Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020), is a United States Supreme Court case regarding "whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated" (OCGA). On April 27, 2020, the Court ruled 5–4 that the OCGA cannot be copyrighted because the OCGA's annotations were "authored by an arm of the legislature in the course of its legislative duties"; thus the Court found that the annotations fall under the government edicts doctrine and are ineligible for copyright.
Litigation began in 2013 after Carl Malamud published the OCGA on Public.Resource.Org (PRO). The state of Georgia filed a lawsuit in 2015. In March 2017, a federal court in the Northern District of Georgia ruled in the state's favor, after which in 2018 the Eleventh Circuit reversed the ruling. Both Georgia and PRO appealed to the Supreme Court, which heard arguments in December 2019.
Background
Government edicts In the United States, laws, statutes, and court decisions, all as edicts of government, are considered to be in the public domain, available to the public for free and not protected by copyright. This doctrine is rooted in the Copyright Act's 'authorship' requirement and posits that officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties. Based on the principle, the law must be free for publication to all.
Georgia The Official Code of Georgia Annotated (OCGA) is assembled by a state entity called the Code Revision Commission (the Commission) and is the official law of Georgia.
The OCGA contains both the official statutes as well as annotations. The annotations explain and expound upon the statutes and contain "summaries of state attorney general's opinions, advisory opinions by the State Bar of Georgia, summaries of important court rulings, excerpts of law review articles, legislative histories[,] and repeals". The Commission entered into a work-for-hire agreement with Matthew Bender & Co., Inc., a division of the LexisNexis Group, to prepare annotations. The Georgia government asserted that it held copyright to the OCGA; further, Georgia's legislature exempted itself from the state's open records law. While the state claimed that the OCGA is easily accessible via libraries, journalists for Atlanta news channel 11Alive were "unable to find a complete set of current law books at three branches of the Fulton County Public Library, including the main branch in downtown Atlanta", noting that "[t]he law books were kept behind a locked door, and we had to ask for special permission to view them. Some volumes were as much as six years out of date." Additionally, LexisNexis's website displays only the statutory code and not the annotations.
In 2013, Carl Malamud purchased a 186-volume hard copy of the OCGA (at a cost of over $1,000; the cost is just below $400 for Georgia residents) and published the contents on the website Public.Resource.Org. In response, the State of Georgia, specifically the Code Revision Commission of the Georgia General Assembly, which oversees the OCGA's copyright, threatened to sue Malamud for copyright infringement over this posting."Georgia Claims Its Annotated Laws Are Covered by Copyright, Threatens Carl Malamud for Publishing the Law".
District court
In 2015, Georgia's Code Revision Commission filed a copyright infringement lawsuit against PRO in the U.S. District Court for the Northern District of Georgia, demanding that the OCGA be taken offline. Public.Resource.Org asserted in its defense that since the state has chosen to make the Official Code of Georgia Annotated the official and authoritative code of the entire state, the Code should not be subject to copyright law, and should be freely available for all citizens to read and access. The code also holds, in denoting the annotated code as the "official code," that authorship and copyright remains with the State and not with the publisher. In the lawsuit, Georgia further alleged that Malamud's actions reflected a "strategy of terrorism". State representative Johnnie Caldwell Jr., Chairman of the Code Revision Commission, issued a statement explaining that "the OCGA contains two separate and distinct types of content... the law itself... [and] ancillary material, such as cross references, case annotations, editor's notes, law reviews, etc. Such ancillary material is expressly not law."
On March 23, 2017, a federal court in the United States District Court for the Northern District of Georgia ruled in favor of the state. It acknowledged that the annotations in the OCGA presented “an unusual case because most official codes are not annotated and most annotated codes are not official" and therefore that these annotations were eligible for copyright protection since they were “not enacted into law” and lacked “the force of law.” As a result it held that PRO did not "[meet] its burden of proving fair use, and [the state of Georgia] [is] entitled to partial summary judgment" and entered a permanent injunction requiring PRO to cease its distribution activities and to remove the digital copies of the OCGA from the internet.
Eleventh Circuit
On October 18, 2018, the United States Court of Appeals for the Eleventh Circuit unanimously reversed the previous ruling, finding that the OCGA is "intrinsically public domain material" and that its annotations "clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia's laws". The Court relied on the case of Banks v. Manchester (1888), in which the Supreme Court articulated the government edicts doctrine by finding that "there can be no copyright in the opinions of the judges, or in the work done by them in their official capacity as judges", and a report from the Copyright Office noting that "the judicially established rule... still prevent[s] copyright in the text of state laws... and similar official documents". The Court also identified three factors that would determine whether authorship in a work is constrictively attributable to that of the people, namely:
the identity of the public official who created the work; the nature of the work; and the process by which the work was produced.
As a result the Court stated that the people are "constructive authors"Code Revision Comm’n, 906 at 1239. of the law and judges and legislators are merely draftsman that are exercising authority delegated to them. Thus, the court found that "the annotations in the OCGA, while not having the force of law, are part and parcel of the law. They are so enmeshed with Georgia's law as to be inextricable... They are therefore uncopyrightable".Code Revision Comm’n, 906 at 1233.
The state assembly of Georgia appealed this decision to the United States Supreme Court. Both PRO and the state of Georgia urged the Supreme Court to grant certiorari to the government's appeal; on June 24, 2019, the Supreme Court agreed to review the case (No. 18-1150). The Court heard oral arguments in the case on December 2, 2019.
Supreme Court
The Court accepted the case to decide the question:Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
Oral arguments were held on December 2, 2019, at which many of the justices focused on the role of the legislature in approving the annotated statutes for publication, questioning whether this made the annotations equivalent to legislation, which cannot be copyrighted.
On April 27, 2020, the Court ruled in a 5-to-4 decision, that Georgia does not have copyright over its annotated legal code. Chief Justice John Roberts authored the majority opinion, joined by Associate Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh: he noted that, binding law or not, official works of the Georgia legislature could not be copyrighted, as they could deprive citizens of knowledge of those laws and their corollaries. Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Stephen Breyer, while Justice Clarence Thomas filed another dissenting opinion with which Samuel Alito joined and Breyer joined except for Part II-A and footnote 6.
Majority The majority held that copyright protection does not extend to the annotations contained in Georgia's official annotated code. The route taken to hold this was the "government edicts doctrine". Like the 11th Circuit, they cited the SCOTUS decision in Banks v. Manchester (1888) and extend the same logic as they applied to legal binding and non-bind material created by judges, to non-binding, non-authoritative and explanatory legal materials created by a legislative body vested with the authority to make law.
The Court adopted the following framework to apply the government edicts doctrine as follows:
First, regarding the identity of the official that created the work, the Court held that the Commission, as the sole author of the work (since the annotations prepared by LexisNexis pursuant to the work-for-hire agreement.), qualifies as a legislator. They held that the Commission functions as an arm for the Georgia Legislature and its work thus falls under the sphere of "legislative authority". In order to hold this they noted that the Commission was composed predominantly of legislators and received funding designated by the law for the legislative branch. Finally, it was the legislature itself that approved and merged the annotations with the statutory provisions and published the OCGA "by authority of the state".
Second, regarding the nature of work, the Court held that the Commission creating the annotations is in the "discharge" of its legislative duties.. Although the annotations are not enacted into law through bicameralism and presentment, the preparation of the annotations is under an act of "legislative authority". The fact that the commentary and case laws in the annotations are approved by the legislature shows that they deemed it to be relevant.
The Court rejected the argument by the State of Georgia that the annotations are copyrightable by virtue of §101 of the US Copyright Statute since it specifically lists "annotations" among the kinds of works eligible for copyright protection. They ruled that this provision refers only to annotations that represent an original work of "authorship" and the Commission, serving in its official capacity, cannot serve as an author due to the government edicts doctrine. They clarified that §101 protects annotations in case they are prepared by a private party or non-lawmaking officials. This is elucidated by distinguishing the decision in Banks from Callaghan v. Myers. where the Court permitted a reporter to hold copyright in explanatory materials he had added to the judgements, such as headnotes, syllabi, tables of contents, on the grounds that he did not have authority to speak with the force of law.
The Court also rejected the contention that the US Copyright Statute while excluding "work[s] prepared by an officer or employee of the United States Government as part of that person's official duties" from copyright protection, does not establish a similar rule for the States. The Court held that the policy reasons that justify the Federal Government's decision to forfeit copyright protection for its own proprietary works, does not suggest an intent to displace the already narrow government edicts doctrine with respect to the States. The doctrine does not apply to non-lawmaking officials, leaving States free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries, tourism offices, and so on.