Supreme Court Clarifies Edicts Doctrine in Georgia v. Public.Resource.Org
In Georgia v. Public.Resource.Org, Inc., the Supreme Court voted by five-to-four to expand the government edicts doctrine for the first time since 1888. 140 S. Ct. 1498 (2020).
The State of Georgia had claimed copyright in the annotations contained in its only official collection of law, the Official Code of Georgia Annotated (OCGA). Id. at 1504. Public.Resource.Org (PRO), a non-profit organization aiming to expand access to government documents, blatantly flouted Georgia’s claimed copyright by posting a digital version of the OCGA on its website and by distributing digital copies of the OCGA to Georgia state legislators. Id. at 1505. After PRO ignored several cease-and-desist letters, Georgia sued PRO for copyright infringement pertaining to the annotations. Id.
Georgia’s basis for its belief in the copyrightability of its works rested primarily in three sources. See generally, e.g., Brief for Petitioners, Georgia v. Public.Resource.Org, Inc., 590 U.S. ___ (2020) (No. 18-1150). First, Callaghan v. Myers, 128 U.S. 617 (1888), found that annotations in a legal reporter may be copyrightable by its publisher. Id. at 7. Second, the decision of Callaghan was subsequently followed by several cases recognizing the copyrightability of annotations and the express inclusion of “annotations” in the Copyright Act, 17 U.S.C. § 101, and in the United States Copyright Office’s treatise on copyrightability. See, e.g., Code Revision Comm’n v. Public.Resource.Org, Inc., 244 F. Supp. 3d 1350, 1356 (N.D. Ga. 2017), rev’d and remanded sub nom. Code Revision Comm’n for Gen. Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), aff’d sub nom. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020). Finally, the Copyright Act expressly prohibits copyright in all works created by the federal government, but does not prohibit state government copyrights, indicating that Congress intended to permit states to copyright documents if they saw fit. See 17 U.S.C. § 105 (2012).
Under this rubric, Judge Richard W. Story of the Northern District of Georgia, Atlanta Division, ruled in favor of Georgia’s motion for partial summary judgment. Code Revision Comm’n, 244 F. Supp. 3d at 1361. After determining that Georgia could hold copyright in the OCGA due to Callaghan, Judge Story also concluded that only government documents “having the force of law” are uncopyrightable and that the annotations lacked the force of law due to Georgia statutes claiming so. Id. at 1356-57. Moreover, Judge Story rejected PRO’s application of the merger doctrine, saying that the alternative annotations in West’s unofficial code indicated that multiple expressions of this content were possible. Id. at 1357. Lastly, Judge Story held that PRO lacked a fair use defense due to a lack of transformation, the use of the entire OCGA, and the impact PRO would have on the market for the OCGA. Id. at 1357-61.
Upon appeal, the Eleventh Circuit unanimously reversed. Code Revision Comm’n for Gen. Assembly of Georgia v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted sub nom. Georgia v. Public.Resource.Org, Inc., 139 S. Ct. 2746 (2019), aff’d sub nom. Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020). Judge Stanley Marcus’s opinion distinguished Callaghan from the facts of the present case by noting that the annotations in Callaghan were drafted by the court reporter. See id. at 1247. Although LexisNexis writes the annotations in the OCGA, the Code Revision Commission (the “Commission”), a body established by the Georgia legislature, supervises LexisNexis and has final editorial control over what is published. Id. at 1244. Due to the nature of the Commission and the bicameral approval process required to codify the OCGA’s annotations, Judge Marcus concluded that the OGCA is “created by an agent of the People in the direct exercise of sovereign authority.” Id. at 1242, 1254-55. Therefore, the Eleventh Circuit held the OCGA is “attributable to the constructive authorship of the People,” and therefore uncopyrightable by the state. Id. at 1255.
The Eleventh Circuit opinion is the lengthiest and most convoluted of the case: it determines that the government edicts doctrine does not only apply to works that bear the force of law, but also works that are “law-like,” and then postulates a three-point test to determine whether a work is “sufficiently law-like” to be protected by the edict. See id. at 1242-43. The Supreme Court does not follow this reasoning at all. See generally Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020). Justice Roberts’ opinion contains a simple formulation of the government edicts doctrine: judges and legislators “may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges and legislators.” Id. at 1506. Roberts simply excises the entire “force of law” question the lower courts agonized over, leaving only two basic questions to consider: (1) did the author(s) of the work include any judges and/or legislators, and if so, (2) was the work produced in the course of official duties? Id.
In the Supreme Court’s analysis, the OCGA is a work-made-for-hire under § 201(b) of the Copyright Act, such that the Commission is legally considered the OCGA’s author. Id. at 1508. Because the Commission is created by the legislature, consists primarily of legislators, is funded by money legally mandated for the legislature, and has been held by the Georgia Supreme Court to operate within Georgia’s “sphere of legislative authority,” Roberts holds that the OCGA meets the first factor of the test. Id. This “sphere of legislative authority,” Roberts reckons, also means that the OCGA is produced within the course of the legislature’s official duties and therefore is not copyrightable. Id. at 1509.
Two dissents were filed with the opinion. Id. at 1513-24. Justice Ruth Bader Ginsburg’s dissent is short and straightforward: she concurs with Roberts’ formulation of the government edicts doctrine, but she doesn’t think the OCGA’s annotations are created in the course of legislators’ duties. Id. at 1522-23 (Ginsburg, J., dissenting). In her view, legislators draft laws, not interpret them, and the OCGA’s annotations – neutrally summarizing how judges, not legislators, interpret statutes – fall into the category of interpretation. Id.
Justice Clarence Thomas, on the other hand, considers the majority’s definition of the government edicts doctrine to be entirely removed from historical precedent. Id. at 1515 (Thomas, J., dissenting). In Thomas’ view, permitting copyright protection for annotations does not violate any possible justification for the government edicts doctrine, as access to annotations does not impede fair notice of the law as the annotations lack the force of law. Id. at 1517-18. Thomas also concludes that the Copyright Act permits the holding of copyright in annotations due to the inclusion of “annotations” as a derivative work which one can hold copyright in without possessing copyright in the underlying material. Id. at 1518. Finally, Thomas worries that this opinion may result in fewer states publishing their own annotated codes, resulting in the marketplace being dominated by more expensive options. Id. at 1522.
The importance Justice Thomas places upon these annotations’ supposed lack of legal force emphasizes how the Court has reshaped the government edicts doctrine with this decision. While Thomas is more focused on what is contained in the documents in question, the new formulation of the government edicts doctrine is more focused on who drafted the documents, and what roles those people play in government. In his dissent, Thomas argues that Roberts’ formulation of the doctrine does not specify an exact formula for determining whether works are created by government officials. Id. at 1521-22. This does raise the question of how future courts will decide these factors in close call situations. Seeid. As Thomas points out, many other jurisdictions follow a similar framework to Georgia, in which a council comprised partially or entirely of government employees supervises a publisher in drafting the annotations contained in an official state code. Id. Without any specific direction from the Court, it will be interesting to see if other judges conclude that similar code commissions do not constitute a component of the legislature or judiciary, for example, by having a smaller percentage of legislators or judges than Georgia.