In a copyright case with potentially wide-ranging implications, the U.S. Supreme Court this week held that annotations added to the State of Georgia’s legal code are not eligible for copyright protection.
The 5-4 opinion, written by chief justice John Roberts, upholds a 2018 appeals court decision that reversed a 2017 summary judgment in Georgia v. Public.Resource.Org, in which the state of Georgia sued a public access advocacy group for copyright infringement for making the state’s complete annotated legal code—which is published commercially by the LexisNexis Group—freely available online.
In upholding the appeals court reversal, the Supreme Court held that the annotations amended to the state of Georgia’s legal code were “ineligible for copyright protection” under the “government edicts doctrine,” a legal regime developed from a trio of 19th-century Supreme Court decisions.
“The animating principle behind the government edicts doctrine is that no one can own the law,” Roberts wrote. “Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s ‘authorship’ requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.”
The case revolves around the publication of the Official Code of Georgia Annotated (OCGA). While the OCGA does not claim copyright over the text of the statutes themselves, at issue are the accompanying “annotations” which includes summaries of judicial decisions and other references, including editor’s notes.
In a 2019 New York Times piece, Adam Liptak explained the significance of legal code annotations. "Only a very bad lawyer would fail to consult [the annotations] in determining the meaning of a statute," Liptak wrote. "For instance, Georgia still has a law on the books making sodomy a crime. An annotation tells the reader that the law has been held unconstitutional."
To create its annotations, Georgia contracted Matthew Bender & Co., a division of LexisNexis, under a work-for-hire agreement. Under that agreement, the state maintains copyright ownership of the work , and in exchange for LexisNexis's “army of researchers” assisting with the creation of the annotations, grants LexisNexis an exclusive license to publish the OCGA (a 54-volume hard copy currently retails for $412.)
However, in the digital age such public/private publishing arrangements are coming under increased scrutiny. Enter long time public advocate Carl Malamud and his nonprofit advocacy group Public Resource, an organization committed to making taxpayer-funded government documents and publications broadly available.
In an effort to press the issue of public access to official laws and legal documents, Public Resource scanned and posted a free version of the OCGA in 2013, and distributed copies via thumb drives, leading the State of Georgia to sue for copyright infringement in 2015, arguing that each of the annotations contained in the OCGA is an "original and creative work of authorship."
But because Georgia’s annotations are in effect "authored by an arm of the legislature in the course of its legislative duties," Roberts held, they "are outside the reach of copyright protection." Roberts was joined in the majority by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justices Alito, Breyer, Ginsburg, and Thomas dissented.
In his dissent, Justice Clarence Thomas noted that 25 other jurisdictions—22 states, 2 territories, and the District of Columbia—currently rely on similar arrangements to produce their annotated state codes. "The creators of annotations are incentivized by the copyright laws to produce a desirable product," Thomas argues, musing that "perhaps to the detriment of all, many states will stop producing annotated codes altogether."
In its 2019 amicus brief, lawyers for LexisNexis said exactly that. "LexisNexis devoted countless hours to creating the Annotations for Georgia, putting in precisely the type of creative, labor-intensive effort that the Copyright Clause and the Copyright Act seek to encourage and protect," the brief states. "If Georgia’s copyright is destroyed and LexisNexis thereby loses its exclusive right to sell the Annotations, LexisNexis will no longer create those Annotations unless Georgia pays for this work, likely with taxpayer funds."
Which is exactly how it should be, Public Resource argued in its 2019 brief urging the Supreme Court to take up the case. "Georgia made the decision to farm out preparation of the OCGA to Lexis, not to pay Lexis for its work, and to keep the copyright for itself," the brief states, arguing that Georgia effectively "manufactured its own exclusive right in a work" by refusing to pay a contractor for it. "The state could ensure the publication of the OCGA by creating it using its own staff, or by paying Lexis the way it pays innumerable other third parties."
Indeed, writing for the majority Roberts evoked a public legal and legislative arena more complicated than incentivized by copyright.
"If Georgia were correct, then unless a State took the affirmative step of transferring its copyrights to the public domain, all of its judges’ and legislators’ non-binding legal works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease all copying, distribution, and display of those works or risk severe and potentially criminal penalties," Roberts pointed out, noting that unlike other intellectual property protections, like patents, copyrights are "instant and automatic," and can last well over a century.
The case was closely watched (including by the publisher and library communities) and drew numerous amicus briefs on both sides, including from the Copyright Alliance, which warned that a ruling in favor of Public Resource could "invalidate hundreds, if not thousands" copyrights owned by states, and upend a long-existing publication system.
"The economic reality is that states cannot afford to annotate their own laws," the Copyright Alliance stated in its 2019 brief. "And while authors will be harmed by losing their incentive to create statutory annotations, the ultimate harm will fall on the public."
On that potential scenario, the court punts the issue to Congress. "Georgia submits that, without copyright protection, Georgia and many other States will be unable to induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution," Roberts writes. "That appeal to copyright policy, however, is addressed to the wrong forum. As Georgia acknowledges, 'it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.'"