Georgia v. Public.Resource.Org, Inc.

Decision Date27 April 2020
Docket NumberNo. 18-1150,18-1150
Citation206 L.Ed.2d 732,140 S.Ct. 1498
Parties GEORGIA, et al., Petitioners v. PUBLIC.RESOURCE.ORG, INC.
CourtU.S. Supreme Court

Anthony B. Askew, Lisa C. Pavento, Warren J. Thomas, Meunier Carlin & Curfman LLC, Atlanta, GA, Daniel R. Ortiz, University of Virginia School of Law, Supreme Court, Litigation Clinic, Charlottesville, VA, Jeremy C. Marwell, Joshua S. Johnson, Matthew X. Etchemendy, Vinson & Elkins LLP, Washington, DC, John P. Elwood, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Petitioners.

Elizabeth H. Rader, Calliope Legal, Washington, DC, Eric F. Citron, Thomas C. Goldstein, Erica Oleszczuk Evans, Goldstein & Russell, P.C., Bethesda, MD, for Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

The Copyright Act grants potent, decades-long monopoly protection for "original works of authorship." 17 U.S.C. § 102(a). The question in this case is whether that protection extends to the annotations contained in Georgia's official annotated code.

We hold that it does not. 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.

We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. See Banks v. Manchester , 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888). We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia's annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

I
A

The State of Georgia has one official code—the "Official Code of Georgia Annotated," or OCGA. The first page of each volume of the OCGA boasts the State's official seal and announces to readers that it is "Published Under Authority of the State."

The OCGA includes the text of every Georgia statute currently in force, as well as various non-binding supplementary materials. At issue in this case is a set of annotations that appear beneath each statutory provision. The annotations generally include summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and a list of related law review articles and similar reference materials. In addition, the annotations often include editor's notes that provide information about the origins of the statutory text, such as whether it derives from a particular judicial decision or resembles an older provision that has been construed by Georgia courts. See, e.g. , OCGA §§ 51–1–1, 53–4–2 (2019).

The OCGA is assembled by a state entity called the Code Revision Commission. In 1977, the Georgia Legislature established the Commission to recodify Georgia law for the first time in decades. The Commission was (and remains) tasked with consolidating disparate bills into a single Code for reenactment by the legislature and contracting with a third party to produce the annotations. A majority of the Commission's 15 members must be members of the Georgia Senate or House of Representatives. The Commission receives funding through appropriations "provided for the legislative branch of state government." OCGA § 28–9–2(c) (2018). And it is staffed by the Office of Legislative Counsel, which is obligated by statute to provide services "for the legislative branch of government." §§ 28–4–3(c)(4), 28–9–4. Under the Georgia Constitution, the Commission's role in compiling the statutory text and accompanying annotations falls "within the sphere of legislative authority." Harrison Co. v. Code Revision Comm'n , 244 Ga. 325, 330, 260 S.E.2d 30, 34 (1979).

Each year, the Commission submits its proposed statutory text and accompanying annotations to the legislature for approval. The legislature then votes to do three things: (1) "enact[ ]" the "statutory portion of the codification of Georgia laws"; (2) "merge[ ]" the statutory portion "with [the] annotations"; and (3) "publish[ ]" the final merged product "by authority of the state" as "the ‘Official Code of Georgia Annotated.’ " OCGA § 1–1–1 (2019); see Code Revision Comm'n v. Public.Resource.Org, Inc. , 906 F.3d 1229, 1245, 1255 (CA11 2018) ; Tr. of Oral Arg. 8.

The annotations in the current OCGA were prepared in the first instance by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. The agreement between Lexis and the Commission states that any copyright in the OCGA vests exclusively in "the State of Georgia, acting through the Commission." App. 567. Lexis and its army of researchers perform the lion's share of the work in drafting the annotations, but the Commission supervises that work and specifies what the annotations must include in exacting detail. See 906 F.3d at 1243–1244 ; App. 269–278, 286–427 (Commission specifications). Under the agreement, Lexis enjoys the exclusive right to publish, distribute, and sell the OCGA. In exchange, Lexis has agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free. A hard copy of the complete OCGA currently retails for $412.00.

B

Public.Resource.Org (PRO) is a nonprofit organization that aims to facilitate public access to government records and legal materials. 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.

In response, the Commission sent PRO several cease-and-desist letters asserting that PRO's actions constituted unlawful copyright infringement. When PRO refused to halt its distribution activities, the Commission sued PRO on behalf of the Georgia Legislature and the State of Georgia for copyright infringement. The Commission limited its assertion of copyright to the annotations described above; it did not claim copyright in the statutory text or numbering. PRO counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain.

The District Court sided with the Commission. The Court acknowledged that the annotations in the OCGA presented "an unusual case because most official codes are not annotated and most annotated codes are not official." Code Revision Comm'n v. Public.Resource.Org, Inc. , 244 F.Supp.3d 1350, 1356 (ND Ga. 2017). But, ultimately, the Court concluded that the annotations were eligible for copyright protection because they were "not enacted into law" and lacked "the force of law." Ibid. In light of that conclusion, the Court granted partial summary judgment to the Commission and entered a permanent injunction requiring PRO to cease its distribution activities and to remove the digital copies of the OCGA from the internet.

The Eleventh Circuit reversed. 906 F.3d 1229. The Court began by reviewing the three 19th-century cases in which we articulated the government edicts doctrine. See Wheaton v. Peters , 8 Pet. 591, 8 L.Ed. 1055 (1834) ; Banks v. Manchester , 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425 (1888) ; Callaghan v. Myers , 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547 (1888). The Court understood those cases to establish a "rule" based on an interpretation of the statutory term "author" that "works created by courts in the performance of their official duties did not belong to the judges" but instead fell "in the public domain." 906 F.3d at 1239. In the Court's view, that rule "derive[s] from first principles about the nature of law in our democracy." Ibid. In a democracy, the Court reasoned, "the People" are "the constructive authors" of the law, and judges and legislators are merely "draftsmen ... exercising delegated authority." Ibid. The Court therefore deemed the "ultimate inquiry" to be whether a work is "attributable to the constructive authorship of the People." Id. , at 1242. The Court identified three factors to guide that inquiry: "the identity of the public official who created the work; the nature of the work; and the process by which the work was produced." Id. , at 1254. The Court found that each of those factors cut in favor of treating the OCGA annotations as government edicts authored by the People. It therefore rejected the Commission's assertion of copyright, vacated the injunction against PRO, and directed that judgment be entered for PRO.

We granted certiorari. 588 U.S. ––––, 139 S.Ct. 2746, 204 L.Ed.2d 1130 (2019).

II

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.

A

We begin with precedent. The government edicts doctrine traces back to a trio of cases decided in the 19th century. In this Court's first copyright case, Wheaton v. Peters , 8 Pet. 591, 8 L.Ed. 1055 (1834), the Court's third Reporter of Decisions,...

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