Code Revision Comm'n ex rel. Gen. Assembly of Ga. v. Public.Resource.Org, Inc., 17-11589

Decision Date19 October 2018
Docket NumberNo. 17-11589,17-11589
Citation906 F.3d 1229
Parties CODE REVISION COMMISSION, FOR the Benefit of and on behalf of GENERAL ASSEMBLY OF GEORGIA, State of Georgia, Plaintiffs - Counter Defendant - Appellees, v. PUBLIC.RESOURCE.ORG, INC., Defendant - Counter Claimant - Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Anthony B. Askew, Lisa Pavento, Warren James Thomas, Meunier Carlin & Curfman, LLC, Atlanta, GA, for Plaintiffs - Appellees.

Elizabeth Hannah Rader, Sarah Parker LaFantano, Jason Demian Rosenberg, Alston & Bird, LLP, Atlanta, GA, for Defendant - Appellant.

Esha Bhandari, ACLU Foundation, New York, NY, for Amicus Curiae AMERICAN CIVIL LIBERTIES UNION FOUNDATION.

Esha Bhandari, Vera Eidelman, ACLU Foundation, New York, NY, for Amicus Curiae, AMERICAN CIVIL LIBERTIES UNION OF GEORGIA.

Charles Duan, R. Street Institute, Washington, DC, for Amici Curiae PUBLIC KNOWLEDGE, THE AMERICAN LIBRARY ASSOCIATION, THE ASSOCIATION OF RESEARCH LIBRARIES, THE INSTITUTE OF INTELLECTUAL PROPERTY AND SOCIAL JUSTICE, THE ORGANIZATION FOR TRANSFORMATIVE WORKS.

Phillip R. Malone, Jeffrey Theodore Pearlman, Stanford Law School, Stanford, CA, Erica Sollazzo, Juelsgaard IP & Innovation Clinic, Stanford Law School, STANFORD, CA, for Amicus Curiae NEXT GENERATION LEGAL RESEARCH PLATFORMS, THE OPENGOV FOUNDATION, RAVEL, CASETEXT, FREE LAW PROJECT, JUDICATA.

Before MARCUS and HULL, Circuit Judges, and BUCKLEW,* District Judge.

MARCUS, Circuit Judge:

Today, we are presented with the question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, may be copyrighted by the State of Georgia. Answering this question means confronting profound and difficult issues about the nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives. After a thorough review of the law, and an examination of the annotations, we conclude that no valid copyright interest can be asserted in any part of the OCGA.

From the earliest day of the Republic, under federal copyright law, copyright interests have vested in the author of the work. Authorship, therefore, is central to many questions that arise under the Copyright Act, 17 U.S.C. § 101 et seq. This case is no exception. In most states the "official" code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. Conversely, all agree that annotations created by a private party generally can be copyrighted because the annotations are an original work created by a private publisher. But the annotations in the OCGA are not exactly like either of these two types of works. Rather, they fall somewhere in between -- their legal effect and ultimate authorship more indeterminate. To resolve this question, then, we reason by analogy, and drill down on the core attributes that make the OCGA annotations what they are -- namely an exercise of sovereign power.

The general rule that legislative codifications are uncopyrightable derives from an understanding of the nature of law and the basic idea that the People, as the reservoir of all sovereignty, are the source of our law. For purposes of the Copyright Act, this means that the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority. And because they are the authors, the People are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable.

That the law itself, whether it takes the form of a legislative enactment or of a judicial opinion, is subject to the rule is clear and not contested. This is because these works represent the quintessential exercise of sovereign power. When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work. The task we face today is whether we should similarly treat Georgia’s entire official code, which expressly merges its statutes and their official annotations, as the sovereign expression of the People by their legislature, as public domain material.

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power -- which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The question is a close one -- and important considerations of public policy are at stake on either side -- but, at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

As a consequence, we conclude that the People are the ultimate authors of the annotations. As a work of the People the annotations are inherently public domain material and therefore uncopyrightable. Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use.

I.
A.

The Official Code of Georgia Annotated (OCGA or the Code) is an annotated compilation of Georgia statutes that has been published annually since 1982. The statutory text contained in the OCGA has been "enacted and [has] the effect of statutes enacted by the General Assembly of Georgia." O.C.G.A. § 1-1-1. As the Code itself explains, the statutory text in the OCGA is the official published version of Georgia’s laws, and when the Georgia General Assembly enacts a new law, the bill typically reads "An Act... To amend... the Official Code of Georgia Annotated."

Appearing alongside the statutory text are various annotations, consisting of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references. The Code itself makes clear that these annotations are a part of the official Code, stating that the statutory portions of the Code "shall be merged with annotations... and [are] published by authority of the state ...and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’ " O.C.G.A. § 1-1-1.

Despite the fact that they are part of the official Code, Georgia law says that the annotations themselves do not have the force of law in the way that the statutory portions of the Code do. One provision of the Code explains that:

Unless otherwise provided in this Code, the descriptive headings or catchlines immediately preceding or within the text of the individual Code sections of this Code, except the Code section numbers included in the headings or catchlines immediately preceding the text of the Code sections, and title and chapter analyses do not constitute part of the law and shall in no manner limit or expand the construction of any Code section. All historical citations, title and chapter analyses, and notes set out in this Code are given for the purpose of convenient reference and do not constitute part of the law.

O.C.G.A. § 1-1-7. Laws passed during each session of the Georgia General Assembly that reenact the OCGA as the state’s official code similarly provide that the annotations "contained in the Official Code of Georgia Annotated are not enacted as statutes by the provisions of this Act." See, e.g., 2015 Ga. Laws 9, § 54.

The annotations were initially prepared by Mathew Bender & Co., Inc., an operating division of the LexisNexis Group, (Lexis), pursuant to an agreement it entered into with the State of Georgia. Under the terms of the agreement, Lexis is responsible for the ongoing publication and maintenance of the Code, and all editorial, publication, and distribution costs. In exchange, Lexis was given the exclusive right of publication by Georgia. But, notably, Georgia holds the copyright in the annotations in its own name. The publication agreement also specifies what types of annotations should appear alongside the statutory text, and provides detailed and specific directions as to how Lexis is to generate and arrange this content. The agreement also provides that the Code Revision Commission (the "Commission") supervises the work of Lexis and has final editorial control over the contents of the OCGA.

The Commission is a body established by the Georgia General Assembly...

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