Supreme Court Says Georgia Can’t Copyright State Code

April 27, 2020 by Dan McCue
The U.S. Supreme Court building, June 2019. (Photo by Dan McCue)

WASHINGTON – The U.S. Supreme Court ruled Monday that an annotated version of Georgia’s state law code is not subject to copyright protection because it is a “government edict” and must be free for all to use.

In a 5-4 ruling, the judges rejected a copyright infringement lawsuit the state brought against a group called Public.Resources.Org, Inc., which copied and distributed the code without paying for it.

The annotations in the current Official Code of Georgia were produced by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the 15-member Code Revision Commission, a state entity composed mostly of legislators.

Under the agreement LexisNexis has the exclusive right to publish the annotated code, as long as it limits the price and makes a version without annotations free online.

But Georgia claims the copyright and sued Public.Resource.Org, a non-profit that advocates for public access, for infringement when the organization tried to publish the code on its own.

Writing for the majority decision, Chief Justice John Roberts cited a trio of 19th century cases.

In Wheaton v. Peters (1834), the court held that no reporter can have a copyright on the court’s opinions and that the Justices cannot confer such a right on any reporter.

In Banks v. Manchester (1888), the court held that judges could not assert copyright in “whatever work they perform in their capacity as judges” — be it “the opinion or decision, the statement of the case and the syllabus or the head note.”

Finally, in Callaghan v. Myers (1888) the court reiterated that an official reporter cannot hold a copyright interest in opinions created by judges.

The animating principle behind the government edicts doctrine is that no one can own the 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,” Roberts said.

He was joined in the majority by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

But Justice Clarence Thomas worried about the impact the majority’s decision would have on the 22 other states along with the District of Columbia that rely on arrangements similar to Georgia’s to produce annotated codes.

“The majority’s rule will leave in the lurch the many states, private parties and legal researchers who relied on the previously bright-line rule,” Thomas wrote in his dissent. “Perhaps, to the detriment of all, many states will stop producing annotated codes altogether.”

Thomas argued that annotations can be copyrighted, although Congress can step in and change the law.

His dissent was joined in full by Justice Samuel Alito Jr., and in part by Justice Stephen G. Breyer.

Justice Ruth Bader Ginsburg wrote a separate dissent that was also joined by Breyer.

“Beyond doubt, state laws are not copyrightable,” Ginsburg wrote. “Nor are other materials created by state legislators in the course of performing their lawmaking responsibilities, [for example], legislative committee reports, floor statements, unenacted bills.

“Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only ‘works that are (1) created by ‘judges and legislators (2) in the course of their judicial and legislative duties.’

“Because summarizing judicial decisions and commentary bearing on enacted statutes, in contrast to, for example, drafting a committee report to accompany proposed legislation, is not done in a legislator’s law-shaping capacity, I would hold the OCGA annotations copyrightable and therefore reverse the judgment of the Court of Appeals for the Eleventh Circuit,” she concluded.

Supreme Court

Trump Says It Will be 'Hard to Get' His Election Claims to Supreme Court
2020 Elections
Trump Says It Will be 'Hard to Get' His Election Claims to Supreme Court

WASHINGTON — President Donald Trump, even while repeating his groundless claim that "we won the race," appeared Sunday to acknowledge dwindling chances of success in his legal battle to overturn the results of the Nov. 3 election won by President-elect Joe Biden. "It's hard to get into the Supreme Court," he said... Read More

High Court Blocks NY Coronavirus Limits on Houses of Worship
Supreme Court
High Court Blocks NY Coronavirus Limits on Houses of Worship

WASHINGTON (AP) — As coronavirus cases surge again nationwide the Supreme Court late Wednesday barred New York from enforcing certain limits on attendance at churches and synagogues in areas designated as hard hit by the virus. The justices split 5-4 with new Justice Amy Coney Barrett in the... Read More

Alito: COVID Crisis Has Been a ‘Constitutional Stress Test’
Supreme Court
Alito: COVID Crisis Has Been a ‘Constitutional Stress Test’
November 13, 2020
by Dan McCue

WASHINGTON - Justice Samuel A. Alito, Jr., told the Federalist Society in a keynote address Thursday night the coronavirus pandemic has led to "previously unimaginable restrictions on individual liberty." "I am not diminishing the severity of the virus's threat to public health," Alito continued in a... Read More

Supreme Court Appears Likely to Preserve Most of Affordable Care Act
Supreme Court
Supreme Court Appears Likely to Preserve Most of Affordable Care Act
November 10, 2020
by Dan McCue

WASHINGTON -- So much for the new conservative majority of the Supreme Court dismantling the Affordable Care Act. On Tuesday, during oral arguments for California v. Texas, one of this term's most anticipated cases, two members of that majority, suggested they're not inclined to strike down... Read More

All About the New ACA Challenge Before the Supreme Court
Supreme Court
All About the New ACA Challenge Before the Supreme Court
November 10, 2020
by Kate Michael

WASHINGTON — This morning, the Supreme Court will hear oral arguments on a legal challenge seeking to overturn the Affordable Care Act.  This third major challenge to the ACA heard by the Supreme Court, Texas v. California seeks to decide whether Congress, by eliminating the penalty... Read More

Political Gaze Shifts to the Supreme Court as Justices Hear Pivotal Health Care Case
Supreme Court
Political Gaze Shifts to the Supreme Court as Justices Hear Pivotal Health Care Case

WASHINGTON — The Supreme Court with new Justice Amy Coney Barrett hears oral argument Tuesday in a case that threatens to wipe out the 2010 health care law, likely the term's most consequential case, under a political spotlight that rarely shines brighter on justices who would rather stay out of it.... Read More

News From The Well
scroll top