Georgia vs. Public.Resource.Org

Georgia publishes an official code book that contains the text of every statute in force *and* a bunch of annotations explaining judicial decisions, summaries of state AG opinions, and related law review articles.

This code book is produced by a Commission established by the legislature. That commission consolidates bills into the state code and contracts with a third party to produce the annotations. The annotations are approved by the legislature before being published. The Commission’s work is paid for by a state appropriation as a legislative function.

The Commission claimed that the official annotated code is copyrighted, and as partial payment for the work that Lexis does to help produce the annotations, assigned to Lexis the *exclusive right* to publish the official annotated code. Lexis sells the official annotated code for $412 but makes an unannotated version available for free online.

A nonprofit whose mission is, in part, to promote free public access to government records and legal materials bought a printed copy of the official annotated code, digitized it, and posted it on its website.

The Commission ordered the nonprofit to cease violating the Commission’s copyright and then sued the nonprofit for copyright violation.

Today, a five person majority (Robrets, Sotomayor, Kagan, Gorsuch, Kavanaugh) of the Supreme Court held (https://www.supremecourt.gov/opinions/19pdf/18-1150_7m58.pdf) that the annotated code is not copyrightable.

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The Supreme Court decided almost two centuries ago that *judicial opinions* are not copyrightable, because the opinions are “the authentic exposition and interpretation of the law” and that, because every citizen is bound by that authentic exposition and interpretation of the law, the exposition and interpretation must be free for publication to all.

Headnotes, syllabuses, and other similar derivative works *are* copyrightable, as is a casebook which excerpts, contextualizes, and explains them — — but ONLY if those derivative works are written by *third parties*. As long as they are written by judges who have the authority to make or interpret the law, they cannot be copyrighted, and must be publishable by anyone who wants to publish them.

If headnotes, syllabuses, and other similar derivative works aren’t copyrightable when *judges* write them because judges have the authority to make or interpret the law and therefore their headnotes, syllabuses, and other similar derivative works must be available to the public for free, then surely they cannot be copyrightable when *written by the legislature*.

In general, the Court said this morning (in summary of something it’s been saying for centuries) copyright does not vest in works that (1) are created by judges and legislators (2) in the course of their judicial and legislative duties.

So the questions to ask are: were the annotations prepared by legislators, and (if so), was their preparation done in the course of legislative duties?

The answer to the first question, the Court says, is ‘yes’.

The Commission hired Lexis under a work-for-hire agreement. Under a work-for-hire agreement, *legally* the author is the person who hires the writer to do the job. So the Commission is the author for legal purposes.

The Commission, in turn, is an arm of the legislature, created for the purpose of codifying the legislative code and producing annotations. It is funded out of the legislature’s budget, a majority of it must be legislators, and the annotations have to be approved by the legislature before being published. The Georgia Supreme Court itself says the Commission is part of the legislature for legal purposes in Georgia.

The answer to the second question, the Court says, is ‘yes’. The annotations provide commentary and resources “that the legislature has deemed relevant to understanding its laws.” It’s just like the syllabus or head note attached to a judicial opinion.

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Justice Ginsberg, joined by Justice Breyer, objects to the notion that these annotations were created in a legislative capacity. The annotations are not created contemporaneously with the statutes (but are done later); they do not summarize the legislature’s perceptions and interpretations but rather third party’s perceptions and interpretations; and they are created for public reference rather than to help legislators draft the law.

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Justice Thomas, joined by Justices Alito and Breyer, object to the entire framework.

First, they argue, the decision holding that syllabi and headnotes prepared by judges were uncopyrightable didn’t say that the *state* couldn’t hold a copyright, just that the *judge* could not, and that the copyright law as written at the time didn’t cover state copyrights (but now it does).

Since syllabi and headnotes were never ruled uncopyrightable by the states, they argue, it doesn’t follow that legislative annotations are uncopyrightable by the states.

Besides, the annotations are not law. They are not binding. They’re just reference materials. Copyrighting them in no way interferes with the public having access to the law, so the underlying public policy justification for not allowing judicial opinions (and laws) to be copyrightable simply doesn’t apply.

Furthermore, this rule will be difficult to administer. Half of the states have a similar system. Almost every annotated code is produced under the supervision of either the legislative or judicial branch, and therefore any of those could become subject to this rule. This could backfire by causing staate annotated codes to disappear, meaning annotations are only available to those who can pay for privately produced annotations (which cost a lot more).

For Justices Thomas and Alito (Breyer didn’t join this part), this is yet another example of the Court uncritically extrapolating precedents the Court doesn’t properly understand, a bad habit which is distorting “the meaning of the Constitution and statutes alike.”