Supreme Court Offers Guidance Regarding Eligibility of State Legislative Records for Protection Under the Copyright Act
In a 5-4 decision, the United States Supreme Court held yesterday in Georgia v. Public.Resource.Org, Inc., Docket No. 18-1150, that annotations contained in Georgia’s official annotated code were not subject to protection under the Copyright Act.
The case arose when Public.Resource.Org (PRO), a “nonprofit organization that aims to facilitate public access to government records and legal materials,” posted—without permission—a digital version of the Official Code of Georgia Annotated (“OCGA”) on various websites where the public could download the code for free.
The Georgia Code Revision Commission (“Commission”), which is responsible for “compiling the statutory text and accompanying annotation” under the Georgia Constitution, sent several cease-and-desist letters to PRO alleging that its posting of the OCGA constituted unlawful copyright infringement under the Copyright Act. When PRO refused to stop distributing the OCGA, the Commission sued on behalf of the Georgia Legislature and State of George for infringement. The Commission limited its copyright claim to the annotations to the code, and did not claim any copyright in the statutory text or numbering.
The district court concluded that the annotations were eligible for copyright protection because they were “not enacted into law and lacked the force of law,” and granted partial summary judgment in favor of the Commission. It further entered a permanent injunction requiring PRO “to cease its distribution activities and to remove the digital copies of the OCGA from the internet.”
The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that the “government edicts” doctrine made the annotations ineligible for copyright protection, and vacated the injunction. The Eleventh Circuit reached its decision based on a three-factor test, finding that each of the three factors “cut in favor of treating the OCGA annotations as government edicts authored by the People.”
Chief Justice Roberts, writing for the Court, affirmed the Eleventh Circuit’s decision, but rejected the test applied by the Eleventh Circuit. He wrote:
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.
Accordingly, the Court held that “copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.”
In applying this rule to the annotations to the OCGA, the Court devised a two-step test. First, the Court examined whether the Commission (the purported author) qualified as a “legislator.” The Court held that the Commission met this requirement because it functioned as “an arm” of the Georgia Legislature for purposes of producing the annotations. This was so because the commission was “created by the legislature”; consisted “largely” of legislators; received funding and staff “designated by law for the legislative branch”; and because the Georgia Legislature approved the Commission’s annotations before being included in the official version of the code.
Under the second step, the Court asked “whether the Commission create[d] the annotations in the ‘discharge’ of its legislative ‘duties.’” The Court found this requirement was met because the Commission’s preparation of the annotations was “an act of ‘legislative authority’” under Georgia law, and because the annotations provided “commentary and resources that the legislature ha[d] deemed relevant to understanding its laws.” The Court analogized the annotations to a “statement of the case and the syllabus or head note” in a judicial opinion, and thus fell “within the work legislators perform in their capacity as legislators.”
Particularly noteworthy is the Court’s treatment of Georgia’s argument that the Court should draw a negative inference from the fact that the that the Copyright Act specifically excluded “works[s] prepared by an officer or employee of the United States Government as part of that person’s official duties,” but did not contain a similar exclusion for state officials. Responding to this argument, the Court explained that the “bar on copyright protection for federal works sweeps much more broadly than the government edicts doctrine does” and that “[w]hatever policy reasons might justify the Federal Government’s decision to forfeit copyright protection for its own proprietary works, that federal rule does not suggest an intent to displace the much narrower government edicts doctrine with respect to the States.” The Court further suggested that States were “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.”
A primary concern of the Court in articulating its formulation of the government edicts doctrine was its belief that a rule limited to statutes and judicial opinions, i.e., works with the “force of law,” would enable States to “offer a whole range of premium legal works for those who can afford the extra benefit” and could “monetize its entire suite of legislative history.” Chief Justice Roberts reasoned that no “inventive or nefarious behavior” would be necessary for such concerns to materialize, since copyright protection was both instant and automatic. Thus, “citizens, attorneys, non-profits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties.”
Justice Thomas, joined by Justice Alito and Justice Breyer (in part), dissented, arguing that the government edicts doctrine did not apply to the Commission’s annotations, and that the majority’s rule would provide “difficult to administer.” He expressed concern that the rule would “leave in the lurch the many States, private parties, and legal researchers who relied on the previously bright-line rule” and predicted that “many States will stop producing annotated codes altogether.”
Justice Ginsburg also wrote a dissenting opinion, joined by Justice Breyer. In her view, the annotations were not created by the Commission in a “legislative capacity,” and therefore, even under the majority’s test, they were eligible for copyright protection.
The primary import of the Court’s decision is that the government edicts doctrine now clearly applies to legislative bodies, as the Court had only previously addressed the doctrine with respect to materials created by state judges. And although the case deals with a work created by a state legislature (or arm thereof), the rule articulated by the Court does not appear to be limited to state legislatures, and would therefore seem to extend to works created by other legislative bodies, such as those of counties and municipalities. Thus, like the relationship between the Georgia Commission and LexisNexis at issue in this case, the decision will almost certainly impact the partnerships many state, county, and municipal governments have created with private companies to make laws and other legislative materials available online.