On annotating the Georgia Code
This isn’t a piece about the law of copyright.
The Legal Genealogist writes about that all the time.
No, today, we need to talk about the copyright of the law.
Which is what Georgia tried to do, and the Supreme Court of the United States has just nixed.
Now… don’t get too excited. The decision of the Court, announced on Monday, in the case of Georgia v. Public.Resource.Org, Inc., is very fact-specific, and isn’t going to mean a whole lot outside of the legal publishing field.
Still, it’s an indicator of how the Court looks at copyright issues — and besides, as a legal geek, I find this stuff fun, especially since the cases ended up with the Court splitting 5-4 and not with the usual suspects on opposite sides. Before you read on, though, fair warning: this is a pretty limited case… and really geeky.
What happened here is that Georgia hired a private company, LexisNexis, to publish its official state laws. Any state can do that. But nobody — and I mean nobody — can get a copyright on the laws themselves. What judges write in their jobs as judges and legislators write in their jobs as legislators belongs to the public.1
That’s longstanding precedent in a rule called the government edicts doctrine, and the Court in this case couldn’t have been clearer in holding to that rule: “Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges and legislators.”2
The Court explained: “The animating principle behind this rule is that no one can own the law. ‘Every citizen is presumed to know the law,’ and ‘it needs no argument to show . . . that all should have free access’ to its contents.”3 And, it held: “Under our precedents, therefore, copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.”4
Now… all of the Justices pretty much agreed with those statements, which appear in the majority opinion: everybody’s on board with the notion that the law can’t be copyrighted.
What made this case a little different was that nobody was arguing about copyright over the text of the actual Georgia laws. What they were arguing over were annotations — comments written about the laws, explaining the laws — written by LexisNexis as a work-for-hire for the Georgia Code Revision Commission. According to the majority opinion, written by Chief Justice Roberts and joined by Justices Sotomayor, Kagan, Gorsuch and Kavanaugh:
The Commission is created by the legislature, for the legislature, and consists largely of legislators. The Commission receives funding and staff designated by law for the legislative branch. Significantly, the annotations the Commission creates are approved by the legislature before being “merged” with the statutory text and published in the official code alongside that text at the legislature’s direction.5
The majority of the Court rejected Georgia’s arguments that the comments were “non-binding and non-authoritative,” noting that “the economy-class version of the Georgia Code available online (includes) laws requiring political candidates to pay hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct, and exempting certain key evidence in criminal trials from standard evidentiary limitations—with no hint that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. … Meanwhile, first-class readers with access to the annotations will be assured that these laws are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal.”6
The majority said that wasn’t reasonable, and held that the only question a court needed to consider was “whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.”7
Justice Thomas, in a dissent for himself and Justices Alito and Breyer, said the mere fact that the comments weren’t binding was enough to say they weren’t law and so should be copyrightable.8 Justice Ginsburg, joined by Justice Breyer, also dissented, on the grounds that she wasn’t convinced that the annotations were done in an official legislative capacity, and so they didn’t fall within the government edicts doctrine.9
And what we end up with is a very fact-specific ruling: annotations written on behalf of and overseen by a legislature and integrated at the request of the legislature into a publication containing the laws of the legislature can’t be copyrighted.10
Not a question of the law of copyright as much as it is a statement about a copyright of the law. But one suggesting that the Roberts Court may be less willing to go out of its way to preserve copyrights than public domain advocates may have feared.
Cite/link to this post: Judy G. Russell, “Copyright of the law,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 29 Apr 2020).
SOURCES
- Georgia v. Public.Resource.Org, Inc., No. 18–1150, Supreme Court of the United States, slip opinion, 27 April 2020. ↩
- Ibid., slip op. at 5-6. ↩
- Ibid., slip op. at 8. ↩
- Ibid., slip op. at 9. ↩
- Ibid., slip op. at 9-10. ↩
- Ibid., slip op. at 17. ↩
- Ibid., slip op. at 18. ↩
- Ibid. (Thomas, J., dissenting), slip op. at 7. ↩
- Ibid. (Ginsburg, J., dissenting), slip op. at 1. ↩
- I should add that I spent decades working in legal publishing for a company that wrote every word of its own annotations, thankyouverymuch, and never ever as a work-for-hire or even with the input of the courts or legislature of the states we covered. So I’ve been kind of sitting back watching this case with popcorn handy. ↩
Another geeky IP decision involving a state in the same Term?! See Allen v. Cooper, No. 18-877, Supreme Court of the United States, (slip opinion) decided March 23, 2020. A unanimous decision, this case arguably has wider impact. The Court barred a private litigant from suing North Carolina for infringement of his registered copyrights. The Court held that Congress had not clearly abrogated 11th Amendment immunity in the Copyright Remedy Clarification Act of 1990. But the justices laid out a roadmap for Congress to cure the issue through section 5 of the 14th Amendment.