Justices form unique alliances in holding Georgia's annotated code not protected by copyright; Thomas dissent presses for closer review of precedent

In a 5-4 decision, the Supreme Court of the United States has held that the State of Georgia’s annotated code is not protected by the Copyright Act.  The decision in Georgia v. Public.Resource.Org, Inc. created interesting alliances, including an opinion by Chief Justice John Roberts joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh and a dissent by Justice Clarence Thomas joined by Justices Samuel A. Alito (in full) and Ruth Bader Ginsburg and Stephen Breyer (in part).  Justice Breyer dissented separately and was joined by Justice Ginsburg.

Background

The case concerns the annotated code of the State of Georgia, or the Official Code of Georgia Annotated (OGCA).  Georgia v. Public.Resource.Org, Inc., 590 U.S. ___, at 2 (2020) (slip op.).  The OGCA is the official code of the state, and it includes the text of all state statutes and non-binding annotations.  Id.

The annotations are prepared by Matthew Bender & Co., Inc. and are reviewed by the state’s Code Revision Commission. Id. at 3.  A work-for-hire agreement grants copyright protection in the OGCA to the Commission.  Id.  Each member of the Commission is a state legislator, and each year the OCGA submits the proposed statutory text and annotations to the legislature to vote to: (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.’” Id.  at 2-3.

A nonprofit organization named Public.Resource.Org (PRO) posted an electronic version of the OGCA online and distributed it to various individuals.  Id. at 4. The State of Georgia sued PRO for copyright infringement, and the District Court issued a decision for the Commission, while the Eleventh Circuit reversed.  Id. at 4-5.

The decision

The Court traced its decision through “a trio of cases.”  First, the Court cited Wheaton v. Peters, which held that the publisher of a reporter could not own a copyright interest in judicial decisions it published.  Id. at p. 6 (citing Wheaton v. Peters, 9 Pet. 591, 668 (1834)).  Next, the Court cited Banks v. Manchester, a logical extension of Wheaton which held that state-court reporters also could not claim copyright in judges’ opinions and other materials prepared by judges in their judicial capacity.  Id. at p. 6-7 (citing Banks v. Manchester, 128 U.S. 244, 253 (1888)).  Finally, the Court cited Callaghan v. Myers, which recognized that a reporter could own a copyright interest in materials it created which accompanied judges’ orders (e.g., headnotes, syllabi, and the like).  Id. at 7 (citing Callaghan v. Myers, 128 U.S. 617, 645, 647 (1888)).  Put differently, the court stated that “the doctrine bars the officials responsible for creating the law from being considered the ‘author[s]’ of ‘whatever work they perform in their capacity’ as lawmakers.  Id. at 8 (citations omitted). 

The Court then reasoned that, “[i]f judges, acting as judges, cannot be ‘authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.”  Id.

With the groundwork laid, the Court found that the OGCA’s annotations were authored by state legislators, stating that, while private citizens initially prepared the annotations, “for purposes of copyright, that labor redounds to the Commission as the statutory author.” Id. at 9.

The Court then found that the Commission “functions as an arm” of the Georgia legislature because it, for example, receives legislature funding, is staffed by the legislature, the annotations are approved by the legislature, and the Georgia constitution states that the Commission “is within the sphere of the legislative authority.”  Id. at 9-10 (citations omitted).  Using similar logic and reasoning, the Court connected the last link, finding that the Commission’s annotations were created in the legislators’ capacity as lawmakers.  Id. at 10-11. 

The dissents

Justice Thomas’s dissent cites the same three cases as the majority but comes to a different conclusion – the precedent merely recognize that copyright protection does not vest in material prepared by a judge in her or his judicial capacity.  Id. at 4-5 (Thomas, J., dissenting).  Justice Thomas also took issue with the majority’s quick acceptance of the precedent at issue, stating that the majority accepted and extrapolated on the precedent “reflexively, without examining the origin or validity of the rule they announced,” a step which describes as “inconsistent with the judicial role.” Id. at 5.

Justice Thomas’s dissent recognizes the validity of the rule that judicial opinions may not be protectable by copyright but questions whether the rule should be extended to annotations.  Id. at 4.  He argues that the annotations “are not law,” create no binding obligations, and are not enacted by the legislature.  Id. at 7.  Justice Thomas’s also argues that the authors of annotations, unlike judges, are incentivized to create a desirable product so the material can be sold or their services retained.  Id. at 7-8.

Finally, Justice Thomas finds support for his position in the text of the Copyright Act, which states that: (1) the statute does not define the term “author”; (2) the act does not prohibit protection for works of state governments, only the federal government; (3) the act specifically states that annotations are copyrightable; and (4) the act provides rights for derivative works.  Id. at 10.  The majority dismissed this reasoning, finding that the term “author” does not apply to judge’s and legislator’s acting in their official capacity.  Id. at 12-13 (Roberts, C.J., majority op.).

Justice Breyer dissented separately, arguing that state laws, as well as “other materials created by state legislators in the course of performing their lawmaking responsibilities,” are not copyrightable.  Id. at 1 (Breyer, J., dissenting).  But Justice Breyer disagreed with the majority because, in his view, the OGCA’s annotations were not created in the legislator’s lawmaking capacity.  Id.

Potential impacts

There is likely to be an immediate, practical impact from the ruling, as well as a potential longer-term effect. 

As a practical effect, the Justice Thomas dissent notes that 22 states, two territories and the District of Columbia currently have arrangements similar to Georgia’s annotated code.  Id. at 1 (Thomas, J. dissenting).  These materials may no longer be protected by copyright.  Justice Thomas argues that it will be difficult to decide whether each annotated code is or is not created by legislators’ in their lawmaking capacity; a premise with which the majority disagrees.  Justice Thomas states a concern that individual states will stop producing annotated codes, leading to “an ‘economy-class’ version of the law,” where only those of means will be able to afford to purchase annotated statutory codes at a high sum because they were not produced as a result of receiving a government contract. 

In the wake of the ruling, states producing official annotated codes may consider whether to restructure contracts for these codes.  Perhaps, as the decisions fear, some states will do away with the annotated codes altogether.  The factors of legislative oversight referenced by the majority opinion may, however, provide guideposts for the creation of copyrightable annotated codes. 

Or, perhaps, the matter will be taken up in the manner urged by both the majority and the dissent – by the members of Congress – to state more clearly delineated rules of who can own copyright for what.

There is also a more theoretical impact, one which may help to explain, in part, the unique split of the justices in the case.  Justice Thomas’s dissent is as noteworthy for its legal reasoning as for its discussion of precedent.  Thomas takes the majority to task, claiming the majority failed in its judicial role to examine whether the precedent was properly grounded.  Precedent, of course, is a timely topic at the High Court, especially after the recent appointments of Justices Kavanaugh and Gorsuch, who are considered part of the Court’s “conservative wing.”  As an example, the word “precedent” was uttered 440 times during the four-day hearing of Justice Gorsuch in March 2017.  

Interestingly, Justices Kagan and Sotomayor, members of the court’s “liberal wing,” joined with three members of the Court’s “conservative wing” to form the majority in a case focused on following or extrapolating precedent.  Precedent seems to be a theme for Justice Kagan, who recently dissented with Chief Justice Roberts and Justices Alito and Kavanaugh to vote on the side of precedent in a 6-3 decision which held that the Sixth Amendment requires that a criminal defendant be found guilty by a unanimous verdict.  Ramos v. Louisiana, 590 U.S. __ (2020) (slip op.).  

In future – and perhaps more polarizing – cases, it remains to be seen whether the language from either the majority’s opinion or Justice Thomas’s dissent will be used as a sword or shield.