Keywords: Copyright, Supreme Court, Georgia, Public.Resource.Org., annotations, OCGA, Government Edicts Doctrine
Introduction
One would think that when a state creates an “official” code of its statutes, the public would have the right to freely copy and share that collection of laws. One would also think that fair-minded judges would unanimously agree with this point and objurgate any view to the contrary. Well, think again. The 2020 Supreme Court case of Georgia v. Public.Resource.Org. ratifies a point that I make often: much of the copyright law of this country is a messy pig’s breakfast of uncleanly written and historically complex statutes interpreted by complicated, contradicting and fact-specific court cases. This latest case dealt with what many of us take for granted – the critically important right of citizens to copy and share the official version of laws enacted to govern them. Here’s how the case came about.
The Making Of The Official Code
The State of Georgia has one “official” code — the “Official Code of Georgia Annotated.” Georgia assembled that code through the work of its legislature’s Code Revision Commission that hired Lexis publishing company to help prepare the code. In preparing the code, Lexis added helpful notes and commentary (“annotations”) regarding the statutes in the code. As helpful as the notes were, they were merely editorial comments that were legally non-binding. Nevertheless, when completed, the published official code included those annotations. The agreement between Lexis and the Commission stated that any copyright in the code belonged to Georgia, but that Lexis had the exclusive right to publish and sell the “official” version of the code. In exchange, Lexis had to limit the price charged for the official code and also had to make an unofficial version, without annotations, available to the public online for free. Lexis charged the public $412 for the official version of the code.
Want To Know the Actual Law? – Buy The Code!
The agreed-upon pricing strategy created a consequence that many might find troubling. In this respect, a citizen who could only afford the free, online version of the Georgia code would see laws on the books that one would reasonably assume were valid and in force. However, without the official annotations, one would not know that may of the laws in the cheapo version of the code were laws that were unquestionably not valid. The laws were not valid because – surprise! – they had been declared unconstitutional by the Georgia Supreme Court. Yet, they were showing up in the code (i.e., “still on the books”) because the legislature had not gotten around to repealing the laws. Thus, the only way readers of the free online code would know that a particular statute was void was if they would do further research on that statute. Meanwhile, those who could afford the expensive, annotated and official version of the statutes, would see notes nearby the judicially invalidated statutes, quickly alerting them to the true status of those statutes.
Georgia Insists That Only It — And Not The Public — Owns The Official Code
Public.Resourec.Org, Inc. (“PRO”) believed that, notwithstanding the annotations, the official code, being “official,” could be copied and freely disseminated to all. The State of Georgia asserted otherwise and claimed a copyright to the official code. It sued PRO in federal district court, claiming copyright infringement, for posting the code online. The key question in the case was whether copyright law protected the editorial and non-binding annotations contained in Georgia’s official code. The district court ruled for the State of Georgia. The court of appeals reversed and found for PRO. The Supreme Court agreed to hear the case.
The Supremes Tell Georgia You Cannot Copyright The Official Code
In a five to four ruling, the Supreme Court affirmed the ruling of the court of appeals — but did so for reasons other than those relied on by the court of appeals. (The ole’ judicial oxymoron — affirming by contradiction!) To reach its decision the Court had to go back and blow the dust off some really old cases. By old, I mean from the 1800s. These cases, according to the five-judge majority, created a principal called the “government edicts doctrine.” Under that doctrine, government officials, like judges, cannot be the “authors” of — and therefore cannot copyright—the written opinions they create in the course of their official duties. Because the judges work for the public, the “real” author of the judicial opinions is the public. In finding in favor or PRO, the Court extended the government edicts doctrine to explanatory legal materials (annotations) created by a legislative body vested with the authority to make law. Because Georgia’s official code included notes and comments — and that code was created by the legislature’s Commission performing legislative duties — the government edicts doctrine made the annotations ineligible for copyright protection. In other words, because the Georgia legislature made the annotated version of the code the official code, that version of the code could not receive copyright protection. If on the other hand, the annotations had been added unofficially to the compilation of statutes by a private publisher, then according to the dusty old cases that compilation of the statutes could receive copyright protection. Got it?
The Decision Is Fundamentally Important
It is no overstatement to say that the decision of the Supreme Court critically impacts all citizens. Had the Court ruled in Georgia’s favor, all of the annotations included in the official code, and therefore the official code itself, would be copyright protected. Citizens wanting to copy, distribute or display that code would face potentially crippling civil damage awards, if not criminal penalties — unless they could prove fair use. Ordinary citizens, however, cannot afford to hire lawyers to defend them and argue fair use. The truth is, defending a claim of copyright infringement on the basis of fair use is neither easy, nor cheap. As Justice Roberts noted in his majority opinion, fair use is not a simple determination; it is “notoriously fact sensitive and often cannot be resolved without a trial.” (Amen, Chief Justice Roberts!)
This Proves How Complicated And Unsettled Copyright Law Is.
In the end, this case proves that average citizens should do their utmost to steer clear of copyright disputes. There is usually nothing simple about the typical copyright case. In this latest Supreme Court case, the majority opinion took eighteen pages to justify its decision. Justice Thomas’ dissent took seventeen pages and Justice Ginsberg’s dissent added another four pages. The fact that the difference in the ruling was only one vote, emphasizes that predicting the outcome of a copyright case is like throwing darts in the dark. Indeed, accounting for the rulings of the district court and the court of appeals, the case spawned at least five opinions.
If it takes judges (who have years of legal education and experience, as well as armies of law clerks to help them with legal research) that much work and arguing amongst themselves to reach a ruling (a disputed ruling at that) on a fundamental point, how reasonable is it to expect the average citizen to ever understand that same point? The clear answer is — it is not reasonable.
Your best protection against getting pulled into a costly copyright dispute is to think very carefully before you copy and distribute someone else’s work.
