SUPREME COURT OF THE UNITED STATES
GEORGIA, et al., PETITIONERS v.
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.
573 U.S. 431
, 463 (2014) (Scalia, J., dissenting), I respectfully dissent.
Like the majority, I begin with the three 19th-century precedents that the parties agree provide the foundation for the government edicts doctrine.
, 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
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
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.
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
, 91 F. 129 (CA6 1898) (Harlan, J.) (explaining that, under Banks
, annotations to Michigan statutes could be copyrighted).
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
, 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
, 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
, 896 F.3d 437, 458–459 (CADC 2018) (Katsas, J., concurring).
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
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.
, 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
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
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
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.
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.
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
] 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
, 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
, 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
v. Oracle USA
, 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
468 U.S. 63
, 77 (1984) (Rehnquist, J., dissenting).[5
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
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
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
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
464 U.S. 417
, 429 (1984). Because the majority has strayed from its proper role, I respectfully dissent.