Supreme Court Says Georgia’s Official Code is Public Domain, Including Annotations
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Mon, Apr 27th 2020 12:06pm — Mike Masnick
The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain. If you don’t recall, this case started years ago. The state of Georgia has a somewhat odd way of publishing its official code. Every new law is published, by state edict, in the “Official Code of Georgia Annotated” or the OGCA. Every new law explicitly says that it will be published in the OCGA. The tricky copyright issue came from the “Annotated” part of that. Annotations are (mostly) summaries of judicial interpretations of the law, and the state of Georgia outsourced the annotating to the private company LexisNexis. LexisNexis would write the annotations, for which it received a copyright, and then assign the copyright to the Georgia government. While Georgia put up a free version of the unannotated law, to get the annotated version — which, again, is the “official” law of the state — you either had to pay or to register with a website that included significant (and highly questionable) restrictions. In response, Carl Malamud, who has devoted much of his life’s work to making sure that the laws of the world are freely accessible to those who are ruled by those laws, posted a free copy of the OGCA to the web.
In response, Georgia first demanded he take it down, then it sued him for copyright infringement. The state initially won in the district court, but then was overturned on appeal, with the 11th Circuit saying that you can’t copyright the law. Both sides appealed to the Supreme Court — with Georgia wanting to continue locking up the law, and with Malamud wanting a precedent that applied beyond just the 11th Circuit. For what it’s worth, even after the appeals court ruled in Malamud’s favor, the state bent over backwards to try to block Carl Malamud from getting a copy of the OGCA. Yes, they didn’t want him to get a copy of the state’s official law, which is as crazy as it sounds.
Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can’t copyright the law.
The question in this case is whether that protection extends to the annotations contained in Georgia’s official annotated code.
We hold that it does not.
The key reasoning here, according to the majority opinion written by Chief Justice Roberts, is that authorship by a legislative body means that it’s authored by the government (even if the actual writing is then done by a third party):
Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, 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.
We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyright-able when created by judges who possess the authority to make and interpret the law. See Banks v. Manchester, 128 U. S. 244 (1888). 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.
While I’m glad about the end result, using this reasoning seems odd to me. Focusing on the authorship, rather than the fact that this is part of the law, seems like the wrong path. After all, Section 105 of the Copyright Act says that works created by the federal government are not subject to copyright, but that copyright is allowed for works created by a third party and then assigned to the government (which was the case here). The appeals court decision focused on the fact that “the law” has to be in the public domain. But the Supreme Court decided, instead, to go for a more narrow focus on “authorship.”
From there, it twists itself into a bit of a knot to argue that the annotations, despite being done by LexisNexis, were actually authored by the Georgia legislature. It does make clear that works created by legislatures cannot be subject to copyright, which is nice — but wasn’t much in dispute, frankly:
We hold that the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. 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. That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.
There still is some good language about how the public must be able to access the law:
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.
But then insists that the mechanism of this is to focus on authorship, rather than on whether or not something is the law. That has the potential to be a problem down the road as others may try to twist this to make it clear that others do the authorship and then assign the copyright to the law.
Our cases give effect to that principle in the copyright context through construction of the statutory term “author.”… Rather than attempting to catalog the materials that constitute “the law,” the doctrine bars the officials responsible for creating the law from being considered the “author[s]” of “whatever work they perform in their capacity” as lawmakers. Ibid. (emphasis added). Because these officials are generally empowered to make and interpret law, their “whole work” is deemed part of the “authentic exposition and interpretation of the law” and must be “free for publication to all.”
If judges, acting as judges, cannot be “authors” because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.Courts have thus long understood the government edicts doctrine to apply to legislative materials.
Right, but again, this wasn’t exactly the central issue in this case. It’s about whether or not the private authorship of the annotations can still get copyright. To be fair, there had been some questions about whether or not Section 105 of the Copyright Act (regarding the copyrightability of government works) only applied to the Federal government or also state governments, and this ruling has at least settled that uncertainty by saying in no uncertain terms that it also applies to state governments.
But here, the ruling focuses more on authorship and the majority opinion basically says that based on how the OGCA is created, the legislature is the author, rather than LexisNexis:
As we have explained, the annotations were prepared in the first instance by a private company (Lexis) pursuant to a work-for-hire agreement with Georgia’s Code Revision Commission. The Copyright Act therefore deems the Commission the sole “author” of the work. 17 U. S. C. §201(b). Although Lexis expends considerable effort preparing the annotations, for purposes of copyright that labor redounds to the Commission as the statutory author.
Indeed, the ruling seems to spend more time highlighting that the Code Revision Commission is a part of the legislature, than it does on the fact that LexisNexis wrote the original annotations. This has me wondering if this may effectively obliterate copyright on works created at the behest of governments from third party contractors (which had always been something of a loophole in the law). Under this ruling, it sure sounds like many works that we previously believed the government held a copyright on, because they were developed/created by an outside contractor at the behest of the government, now can be declared in the public domain as well.
Another interesting tidbit in the ruling regards how much deference should be given to the Copyright Office’s view of things. Here, the Supreme Court more or less says “well, not so much,” by noting that things like the Copyright Office’s “Compendium” of practices is a “non-binding administrative manual.” That’s certainly useful for situations in which the Copyright Office goes weird, but also is less useful when the Copyright Office gets things right (like with regards to whether or not a monkey taking a selfie gets copyright).
The majority opinion also brushes off Georgia’s claim that without copyright here it’ll never get private companies like LexisNexis to help it write annotations:
Georgia also appeals to the overall purpose of the Copyright Act to promote the creation and dissemination of creative works. Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution. That appeal to copyright policy, however, is addressed to the wrong forum. As Georgia acknowledges, “[I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”
Even outside of it being the wrong forum, this argument is silly. There are tons of companies that create things for the US government based on getting paid to do so without any need for a separate monopoly right.
Oh, and that reminds me, Chief Justice Roberts opens his decision by reminding people that copyright is a monopoly right:
The Copyright Act grants potent, decades-long monopoly protection for “original works of authorship.”
That’s nice to see since bringing up the “m” word seems to make a lot of copyright maximalists lose their minds.
As the majority ruling builds to its conclusion, it’s nice to see Chief Justice Roberts call out a perfect example of why the annotated version of the law should be accessible to all (though amusingly, to make his point, he has to point out that the OGCA will cost you $412 to check his citation — at least it did when he wrote it):
Georgia minimizes the OCGA annotations as non-binding and non-authoritative, but that description undersells their practical significance. Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads the economy-class version of the Georgia Code available online, he will see 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. See OCGA §§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at www.legis.ga.gov). 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. See §§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at https://store.lexisnexis.com/products/official-code-of-georgia-annotated-skuSKU6647 for $412.00).
If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range of premium legal works for those who can afford the extra benefit. A State could monetize its entire suite of legislative history. With today’s digital tools, States might even launch a subscription or pay-per-law service.
There’s also this bit of support for the law being freely available, and the fact that betting on fair use is a “roll the dice” situation (!!!).
If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties…. Some affected parties might be willing to roll the dice with a potential fair use defense. But that defense, designed to accommodate First Amendment concerns, is notoriously fact sensitive and often cannot be resolved without a trial…. The less bold among us would have to think twice before using official legal works that illuminate the law we are all presumed to know and understand.
That section admitting that the requirement of a trial to resolve fair use being naturally suppressing of free speech is… kind of amazing in its own right, and I imagine it may show up in other cases at some point.
There are two dissents — one from Justice Thomas (which Justice Alito joins, and Justice Breyer mostly joins) and one from Justice Ginsburg. Thomas’s dissent is… just weird. He basically says the law can’t be copyrighted, but obviously annotations can be — which by itself is perhaps an understandable argument, but most of Thomas’ dissent focuses on his new favorite focus: whether or not the Supreme Court should be taking earlier precedents and building on them:
In my view, the majority’s uncritical extrapolation of precedent is inconsistent with the judicial role. An unwillingness to examine the root of a precedent has led to the sprouting of many noxious weeds that distort the meaning of the Constitution and statutes alike. Although we have not been asked to revisit these precedents, it behooves us to explore the origin of and justification for them, especially when we are asked to apply their rule for the first time in over 130 years.
I mean, okay. But under that prism, shouldn’t we be going back to a copyright that actually lasted for a limited time and only applied to maps, books, and charts? Copyright has changed quite a bit from the time of the Constitution.
The Ginsburg dissent was to be expected, as she has always been the most copyright-maximalist Supreme Court Justice around, and never misses a chance to push for worse copyright law and locking up knowledge. It is a bit surprising that Breyer also joined in her dissent — since he, historically, has been on the right side of many copyright cases. That dissent argues that the annotations are separate from the law and deserve a copyright. She argues that while it’s okay to say that judge’s annotations cannot get copyright, that’s because it’s their job to interpret the laws. A legislature has a role in creating the laws — but not interpreting them, and thus (in her mind) official annotations are not within their direct responsibility:
One might ask: If a judge’s annotations are not copyright-able, why are those created by legislators? The answer lies in the difference between the role of a judge and the role of a legislator. “[T]o the judiciary” we assign “the duty of interpreting and applying” the law, Massachusetts v. Mellon, 262 U. S. 447, 488 (1923), and sometimes making the applicable law, see Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). In contrast, the role of the legislature encompasses the process of “making laws”—not construing statutes after their enactment.
And thus because it serves a different purpose (and is not binding) she says the annotations deserve copyright:
Because summarizing judicial decisions and commentary bearing on enacted statutes, in contrast to, for example, drafting a committee report to accompany proposed legislation, is not done in a legislator’s law-shaping capacity, I would hold the OCGA annotations copyrightable and therefore reverse the judgment of the Court of Appeals for the Eleventh Circuit.
In the end, the result is good, but the ruling is a bit messy, and not quite as nice as it could have been. But the key result: the laws of Georgia, including the annotations in the official code, should be available for anyone to read. And that’s a very good thing.