May 18, 2020

Supreme Court Uses Old Cases to Create New Problems in Denying Copyrightability of Annotations of Georgia’s Code

5 min

The Court's recent decision in Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ____ (2020), may have seemed like it boiled down to an esoteric argument over the correct interpretation of a series of cases decided in the nineteenth century – and it did – but the ramifications of the decision will certainly bubble up in 2020 and beyond. The Court, by a slim 5-4 majority, held that the annotations in Georgia's official code are not copyrightable. The alliances in the decision were somewhat unusual. The majority opinion was written by Chief Justice Roberts and joined by the four most junior justices, Sotomayor, Kagan, Gorsuch, and Kavanaugh. There were two dissents, one written by Justice Thomas, joined completely by Justice Alito and mostly by Justice Breyer, and one written by Justice Ginsburg that was also joined by Justice Breyer.

The work at issue, the Official Code of Georgia Annotated (OCGA), is Georgia's one official code. Its annotations typically include summaries of judicial opinions construing each provision, summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials. It is assembled by the Code Revision Commission, which is a state entity that consolidates the existing law and bills into a single code and contracts with a third party to draft the annotations. A majority of Commission members must be legislators, pursuant to Georgia law. The current annotations were created pursuant to a work-for-hire agreement with Matthew Bender & Co., a division of the LexisNexis Group. Lexis drafts the annotations under the supervision of the Commission, and the agreement includes a provision that any copyright in the OCGA vests in the State of Georgia. Public.Resource.Org, Inc. (PRO) is a nonprofit dedicated to opening public access to government records and legal materials. PRO posted the OCGA online and distributed copies. After sending multiple cease and desist letters, Georgia sued for copyright infringement as to the annotations, and PRO counterclaimed for declaratory judgment that the OCGA was in the public domain. The District Court agreed with the Commission that the OCGA's annotations are eligible for copyright, but the 11th Circuit reversed, pursuant to the government edicts doctrine.

Chief Justice Roberts described the government edicts doctrine simply: "officials empowered to speak with the force of law cannot be the authors of – and therefore cannot copyright – the works they create in the course of their official duties." Slip op. at 1. The doctrine derives from three cases from the nineteenth century: Wheaton v. Peters, Banks v. Manchester, and Callaghan v. Myers. In Wheaton, the Court rejected the plaintiff's assertion of a copyright interest in the justices' opinions. 8 Pet. 591, 618 (opinion) (1834). In Banks, the Court concluded that the official reporter of the Ohio Supreme Court did not have a copyright interest in the judges' opinions or nonbinding explanatory materials prepared by the judges. 128 U.S. 244, 249-51 (1888). Callaghan was a companion case to Banks in which the Court recognized that explanatory materials created by the reporter himself – rather than the justices – were copyrightable because they were written by someone who did not make the law. The majority took these precedents together and concluded 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." Slip op. at 9.

The majority therefore concluded that the annotations in the OCGA, because they were commissioned by legislators in the course of their duties, were not copyrightable. Id. at 1-2 ("We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia's annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.")

The two dissents took slightly different tacks. Justice Thomas's dissent focused on concerns of interpreting precedent and practical matters. His interpretation of the precedents cited by the majority is that while they disallow copyright of statutes and regulations, accompanying notes that "lack[ed] legal force" could be copyrighted. Thomas, J. (dissenting) at 4. Annotations, he explained, "do not represent the will of the people." Id. at 8. Furthermore, because 25 jurisdictions (including both states and territories) have official annotated codes, most of which are similarly administered by third-party contractors supervised by legislators, this decision would have major consequences, such as a lack of annotations available for the public if there was no financial incentive for the third-party drafters to write them. Id. at 11. Justice Ginsburg's brief dissent, meanwhile, articulated three reasons why the OCGA annotations could not be considered part of the Georgia legislature's lawmaking process: 1) the annotations are not written at the same time as the laws – they are commentary on previously enacted statutes; 2) the annotations are descriptive rather than prescriptive; and 3) their purpose is to be reference materials for the public. Ginsburg, J. (dissenting) at 2-3.

The decision reached in this case, whether born out of the most faithful interpretation of cases from the 1800s or from public policy concerns in 2020, will have consequences for the public. The annotated codes prepared with the involvement or supervision of legislators will now be openly accessible to the public because they are not copyrightable. Going forward, since there will be no copyright protection and thus no financial incentive, it is less likely that a third-party publisher will partner with legislators to prepare such annotations, leading to decline of legislator input and oversight of annotations and perhaps leading to a decline in work quality if not outright elimination of those annotations in some states. There will be different consequences in various jurisdictions, depending upon how those annotations are currently prepared and how quickly local legislatures move to address the issue. Both the majority and the dissent referenced Congress's ability to step in and adjust the law to change this outcome, but it is unlikely to be addressed quickly. For now, we will see whether the law – and the annotations that accompany it – will become more or less accessible to the public as a result. If you have any questions, please reach out to the authors or anyone else in the Venable IP Division.