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]
Justice Thomas, with whom Justice Alito joins,
and with whom Justice Breyer joins as to all but Part II–A and
footnote 6, dissenting.
According to the majority, this Court’s
19th-century “government edicts” precedents clearly stand for the
proposition that “judges and legislators cannot serve as authors
[for copyright purposes] when they produce works in their official
capacity.”
Ante, at 11. And, after straining to conclude
that the Georgia Code Revision Commission (Commission) is an arm of
the Georgia Legislature,
ante, at 9–10, the majority
concludes that Georgia cannot hold a copyright in the annotations
that are included as part of the Official Code of Georgia Annotated
(OCGA). This ruling will likely come as a shock to the 25 other
jurisdictions—22 States, 2 Territories, and the District of
Columbia—that rely on arrangements similar to Georgia’s to produce
annotated codes. See Brief for State of Arkansas et al. as
Amici Curiae 15, and App. to
id., at 1. Perhaps these
jurisdictions all overlooked this Court’s purportedly clear
guidance. 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. See
ante, at 5. Because I
believe we should “leave to Congress the task of deciding whether
the Copyright Act needs an upgrade,”
American Broadcasting
Cos. v.
Aereo,
Inc.,
573
U.S. 431, 463 (2014) (Scalia, J., dissenting), I respectfully
dissent.
I
Like the majority, I begin with the three
19th-century precedents that the parties agree provide the
foundation for the government edicts doctrine.
In
Wheaton v.
Peters, 8 Pet. 591
(1834), the Court first regarded it as self-evident that judicial
opinions cannot be copyrighted either by the judges who signed them
or by a reporter under whose auspices they are published. Congress
provided that, in return for a salary of $1,000, the Reporter of
Decisions for this Court would prepare reports consisting of
judicial opinions and additional materials summarizing the cases.
Id., at 614, 617 (argument). Wheaton, one of this Court’s
earliest Reporters, argued that he owned a copyright for the
entirety of his reports. He contended that he had “acquired the
right to the opinions by judges’ gift” once they became a part of
his volume.
Id., at 614 (same). The Court ultimately
remanded on the question whether Wheaton had complied with the
Copyright Act’s procedural requirements.
Id., at 667–668. In
doing so, it observed in dicta that “the court [was] unanimously of
[the] opinion, 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.
Fifty-four years later, the Court returned to
the same subject, suggesting a doctrinal basis for the rule that
judicial opinions and certain closely related materials cannot be
copyrighted. In
Banks v.
Manchester,
128 U.S.
244 (1888), the state-authorized publisher of the Ohio Supreme
Court’s decisions, Banks & Brothers, sued a competing publisher
for copyright infringement. The competing publisher reproduced
portions from Banks’ reports, including Ohio Supreme Court
decisions, statements of the cases, and syllabi, all of which were
originally prepared by the opinion’s authoring judge. This Court
held that these materials were not the proper subject of copyright.
In reaching that conclusion, the Court grounded its analysis in its
interpretation of the word “author” in the Copyright Act. It
anchored this interpretation in the “public policy” that “the judge
who, in his judicial capacity, prepares the opinion or decision
[and other materials]” is not “regarded as their author or their
proprietor, in the sense of [the Copyright Act], so as to be able
to confer any title by assignment.”
Banks, 128 U. S.,
at 253. The Court supported this conclusion by stating that “there
has always been a judicial consensus . . . that no
copyright could[,] under the statutes passed by Congress, be
secured in the products of the labor done by judicial officers in
the discharge of their judicial duties.”
Ibid. (emphasis
deleted). And the Court observed that this rule reflected the view
that the “authentic exposition and interpretation of the law
. . . is free for publication to all,” which in turn
prevents a judge from qualifying as an author.
Ibid.
Importantly, the Court also briefly discussed
whether the State of Ohio could directly hold the copyright. In
answering this question, the Court did not suggest that States were
categorically prohibited from holding copyrights as authors or
assignees. Instead, the Court simply noted that the State fell
outside the scope of the Act because it was not a “resident” or
“citizen of the United States,” as then required by statute, and
because it did not meet other statutory criteria.
Ibid. The
Court felt it necessary to observe, however, that “[w]hether the
State could take out a copyright for itself, or could enjoy the
benefit of one taken out by an individual for it, as the assignee
of a citizen of the United States or a resident therein, who should
be the author of a book, is a question not involved in the present
case, and we refrain from considering it.”
Ibid.
Finally, in
Callaghan v.
Myers,
128 U.S.
617 (1888), the Court addressed the limits of the government
edicts doctrine. In that case, the Court settled another dispute
between a publisher of court decisions and an alleged infringer.
The plaintiff purchased the proprietary rights to the reports
prepared by the Illinois Supreme Court’s reporter of decisions,
Freeman, including the copyright to the reports. Unlike in
Banks, these reports also contained material authored by
Freeman.
Callaghan, 128 U. S., at 645. The alleged
infringers copied the judicial decisions and Freeman’s materials.
In finding for the plaintiff, this Court reiterated that “there can
be no copyright in the opinions of the judges, or in the work done
by them in their official capacity as judges.”
Id., at 647
(citing
Banks, 128 U. S. 244). But the Court concluded
that “no [similar] ground of public policy” justified denying a
state official a copyright “cover[ing] the matter which is the
result of his intellectual labor.”
Callaghan, 128
U. S., at 647
.
II
These precedents establish that judicial
opinions cannot be copyrighted. But they do not exclude from
copyright protection notes that are prepared by an official court
reporter and published together with the reported opinions. There
is no apparent reason why the same logic would not apply to
statutes and regulations. Thus, it must follow from our precedents
that statutes and regulations cannot be copyrighted, but
accompanying notes lacking legal force can be. See
Howell v.
Miller, 91 F. 129 (CA6 1898) (Harlan, J.) (explaining that,
under
Banks and
Callaghan, annotations to Michigan
statutes could be copyrighted).
A
It is fair to say that the Court’s
19th-century decisions do not provide any extended explanation of
the basis for the government edicts doctrine. The majority is
nonetheless content to accept these precedents reflexively, without
examining the origin or validity of the rule they announced. For
the majority, it is enough that the precedents established a rule
that “seemed too obvious to adorn with further explanation.”
Ante, at 6. But the contours of the rule were far from
clear, and to understand the scope of the doctrine, we must explore
its underlying rationale.
In my view, the majority’s uncritical
extrapolation of precedent is inconsistent with the judicial role.
An unwillingness to examine the root of a precedent has led to the
sprouting of many noxious weeds that distort the meaning of the
Constitution and statutes alike. Although we have not been asked to
revisit these precedents, it behooves us to explore the origin of
and justification for them, especially when we are asked to apply
their rule for the first time in over 130 years.
The Court’s precedents suggest three possible
grounds supporting their conclusion. In
Banks, the Court
referred to the meaning of the term “author” in copyright law.
While the Court did not develop this argument, it is conceivable
that the contemporaneous public meaning of the term “author” was
narrower in the copyright context than in ordinary speech. At the
time this Court decided
Banks, the Copyright Act provided
protection for books, maps, prints, engravings, musical and
dramatic compositions, photographs, and works of art.[
1] Judicial opinions differ markedly from
these works. Books, for instance, express the thoughts of their
authors. They typically have no power beyond the ability of their
words to influence readers, and they usually are published at
private expense. Judicial opinions, on the other hand, do not
simply express the thoughts of the judges who write or endorse
them. Instead, they elaborate and apply rules of law that, in turn,
represent the implementation of the will of the people. Unlike
other copyrightable works of authorship, judicial opinions have
binding legal effect, and they are produced and issued at public
expense. Moreover, copyright law understands an author to be one
whose work will be encouraged by the grant of an exclusive right.
See
Kirtsaeng v.
John Wiley & Sons,
Inc.,
579 U. S. ___, ___ (2016) (slip op., at 6). But judges, when
acting in an official capacity, do not fit that description. The
Court in
Banks may have had these differences in mind when
it concluded that a judge fell outside the scope of the term
“author.” 128 U. S., at 253.
History may also suggest a narrower meaning of
“author” in the copyright context. In England, at least as far back
as 1666, courts and commentators agreed “that the property of all
law books is in the king, because he pays the judges who pronounce
the law.” G. Curtis, Law of Copyright 130 (1847); see also
Banks
& Bros. v.
West Publishing Co., 27 F. 50, 57 (CC
Minn. 1886) (citing English cases and treatises and concluding that
“English courts generally sustain the crown’s proprietary rights in
judicial opinions”). Blackstone described this as a “prerogative
copyrigh[t],” explaining that “[t]he king, as the executive
magistrate, has the right of promulging to the people all acts of
state and government. This gives him the exclusive privilege of
printing, at his own press, or that of his grantees, all acts of
parliament, proclamations, and orders of council.” 2 W. Blackstone,
Commentaries on the Laws of England 410 (1766) (emphasis deleted);
see also
Wheaton, 8 Pet., at 659–660. This history helps to
explain the dearth of cases permitting individuals to obtain
copyrights in judicial opinions. But under the Constitution,
sovereignty lies with the people, not a king. See The Federalist
No. 22, p. 152 (C. Rossiter ed. 1961);
id., No. 39, at
241. The English historical practice, when superimposed on the
Constitution’s recognition that sovereignty resides in the people,
helps to explain the Court’s conclusion that the “authentic
exposition and interpretation of the law . . . is free
for publication to all.”
Banks, 128 U. S., at 253.
Finally, concerns of fair notice, often
recognized by this Court’s precedents as an important component of
due process, also may have animated the reasoning of these
19th-century cases. As one court put it, “[t]he decisions and
opinions of the justices are the authorized expositions and
interpretations of the laws, which are binding upon all the
citizens. . . . Every citizen is presumed to know
the law thus declared, and it needs no argument to show that
justice requires that all should have free access to the opinions.”
Nash v.
Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560
(1886) (cited in
Banks, 128 U. S., at 253–254); see
also
American Soc. for Testing and Materials v.
Public.Resource.Org,
Inc., 896 F.3d 437, 458–459
(CADC 2018) (Katsas, J., concurring).
B
Allowing annotations to be copyrighted does
not run afoul of any of these possible justifications for the
government edicts doctrine. First, unlike judicial opinions and
statutes, these annotations do not even purport to embody the will
of the people because they are not law. The General Assembly of
Georgia has made abundantly clear through a variety of provisions
that the annotations do not create any binding obligations. OCGA
§1–1–7 states that “[a]ll historical citations, title and chapter
analyses, and notes set out in this Code are given for the purpose
of convenient reference and do not constitute part of the law.”
Section 1–1–1 further provides that “[t]he statutory portion of the
codification of Georgia laws . . . is enacted and shall
have the effect of statutes enacted by the General Assembly of
Georgia. The statutory portion of such codification shall be merged
with annotations . . . and other materials
. . . and shall be published by authority of the state.”
Thus, although the materials “merge” prior to publication in the
“official” code, the very provision calling for that merger makes
clear that the annotations serve as commentary, not law.
As additional evidence that the annotations do
not represent the will of the people, the General Assembly does not
enact statutory annotations under its legislative power. See Ga.
Const., Art. III, §1, ¶1 (vesting the legislative power in the
General Assembly). To enact state law, Georgia employs a process of
bicameralism and presentment similar to that embodied in the United
States Constitution. See Ga. Const., Art. III, §5; Art. V, §2, ¶4.
The annotations do not go through this process, a fact that even
the majority must acknowledge.
Ante, at 10; Ga. S. 52, Reg.
Sess., §54(b) (2019–2020) (“Annotations . . . except as
otherwise provided in the Code . . . are not enacted as
statutes by the provisions of this Act”).
Second, unlike judges and legislators, the
creators of annotations are incentivized by the copyright laws to
produce a desirable product that will eventually earn them a
profit. And though the Commission may require Lexis to follow
strict guidelines, the independent synthesis, analysis, and
creative drafting behind the annotations makes them analogous to
other copyrightable materials. See Brief for Matthew Bender &
Co., Inc., as
Amicus Curiae 4–7.
Lastly, the annotations do not impede fair
notice of the laws. As just stated, the annotations do not carry
the binding force of law. They simply summarize independent sources
of legal information and consolidate them in one place. Thus, OCGA
annotations serve a similar function to other copyrighted research
tools provided by private parties such as the American Law Reports
and Westlaw, which also contain information of great “practical
significance.”
Ante, at 17. Compare,
e.g., OCGA
§34–9–260 (annotation for
Cho Carwash Property,
L. L.
C. v.
Everett, 326 Ga. App. 6, 755 S.E.2d 823 (2014))
with Ga. Code Ann. §34–9–260 (Westlaw’s annotation for the
same).
The majority resists this conclusion, suggesting
that without access to the annotations, readers of Georgia law will
be unable to fully understand the true meaning of Georgia’s
statutory provisions, such as provisions that have been undermined
or nullified by court decisions.
Ante, at 17. That is simply
incorrect. As the majority tacitly concedes, a person seeking
information about changes in Georgia statutory law can find that
information by consulting the original source for the change in the
law’s status—the court decisions themselves. See
ante, at
17. The inability to access the OCGA merely deprives a researcher
of one specific tool, not to the underlying factual or legal
information summarized in that tool. See also
post, at 4
(Ginsburg, J., dissenting).[
2]
C
The text of the Copyright Act supports my
reading of the precedents.[
3]
Specifically, there are four indications in the text of the
Copyright Act that the OCGA annotations are copyrightable. As an
initial matter, the Act does not define the word “author,” 17
U. S. C. §101, or make any reference to the government
edicts doctrine. Accordingly, the term “author” itself does not
shed any light on whether the doctrine covers statutory
annotations. Second, while 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,”
§101; see also §105, the Act contains no similar prohibition
against works of state governments or works prepared at their
behest. “Congress’ use of explicit language in one provision
cautions against inferring the same limitation” elsewhere in the
statute.
State Farm Fire & Casualty Co. v.
United
States ex rel. Rigsby, 580 U. S. ___, ___ (2016) (slip
op., at 7) (internal quotation marks omitted);
Pacific Operators
Offshore,
LLP v.
Valladolid,
565 U.S.
207, 216 (2012). Third, the Act specifically notes that
annotations are copyrightable derivative works. §101. Here, again,
the Act does not expressly exclude from copyright protection
annotations created either by the State or at the State’s request.
Fourth, the Act provides that an author may hold a copyright in
“material contributed” in a derivative work, “as distinguished from
the preexisting material employed in the work.” §103(b); see also
Feist Publications,
Inc. v.
Rural Telephone
Service Co.,
499 U.S.
340, 359 (1991). These aspects of the statutory text, taken
together, further support the conclusion that the OCGA annotations
are copyrightable.
For all these reasons, I would conclude that, as
with the privately created annotations in
Callaghan,
Georgia’s statutory annotations at issue in this case are
copyrightable.
III
The majority reads this Court’s precedents
differently. In its view, the Court in
Banks held that
judges are not “authors” within the scope of the Copyright Act for
“whatever work they perform in their capacity as judges,” 128
U. S., at 253, so the same must be true for legislators, see
ante, at 8–9. Accordingly, works created by legislators in
their legislative capacity are not “original works of authorship,”
§102, and therefore cannot be copyrighted. This argument is flawed
in multiple respects.
A
Most notably, the majority’s textual analysis
hinges on accepting that its construction of “authorship,”
i.e., all works produced in a judge’s or legislator’s
official capacity, was so well established by our 19th-century
precedents that Congress incorporated it into the multiple
revisions of the Copyright Act. See
ante, at 12–13. Such
confidence is questionable, to say the least.
The majority’s understanding of the government
edicts doctrine seems to have been lost on dozens of States and
Territories, as well as the lower courts in this case. As already
stated, the 25 jurisdictions with official annotated codes
apparently did not view this Court’s precedents as establishing the
“official duties” definition of authorship. See Brief for State of
Arkansas et al. as
Amici Curiae.[
4] And if “our precedents answer the question” so
clearly,
ante, at 14, one wonders why the Eleventh Circuit
reached its conclusion in such a roundabout fashion. Rather than
following the majority’s “straightforward” path,
ante, at 5,
the Eleventh Circuit looked to the “zone of indeterminacy at the
frontier between edicts that carry the force of law and those that
do not” to determine whether the annotations were “sufficiently
law-like” to be “constructively authored by the People.”
Code
Revision Comm’n v.
Public.Resource.Org,
Inc., 906
F.3d 1229, 1233, 1242, 1243 (2018). The District Court likewise
does not appear to have viewed the question as well settled. In a
cursory analysis, it determined that the annotations were
copyrightable based on
Callaghan.
Code Revision
Comm’n v.
Public.Resource.Org,
Inc., 244
F. Supp. 3d 1350, 1356 (ND Ga. 2017). It is risible to
presume that Congress had knowledge of and incorporated a “settled”
meaning that eluded a multitude of States and Territories, as well
as at least four Article III judges.
Ante, at 13. Cf.
Rimini Street,
Inc. v.
Oracle USA,
Inc., 586 U. S. ___, ___–___ (2019) (slip op., at
9–10).
This presumption of congressional knowledge also
provides the basis for the majority’s conclusion that the
annotations are not “original works of authorship.” See
ante, at 11–12 (discussing §101). Stripped of the fiction
that this Court’s 19th-century precedents clearly demonstrated that
“authorship” encompassed all works performed as part of a
legislator’s duties, the majority’s textual argument fails.
The majority does not confront this criticism
head on. Instead, it simply repeats, without any further
elaboration, its unsupported conclusion that “[t]he 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.”
Ante,
at 16. This wave of the “magic wand of
ipse dixit” does
nothing to strengthen the majority’s argument, and in fact only
serves to underscore its weakness.
United States v.
Yermian,
468 U.S.
63, 77 (1984) (Rehnquist, J., dissenting).[
5]
B
In addition to its textual deficiencies, the
majority’s understanding of this Court’s precedents fails to
account for the critical differences between the role that judicial
opinions play in expounding upon the law compared to that of
statutes. The majority finds it meaningful, for instance, that
Banks prohibited dissents and concurrences from being
copyrighted, even though they carry no legal force.
Ante, at
15. At an elementary level, it is true that the judgment is the
only part of a judicial decision that has legal effect. But it
blinks reality to ignore that every word of a judicial
opinion—whether it is a majority, a concurrence, or a
dissent—expounds upon the law in ways that do not map neatly on to
the legislative function. Setting aside summary decisions, the
reader of a judicial opinion will always gain critical insight into
the reasoning underlying a judicial holding by reading all opinions
in their entirety. Understanding the reasoning that animates the
rule in turn provides pivotal insight into how the law will likely
be applied in future judicial opinions.[
6] Thus, deprived of access to judicial opinions,
individuals cannot access the primary, and therefore best, source
of information for the meaning of the law.[
7] And as true as that is today, access to these
opinions was even more essential in the 19th century before the
proliferation of federal and state regulatory law fundamentally
altered the role that common-law judging played in expounding upon
the law. See also
post, at 2 (Ginsburg, J., dissenting).
These differences provide crucial context for
Banks’ reasoning. Specifically, to ensure that judicial
“exposition and interpretation of the law” remains “free for
publication to all,” the word “author” must be read to encompass
all judicial duties.
Banks, 128 U. S., at 253. But
these differences also demonstrate that the same rule does not
a fortiori apply to all legislative duties.[
8]
C
In addition to being flawed as a textual and
precedential matter, the majority’s rule will prove difficult to
administer. According to one group of
amici, nearly all
jurisdictions with annotated codes use private contractors that
“almost invariably prepare [annotations] under the supervision of
legislative-branch or judicial-branch officials, including state
legislators or state-court judges.” Brief for State of Arkansas
et al. as
Amici Curiae 16–17. Under the majority’s
view, any one of these commissions or counsels could potentially be
reclassified as an “adjunct to the legislature.”
Ante, at
11. But the majority’s test for ascertaining the true nature of
these commissions raises far more questions than it answers.
The majority lists a number of factors—including
the Commission’s membership and funding, how the annotations become
part of the OCGA, and descriptions of the Commission from court
cases—to support its conclusion that the Commission is really part
of the legislature. See
ante, at 9–10. But it does not
specify whether these factors are exhaustive or illustrative and,
if the latter, what other factors may be important. The majority
also does not specify whether some factors weigh more heavily than
others when deciding whether to deem an oversight body a
legislative adjunct.
And even when the majority does list concrete
factors, pivotal guidance remains lacking. For example, the
majority finds it meaningful that 9 out of the Commission’s 15
members are legislators.
Ante, at 9; see OCGA §28–9–2
(noting that the other members of the Commission include the
State’s Lieutenant Governor, a judge, a district attorney, and
three other state bar members). But how many legislative members
are needed for a commission to become a legislative adjunct? The
majority provides no answers to any of these questions.
* * *
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. Perhaps, to the detriment of
all, many States will stop producing annotated codes altogether.
Were that to occur, the majority’s fear of an “economy-class”
version of the law will truly become a reality. See
ante, at
17. As Georgia explains, its contract enables the OCGA to be sold
at a fraction of the cost of competing annotated codes. For
example, Georgia asserts that Lexis sold the OCGA for $404 in 2016,
while West Publishing’s competing annotated code sold for $2,570.
Should state annotated codes disappear, those without the means to
pay the competitor’s significantly higher price tag will have a
valuable research tool taken away from them. Meanwhile, this Court,
which is privileged to have access to numerous research resources,
will scarcely notice. These negative practical ramifications are
unfortunate enough when they reflect the deliberative legislative
choices that we as judges are bound to respect. They are all the
more regrettable when they are the result of our own meddling.
Fortunately, as the majority and I agree, “ ‘critics of
[today’s] ruling can take their objections across the street,
[where] Congress can correct any mistake it sees.’ ”
Ante, at 13 (quoting
Kimble v.
Marvel
Entertainment,
LLC, 576 U.S. 446, 456 (2015)).
We have “stressed . . . that it 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), because “it is Congress that has been assigned
the task of defining the scope of the limited monopoly that should
be granted to authors,”
Sony Corp. of America v.
Universal City Studios,
Inc.,
464
U.S. 417, 429 (1984). Because the majority has strayed from its
proper role, I respectfully dissent.