are not enacted into law through bicameralism and presentment, the Court cited a decision by the Georgia Supreme Court holding that the preparation of the annotations under Georgia law constitute an act of “legislative authority.”

The Court found unpersuasive Georgia’s arguments to the contrary. First, Section 101 of the Copyright Act, which lists “annotations” among the kinds of works eligible for copyright protection, refers only to annotations that represent an original work of authorship, which the annotations cannot be when legislators are the authors. Second, the fact that the Copyright Act excludes from copyright protection works by federal officials but does not mention state officials does not lead to the negative inference that state officials must be eligible to be authors. Neither the Compendium of U.S. Copyright Office Practices, a non-binding administrative manual, nor the overall purpose of the Copyright Act, supports Georgia’s position.

The Court pointed out that if it adopted Georgia’s position and allowed “everything short of statutes and opinions” to be copyrightable, then “States would be free to offer a whole range of premium legal works for those who can afford the extra benefit.” That outcome would force many people “to think twice before using official legal works that illuminate the law we are all presumed to know and understand.”

Justice Clarence Thomas authored a dissenting opinion, in which Justice Samuel Alito joined and Justice Stephen Breyer joined in part. Justice Thomas argued that the Court should leave to Congress the decision whether to exclude state legislators from copyright authorship and that the majority misunderstands the word “author.”

Justice Ruth Bader Ginsburg authored a dissenting opinion, in which Justice Stephen Breyer joined, arguing that the annotations are not created in a legislative capacity because of key differences between judges and legislators.