Supreme Court Rules States Cannot Copyright Legal Annotations: New Price Is $2,750

Stephen Carlisle April 30, 2020

“Why would we allow the official law enacted by a legislature…to be hidden behind a paywall?” asked Justice Neil Gorsuch at oral argument in the case of Georgia v. Public.Resource.Org. ¹ While the Justices’ query is fairly pointed, it misses the precise question at issue. It is not the copyright in the actual statutes of the State of Georgia that is in question, it is the copyright in the annotations to the statutes that was commissioned by the State that is the heart of the dispute.

Contrary to the headlines surrounding this decision, the SCOTUS did not rule that States cannot hold a copyright in the law. ² The State of Georgia never contended that they could. The SCOTUS also did not rule that one cannot have a copyright in an annotations to statutes and legal decisions, because it previously ruled that one could. ³ What it did rule was that the State of Georgia could not have a copyright in the “Official” annotated statutes in which the State of Georgia was clearly the “author,” under the “Government Edicts Doctrine.”

“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.” ⁴

Never heard of the “government edicts doctrine?” Yeah, me neither. But it traces its roots back to a trio of 19^th century rulings by the SCOTUS, in sum ruling that judicial opinions cannot be copyrighted, but that material created by 3^rd parties “headnotes, syllabi, tables of contents, and the like” ⁵ could be protected by copyright.

So, the crux of the issue is, who is the “author” of the Official Code of Georgia Annotated?

According to the Cornell Law School Information Institute:

“The Official Code of Georgia Annotated (“OCGA”) is Georgia’s official compilation of all its laws and has been published yearly since 1982. Both private and public entities wrote the OCGA. The OCGA contains both statutory text and annotations of the text, which help to explain the law. The OCGA’s annotations include, among other things: (1) summaries of State Bar advisory opinions and opinions of the Attorney General of Georgia; (2) law review article excerpts; (3) editors’ notes and commentaries; (4) history and repeal lines; and (5) cross references.” ⁶

So not only does the OCGA contain material that the SCOTUS has previously ruled can be copyrighted, but the State of Georgia is not the only entity making contributions. Indeed the “lion’s share” of the work is done by legal publisher Matthew Bender (a subsidiary of Lexis/Nexis Group), in return for exclusive rights of publication. ⁷ The result is a “work for hire” in which the State of Georgia is listed as the “author” and the State retains the final say over what will be included, according to the SCOTUS “in exacting detail.” ⁸ Since Matthew Bender does most of the work, and assumes the cost, the OCGA is made available for $412, and the statutes are made available online for free. In contrast, the “non-official” annotated statutes of Georgia by competitor WestLaw costs $2,750. ⁹

This is not unusual. “25 other jurisdictions—22 States, 2 Territories, and the District of Columbia… rely on arrangements similar to Georgia’s to produce annotated codes.” ¹⁰

But as with many things in the modern internet age, making a multiple volume set of books available for a greatly reduced cost is simply not good enough. Everything must be FREE. Thus enters Defendant/ Appellee Public.Resource.Org (PRO). “Without permission, PRO posted a digital version of the OCGA on various websites, where it could be downloaded by the public without charge. PRO also distributed copies of the OCGA to various organizations and Georgia officials.” ¹¹ This inevitable copyright infringement lawsuit followed. The District Court found infringement. The Eleventh Circuit reversed, leading us to the SCOTUS.

The decision shows a sharply divided Court, with a bare majority of 5-4 affirming. Interestingly enough, the divisions do not skew down the typical liberal/conservative lines. Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh, make up the majority. Thomas, Ginsberg, Alito and Breyer make up the minority with Thomas and Ginsberg filing dissenting opinions.

The majority opinion engages in a bit of head spinning logic. It states that obviously the State of Georgia is the “author,” but it can’t be an author because the commission is composed (largely) of legislators and legislators can’t be authors.

“[T]he 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. Georgia agrees that the author is the Commission.” ¹²

But:

“Instead of examining whether given material carries ‘the force of law,’ we ask only whether the author of the work is a judge or a legislator. If so, then whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.” ¹³

Or you’re an author because the Copyright Act says you are, but you are not an author because we say so. In his dissent, Justice Thomas writes:

“Stripped of the fiction that this Court’s 19th-century precedents clearly demonstrated that ‘authorship’ encompassed all works performed as part of a legislator’s duties, the majority’s textual argument fails.

The majority does not confront this criticism head on. Instead, it simply repeats, without any further elaboration, its unsupported conclusion that “[t]he Court long ago interpreted the word ‘author’ to exclude officials empowered to speak with the force of law, and Congress has carried that meaning forward in multiple iterations of the Copyright Act.” Ante, at ––––. This wave of the ‘magic wand of ipse dixit’ does nothing to strengthen the majority’s argument, and in fact only serves to underscore its weakness.” ¹⁴

The majority’s decision also ignores the salient facts of the case. Yes, absolutely, under the plain text of the Copyright Act the Commission is the author under the principles of “work for hire.” Yet the reality is, the main author of the annotations, who the majority admits does the “lion’s share” of the work is Matthew Bender, who is not in any sense a “legislator.” So, the SCOTUS takes the copyrightable work of Matthew Bender and injects it into the public domain because of the simple fact that ownership of the work has been transferred to the Commission.

Add to this the fact that some of the annotations consist of excerpts from law review articles, which presumably Matthew Bender does not own the copyright thereto, instead of (most likely) the copyright being lodged in the authors or the institutions that hired them. Now these excerpts have been injected into the public domain as well.

Lastly, as Justice Thomas reasons in his dissent, the annotations are exactly the type of works that the Copyright Act seeks to encourage.

“[U]nlike judges and legislators, the creators of annotations are incentivized by the copyright laws to produce a desirable product that will eventually earn them a profit. And though the Commission may require Lexis to follow strict guidelines, the independent synthesis, analysis, and creative drafting behind the annotations makes them analogous to other copyrightable materials.” ¹⁵

So, stripped of this incentive, will the 25 other jurisdictions with deals similar to Georgia’ continue to produce annotated statutes? Maybe, but maybe not. They would somehow have to find the funding to pay for the “lion’s share” of the work previously performed by Matthew Bender, taking this money away from other State resources.

So perhaps they just stop. What’s the alternative, then? The non-official version produced by someone else? Recall that the cost of the non-official version is $2,750, an increase of $2,338 over the official version. So, while the Electronic Frontier Foundation and their friends take the victory lap, consider what they’ve really accomplished: increasing the cost to the consumer by $2,338.