NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1150
_________________
GEORGIA, et al., PETITIONERS
v.
PUBLIC.RESOURCE.ORG, INC.
on writ of certiorari to the united states
court of appeals for the eleventh circuit
[April 27, 2020]
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 (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 (1834);
Banks v.
Manchester,
128 U.S.
244 (1888);
Callaghan v.
Myers,
128 U.S.
617 (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. ___
(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 (1834), the Court’s third Reporter of
Decisions, Wheaton, sued the fourth, Peters, unsuccessfully
asserting a copyright interest in the Justices’ opinions.
Id., at 617 (argument). In Wheaton’s view, the opinions
“must have belonged to some one” because “they were new, original,”
and much more “elaborate” than law or custom required.
Id.,
at 615. Wheaton argued that the Justices were the authors and had
assigned their ownership interests to him through a tacit “gift.”
Id., at 614. The Court unanimously rejected that argument,
concluding that “no reporter has or can have any copyright in the
written opinions delivered by this court” and that “the judges
thereof cannot confer on any reporter any such right.”
Id.,
at 668 (opinion).
That conclusion apparently seemed too obvious to
adorn with further explanation, but the Court provided one a half
century later in
Banks v.
Manchester,
128 U.S.
244 (1888). That case concerned whether Wheaton’s state-court
counterpart, the official reporter of the Ohio Supreme Court, held
a copyright in the judges’ opinions and several non-binding
explanatory materials prepared by the judges.
Id., at
249–251. The Court concluded that he did not, explaining that “the
judge who, in his judicial capacity, prepares the opinion or
decision, the statement of the case and the syllabus or head note”
cannot “be regarded as their author or their proprietor, in the
sense of [the Copyright Act].”
Id., at 253. Pursuant to “a
judicial
consensus” dating back to
Wheaton, judges
could not assert copyright in “whatever work they perform in their
capacity as judges.”
Banks, 128 U. S, at 253 (emphasis
in original). Rather, “[t]he whole work done by the judges
constitutes the authentic exposition and interpretation of the law,
which, binding every citizen, is free for publication to all.”
Ibid. (citing
Nash v.
Lathrop, 142 Mass. 29, 6
N.E. 559 (1886)).
In a companion case decided later that Term,
Callaghan v.
Myers,
128 U.S.
617 (1888), the Court identified an important limiting
principle. As in
Wheaton and
Banks, the Court
rejected the claim that an official reporter held a copyright
interest in the judges’ opinions. But, resolving an issue not
addressed in
Wheaton and
Banks, the Court upheld the
reporter’s copyright interest in several explanatory materials that
the reporter had created himself: headnotes, syllabi, tables of
contents, and the like.
Callaghan, 128 U. S., at 645,
647. Although these works mirrored the judge-made materials
rejected in
Banks, they came from an author who had no
authority to speak with the force of law. Because the reporter was
not a judge, he was free to “obtain[ ] a copyright” for the
materials that were “the result of his [own] intellectual labor.”
128 U. S., at 647.
These cases establish a straightforward rule:
Because judges are vested with the authority to make and interpret
the law, they cannot be the “author” of the works they prepare “in
the discharge of their judicial duties.”
Banks, 128
U. S., at 253. This rule applies both to binding works (such
as opinions) and to non-binding works (such as headnotes and
syllabi).
Ibid. It does not apply, however, to works created
by government officials (or private parties) who lack the authority
to make or interpret the law, such as court reporters. Compare
ibid. with
Callaghan, 128 U. S., at 647.
The animating principle behind this rule is that
no one can own the law. “Every citizen is presumed to know the
law,” and “it needs no argument to show . . . that all
should have free access” to its contents.
Nash, 142 Mass.,
at 35, 6 N. E., at 560 (cited by
Banks, 128 U. S., at
253–254). Our cases give effect to that principle in the copyright
context through construction of the statutory term “author.”
Id., at 253.[
1] Rather
than attempting to catalog the materials that constitute “the law,”
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.
Ibid. (emphasis
added). Because these officials are generally empowered to make and
interpret law, their “whole work” is deemed part of the “authentic
exposition and interpretation of the law” and must be “free for
publication to all.”
Ibid.
If 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.
Courts have thus long understood the government edicts doctrine to
apply to legislative materials. See,
e.g.,
Nash, 142
Mass., at 35, 6 N. E., at 560 (judicial opinions and statutes
stand “on substantially the same footing” for purposes of the
government edicts doctrine);
Howell v.
Miller, 91 F.
129, 130–131, 137–138 (CA6 1898) (Harlan, J., Circuit Justice,
joined by then-Circuit Judge Taft) (analyzing statutes and
supplementary materials under
Banks and
Callaghan and
concluding that the materials were copyrightable because they were
prepared by a private compiler).
Moreover, just as the doctrine applies to
“whatever work [judges] perform in their capacity as judges,”
Banks, 128
U. S., at 253, it applies to whatever work
legislators perform in their capacity as legislators. That of
course includes final legislation, but it also includes explanatory
and procedural materials legislators create in the discharge of
their legislative duties. In the same way that judges cannot be the
authors of their headnotes and syllabi, legislators cannot be the
authors of (for example) their floor statements, committee reports,
and proposed bills. These materials are part of the “whole work
done by [legislators],” so they must be “free for publication to
all.”
Ibid.
Under our precedents, therefore, copyright does
not vest in works that are (1) created by judges and legislators
(2) in the course of their judicial and legislative duties.
B
1
Applying that framework, Georgia’s annotations
are not copyrightable. The first step is to examine whether their
purported author qualifies as a legislator.
As we have explained, the annotations were
prepared in the first instance by a private company (Lexis)
pursuant to a work-for-hire agreement with Georgia’s Code Revision
Commission. The Copyright Act therefore deems the Commission the
sole “author” of the work. 17 U. S. C. §201(b). Although
Lexis expends considerable effort preparing the annotations, for
purposes of copyright that labor redounds to the Commission as the
statutory author. Georgia agrees that the author is the Commission.
Brief for Petitioners 25.
The Commission is not identical to the Georgia
Legislature, but functions as an arm of it for the purpose of
producing the annotations. The Commission is created by the
legislature, for the legislature, and consists largely of
legislators. The Commission receives funding and staff designated
by law for the legislative branch. Significantly, the annotations
the Commission creates are approved by the legislature before being
“merged” with the statutory text and published in the official code
alongside that text at the legislature’s direction. OCGA §1–1–1;
see 906 F. 3d, at 1245, 1255; Tr. of Oral Arg. 8.
If there were any doubt about the link between
the Commission and the legislature, the Georgia Supreme Court has
dispelled it by holding that, under the Georgia Constitution, “the
work of the Commission;
i.e., selecting a publisher and
contracting for and supervising the codification of the laws
enacted by the General Assembly, including court interpretations
thereof,
is within the sphere of legislative authority.”
Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34
(emphasis added). That holding is not limited to the Commission’s
role in codifying the statutory text. The Commission’s “legislative
authority” specifically includes its “codification of
. . . court interpretations” of the State’s laws.
Ibid. Thus, as a matter of state law, the Commission wields
the legislature’s authority when it works with Lexis to produce the
annotations. All of this shows that the Commission serves as an
extension of the Georgia Legislature in preparing and publishing
the annotations. And it helps explain why the Commission brought
this suit asserting copyright in the annotations “on behalf of and
for the benefit of ” the Georgia Legislature and the State of
Georgia. App. 20.[
2]
2
The second step is to determine whether the
Commission creates the annotations in the “discharge” of its
legislative “duties.”
Banks, 128 U. S., at 253. It
does. Although the annotations are not enacted into law through
bicameralism and presentment, the Commission’s preparation of the
annotations is under Georgia law an act of “legislative authority,”
Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34, and
the annotations provide commentary and resources that the
legislature has deemed relevant to understanding its laws. Georgia
and Justice Ginsburg emphasize that the annotations do not purport
to provide authoritative explanations of the law and largely
summarize other materials, such as judicial decisions and law
review articles. See
post, at 3–4 (dissenting
opinion)
. But that does not take them outside the exercise
of legislative duty by the Commission and legislature. Just as we
have held that the “statement of the case and the syllabus or head
note” prepared by judges fall within the “work they perform in
their capacity as judges,”
Banks, 128 U. S., at 253, so
too annotations published by legislators alongside the statutory
text fall within the work legislators perform in their capacity as
legislators.
In light of the Commission’s role as an adjunct
to the legislature and the fact that the Commission authors the
annotations in the course of its legislative responsibilities, the
annotations in Georgia’s Official Code fall within the government
edicts doctrine and are not copyrightable.
III
Georgia resists this conclusion on several
grounds. At the outset, Georgia advances two arguments for why, in
its view, excluding the OCGA annotations from copyright protection
conflicts with the text of the Copyright Act. Both are
unavailing.
First, Georgia notes that §101 of the Act
specifically lists “annotations” among the kinds of works eligible
for copyright protection. But that provision refers only to
“annotations . . . which . . . represent an
original work of
authorship.” 17 U. S. C. §101
(emphasis added). The whole point of the government edicts doctrine
is that judges and legislators cannot serve as authors when they
produce works in their official capacity. While the reference to
“annotations” in §101 may help explain why supplemental,
explanatory materials are copyrightable when prepared by a private
party, or a non-lawmaking official like the reporter in
Callaghan, it does not speak to whether those same materials
are copyrightable when prepared by a judge or a legislator. In the
same way that judicial materials are ineligible for protection even
though they plainly qualify as “[l]iterary works . . .
expressed in words,”
ibid., legislative materials are
ineligible for protection even if they happen to fit the
description of otherwise copyrightable “annotations.”
Second, Georgia draws a negative inference from
the fact that the Act excludes from copyright protection “work[s]
prepared by an officer or employee of the United States Government
as part of that person’s official duties” and does not establish a
similar rule for the States. §101; see also §105. But the bar on
copyright protection for federal works sweeps much more broadly
than the government edicts doctrine does. That bar applies to works
created by all federal “officer[s] or employee[s],” without regard
for the nature of their position or scope of their authority.
Whatever policy reasons might justify the Federal Government’s
decision to forfeit copyright protection for its own proprietary
works, that federal rule does not suggest an intent to displace the
much narrower government edicts doctrine with respect to the
States. That doctrine does not apply to non-lawmaking officials,
leaving States free to assert copyright in the vast majority of
expressive works they produce, such as those created by their
universities, libraries, tourism offices, and so on.
More generally, Georgia suggests that we should
resist applying our government edicts precedents to the OCGA
annotations because our 19th-century forebears interpreted the
statutory term author by reference to “public policy”—an approach
that Georgia believes is incongruous with the “modern era” of
statutory interpretation. Brief for Petitioners 21 (internal
quotation marks omitted). But we are particularly reluctant to
disrupt precedents interpreting language that Congress has since
reenacted. As we explained last Term in
Helsinn Healthcare
S. A. v.
Teva Pharmaceuticals USA,
Inc., 586
U. S. ___ (2019), when Congress “adopt[s] the language used in
[an] earlier act,” we presume that Congress “adopted also the
construction given by this Court to such language, and made it a
part of the enactment.”
Id., at ___ (slip op., at 7)
(quoting
Shapiro v.
United States,
335 U.S.
1, 16 (1948)). A century of cases have rooted the government
edicts doctrine in the word “author,” and Congress has repeatedly
reused that term without abrogating the doctrine. The term now
carries this settled meaning, and “critics of our ruling can take
their objections across the street, [where] Congress can correct
any mistake it sees.”
Kimble v.
Marvel Entertainment,
LLC, 576 U.S. 446, 456 (2015).[
3]
Moving on from the text, Georgia invokes what it
views as the official position of the Copyright Office, as
reflected in the Compendium of U. S. Copyright Office
Practices (Compendium). But, as Georgia concedes, the Compendium is
a non-binding administrative manual that at most
merits deference under
Skidmore v.
Swift & Co.,
323 U.S.
134 (1944). That means we must follow it only to the extent it
has the “power to persuade.”
Id., at 140. Because our
precedents answer the question before us, we find any competing
guidance in the Compendium unpersuasive.
In any event, the Compendium is largely
consistent with our decision. Drawing on
Banks, it states
that, “[a]s a matter of longstanding public policy, the U. S.
Copyright Office will not register a government edict that has been
issued by any state, local, or territorial government, including
legislative enactments, judicial decisions, administrative rulings,
public ordinances,
or similar types of official legal
materials.” Compendium §313.6(C)(2) (rev. 3d ed. 2017)
(emphasis added). And, under
Banks, what counts as a
“similar” material depends on what kind of officer created the
material (
i.e., a judge) and whether the officer created it
in the course of official (
i.e., judicial) duties. See
Compendium §313.6(C)(2) (quoting
Banks, 128 U. S., at
253, for the proposition that copyright cannot vest “in the
products of the labor done by judicial officers in the discharge of
their judicial duties”).
The Compendium goes on to observe that “the
Office may register annotations that summarize or comment upon
legal materials . . . unless the annotations themselves
have the force of law.” Compendium §313.6(C)(2). But that broad
statement—true of annotations created by officials such as court
reporters that lack the authority to make or interpret the law—does
not engage with the critical issue of annotations created
by
judges or legislators in their official capacities. Because the
Compendium does not address that question and otherwise echoes our
government edicts precedents, it is of little relevance here.
Georgia also appeals to the overall purpose of
the Copyright Act to promote the creation and dissemination of
creative works. Georgia submits that, without copyright protection,
Georgia and many other States will be unable to induce private
parties like Lexis to assist in preparing affordable annotated
codes for widespread distribution. That appeal to copyright policy,
however, is addressed to the wrong forum. As Georgia acknowledges,
“[I]t is generally for Congress, not the courts, to decide how best
to pursue the Copyright Clause’s objectives.”
Eldred v.
Ashcroft,
537 U.S.
186, 212 (2003). And that principle requires adherence to
precedent when, as here, we have construed the statutory text and
“tossed [the ball] into Congress’s court, for acceptance or not as
that branch elects.”
Kimble, 576 U. S., at 456.
Turning to our government edicts precedents,
Georgia insists that they can and should be read to focus
exclusively on whether a particular work has “the force of law.”
Brief for Petitioners 32 (capitalization deleted). Justice Thomas
appears to endorse the same view. See
post, at 4. But that
framing has multiple flaws.
Most obviously, it cannot be squared with the
reasoning or results of our cases—especially
Banks.
Banks, following
Wheaton and the “judicial consensus”
it inspired, denied copyright protection to judicial opinions
without excepting concurrences and dissents that carry no legal
force. 128 U. S., at 253 (emphasis deleted). As every judge
learns the hard way, “comments in [a] dissenting opinion” about
legal principles and precedents “are just that: comments in a
dissenting opinion.”
Railroad Retirement Bd. v.
Fritz,
449 U.S.
166, 177, n. 10 (1980). Yet such comments are covered by
the government edicts doctrine because they come from an official
with authority to make and interpret the law.
Indeed,
Banks went even further and
withheld copyright protection from headnotes and syllabi produced
by judges. 128 U. S., at 253. Surely these supplementary
materials do not have the force of law, yet they are covered by the
doctrine. The simplest explanation is the one
Banks
provided: These non-binding works are not copyrightable because of
who creates them—judges acting in their judicial capacity. See
ibid.
The same goes for non-binding legislative
materials produced by legislative bodies acting in a legislative
capacity. There is a broad array of such works ranging from floor
statements to proposed bills to committee reports. Under the logic
of Georgia’s “force of law” test, States would own such materials
and could charge the public for access to them.
Furthermore, despite Georgia’s and Justice
Thomas’s purported concern for the text of the Copyright Act, their
conception of the government edicts doctrine has
less of a
textual footing than the traditional formulation. The textual basis
for the doctrine is the Act’s “authorship” requirement, which
unsurprisingly focuses on—the author. Justice Thomas urges us to
dig deeper to “the root” of our government edicts precedents.
Post, at 5. But, in our view, the text
is the root.
The Court long ago interpreted the word “author” to exclude
officials empowered to speak with the force of law, and Congress
has carried that meaning forward in multiple iterations of the
Copyright Act. This textual foundation explains why the doctrine
distinguishes between some authors (who are empowered to speak with
the force of law) and others (who are not). Compare
Callaghan, 128 U. S., at 647, with
Banks, 128
U. S., at 253. But the Act’s reference to “authorship”
provides no basis for Georgia’s rule distinguishing between
different categories of content with different effects.[
4]
Georgia minimizes the OCGA annotations as
non-binding and non-authoritative, but that description undersells
their practical significance. Imagine a Georgia citizen interested
in learning his legal rights and duties. If he reads the
economy-class version of the Georgia Code available online, he will
see laws requiring political candidates to pay hefty qualification
fees (with no indigency exception), criminalizing broad categories
of consensual sexual conduct, and exempting certain key evidence in
criminal trials from standard evidentiary limitations—with no hint
that important aspects of those laws have been held
unconstitutional by the Georgia Supreme Court. See OCGA §§21–2–131,
16–6–2, 16–6–18, 16–15–9 (available at www.legis.ga.gov).
Meanwhile, first-class readers with access to the annotations will
be assured that these laws are, in crucial respects, unenforceable
relics that the legislature has not bothered to narrow or repeal.
See §§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at
https://store.
lexisnexis . com / products / official - code - of - georgia - annotated -
skuSKU6647 for $412.00).
If everything short of statutes and opinions
were copyrightable, then States would be free to offer a whole
range of premium legal works for those who can afford the extra
benefit. A State could monetize its entire suite of legislative
history. With today’s digital tools, States might even launch a
subscription or pay-per-law service.
There is no need to assume inventive or
nefarious behavior for these concerns to become a reality. Unlike
other forms of intellectual property, copyright protection is both
instant and automatic. It vests as soon as a work is captured in a
tangible form, triggering a panoply of exclusive rights that can
last over a century. 17 U. S. C. §§102, 106, 302. If
Georgia were correct, then unless a State took the affirmative step
of transferring its copyrights to the public domain, all of its
judges’ and legislators’ non-binding legal works would be
copyrighted. And citizens, attorneys, nonprofits, and private
research companies would have to cease all copying, distribution,
and display of those works or risk severe and potentially criminal
penalties. §§501–506. Some affected parties might be willing to
roll the dice with a potential fair use defense. But that defense,
designed to accommodate First Amendment concerns, is notoriously
fact sensitive and often cannot be resolved without a trial. Cf.
Harper & Row, Publishers, Inc. v.
Nation
Enterprises,
471 U.S.
539, 552, 560–561 (1985). The less bold among us would have to
think twice before using official legal works that illuminate the
law we are all presumed to know and understand.
Thankfully, there is a clear path forward that
avoids these concerns—the one we are already on. Instead of
examining whether given material carries “the force of law,” we ask
only whether the author of the work is a judge or a legislator. If
so, then whatever work that judge or legislator produces in the
course of his judicial or legislative duties is not copyrightable.
That is the framework our precedents long ago established, and we
adhere to those precedents today.
* * *
For the foregoing reasons, we affirm the
judgment of the Eleventh Circuit.
It is so ordered.