Recall that before Covid (so about 300 years ago), there was an interesting copyright case percolating through the federal courts. The question concerned the Official Georgia Code Annotated (OGCA), which contains the text of the Georgia Code as well as various annotations. There were two potentially conflicting principles at work. On the one hand, the law is public domain. On the other hand, annotations and supplemental materials by third parties are often copyrightable. Georgia managed to produce a hybrid system: the legislature established a code commission, which outsourced most of the annotations work to Matthew Bender Corp, which was granted an exclusive license to sell it. At the same time, the legislature every year officially adopted the GCA, and it was the authoritative source for the Georgia Code in everything from legislative proceedings to cases to public reference. It was even published with the state seal attached.
The 11th Circuit ruled that OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). Today, in an opinion by Justice Roberts, the Supreme Court agreed, though for somewhat different reasons. The SCOTUS opinion basically argues that the relevant question is whether the “author” of something is a judge or legislator; answers that the OGCA is reasonably the work of a legislator, and thus uncopyrightable.
What strikes me as most interesting in today’s opinion (which comes with a dissent by Justice Thomas, and another by Ginsburg) is that it resolves another potential ambiguity. The Copyright Act clearly establishes that anything by a federal employee working in her official capacity is not copyrightable. But there was potential ambiguity as to whether this applies to the states. Justice Roberts is both expansive and clear that it does:
“Turning to our government edicts precedents, Georgia insists that they can and should be read to focus exclusively on whether a particular work has “the force of law.” …. But that framing has multiple flaws. Most obviously, it cannot be squared with the reasoning or results of our cases—especially Banks. Banks, following Wheaton and the “judicial consensus” it inspired, denied copyright protection to judicial opinions without excepting concurrences and dissents that carry no legal force. …. Yet such comments are covered by the government edicts doctrine because they come from an official with authority to make and interpret the law. Indeed, Banks went even further and withheld copyright protection from headnotes and syllabi produced by judges. Surely these supplementary materials do not have the force of law, yet they are covered by the doctrine. The simplest explanation is the one Banks provided: These non-binding works are not copyrightable because of who creates them—judges acting in their judicial capacity …. The same goes for non-binding legislative materials produced by legislative bodies acting in a legislative capacity. There is a broad array of such works ranging from floor statements to proposed bills to committee reports. Under the logic of Georgia’s “force of law” test, States would own such materials and could charge the public for access to them.”
Roberts then makes the case for why the public needs access to these materials, and notes that if they were considered copyrightable, states could monetize all of them. Indeed, they would affirmatively have to relinquish copyright in it, since copyright attaches automatically. I’ll leave it to others to interpret why he chose the example he did:
“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 http://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)”
In any case, it seems to me that SCOTUS gets this one right.
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