photo of the Georgia State Capitol by Wikimedia Commons user Andre m
It was no big surprise when the U.S. Supreme Court ruled this week that the people of Georgia have an unfettered right to publish and read the annotated laws that their legislators approve each session.
I was not expecting it to be such a close call, however. In a 5-4 decision that scrambled the usual liberal and conservative blocs, the court rejected a copyright infringement case the state brought against a nonprofit organization that had made the Official Code of Georgia Annotated freely available online.
I first wrote about this case in December, but here is a brief recap if you missed it then. The state of Georgia sued the nonprofit Public.Resource.Org for posting the entirety of the Official Code of Georgia Annotated, or OCGA, online. Georgia’s Code Revision Commission gave the exclusive right of publication to the Matthew Bender & Co. imprint of LexisNexis, which also compiles the annotations under the commission’s supervision. The state, which established and supports the Code Revision Commission, reserves the copyright for the OCGA to itself. So Georgia sued Public.Resource.Org for copyright infringement when the nonprofit refused to take down the OCGA.
The 11th U.S. Circuit Court of Appeals had already ruled in favor of Public.Resource.Org. It ruled on the grounds that in our constitutional democracy the people are sovereign and thus own the work that their legislators produce. The appellate court built its rationale on a trio of 19th century cases that found the writings of judges ineligible for copyright protection.
In the majority opinion, Chief Justice John Roberts framed the question more narrowly than the 11th Circuit. The opinion focused on whether the Copyright Act and the earlier precedents allow the legislature or the Code Revision Commission to serve as the “author” of the work for copyright purposes. Roberts held that it does not. His fellow conservatives Neil Gorsuch and Brett Kavanaugh joined Roberts’ opinion, as did liberal Justices Sonia Sotomayor and Elena Kagan.
“A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author,” Roberts wrote. “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.”
In a dissenting opinion, Justice Clarence Thomas said the majority went too far in attributing the Code Revision Commission’s actions to the legislature itself. Justice Samuel Alito joined in Thomas’ opinion, and Justice Stephen Breyer also joined in part. Thomas wrote that the court’s ancient precedents allowed private parties to copyright their own commentaries and annotations of judicial opinions. Roughly two dozen states and territories have an arrangement similar to Georgia’s. In such instances, a private party – in this case, the Matthew Bender imprint of LexisNexis – receives the exclusive right to sell the annotated version of the state’s statutes in exchange for doing most of the legwork in producing the annotations. Thomas observed that if the court’s long-standing precedents prohibit this setup, a lot of legal scholarship had somehow overlooked the point.
“Perhaps these jurisdictions all overlooked this Court’s purportedly clear guidance,” Thomas wrote. “Or perhaps the widespread use of these arrangements indicates that today’s decision extends the government edicts doctrine to a new context, rather than simply ‘confirm[ing]’ what the precedents have always held.”
In a separate dissent, Justice Ruth Bader Ginsburg – also joined in part by Breyer – took matters further. A legislature can hold a copyright in material that it produces if that material does not have the force of law, she contended. As an example, she suggested a guidebook to the legislative process itself. “The OCGA annotations are descriptive rather than prescriptive,” Ginsburg argued. But her argument did not convince a majority of her fellow justices.
Call the final outcome a good day for small-r republicanism (no partisanship intended). Copyright is a private property right that is recognized in the law. It is the legal right to your own expression of a thought or idea, since ideas themselves are not subject to copyright. A copyright applies as soon as the expression takes some tangible form, such as a piece of writing, an image or a sound recording.
In the Georgia case, the only private party involved – Lexis and its Matthew Bender unit – surrendered any claim to copyright in the annotations accompanying the Georgia statutes. As part of the initial agreement with the Code Revision Commission, Lexis entered into a “work for hire” arrangement. As the majority noted, the case was brought in the name of the state of Georgia itself and in its legislatively funded commission, not the company the state hired.
Despite the circumscribed language in the chief justice’s opinion, the issue is the one the Court of Appeals originally identified: Georgia’s legislature and the citizens of that state are part of the same body. The legislature itself is a creature of the citizenry, subordinate to the self-governing population that selects it and bound by the constitution that grants and limits its powers. In this country, legislative bodies answer to the people they represent, not the other way around.
Thomas missed this, and Ginsburg missed it by an even wider margin. Having a legislature assert copyright against the people it represents is like having a newsletter sue its author-publisher for circulating the newsletter without permission. You cannot misappropriate something you already own.