U.S. Supreme Court Chief Justice Roberts

In a very close split decision (5-4), the Supreme Court ruled that Georgia cannot copyright its legal code, including annotations. (Georgia v. Public.Resource.Org, Inc. U.S. No. 18-1150) The Court stated that legislators are not considered “authors” under the Copyright Act for works produced in the course of their official duties. The decision in this case was based more on idealistic beliefs rather than party lines as Justices Sotomayor, Kagan, Gorsuch, Kavanaugh and Roberts joined the majority opinion. Chief Justice Roberts (shown here) delivered the opinion.

Facts of the Case

The State of Georgia has one official code of law – the Official Code of Georgia (OCGA). The Code contains the text of every Georgia statute as well as annotations beneath every statute. The annotations are typically summaries of judicial opinions construing each provision, summaries of the opinions of the State Attorney General, and a list of related law review articles and other pertinent references. A Code Revision Commission, a state entity, assembled the OCGA. Mostly legislators compose the Commission. Lexis-Nexis researched and distributed the Code with exclusive rights to publish. The state of Georgia owns any copyright rights.

A non-profit group, Public.Resource.Org (PRO), reposted the OCGA online and distributed copies to various parties. The State of Georgia, acting through the Commission, sent several cease and desist letters to PRO alleging copyright infringement. After PRO refused to remove the content, Georgia sued PRO for copyright infringement.

Georgia argued that the Copyright Act specifically lists “annotations” as a type of work eligible for copyright protection. They also argued that the Copyright Act specifically excludes works prepared by Federal government officials from copyright protection but does not include a similar provision for state officials. Further, Lexis-Nexis attorneys prepared the annotations. Accordingly, the attorneys did not prepare the annotations as part of any legislative duties. An unannotated version is available for free. However, the annotated version is only available at a cost.

Previous Court Rulings

The District Court ruled in the favor of Georgia, issuing an injunction against PRO. The injunction prohibited their publication and distribution of the OCGA. The District Court ruled the annotations were eligible for copyright protection since the annotations were not enacted into law and did not have the force of law. The Eleventh Circuit Court of Appeals reversed. Afterwards, Georgia appealed and the Supreme Court granted certiorari.

Supreme Court Decision

The Supreme Court held that the annotations are not eligible for copyright protection under the government edicts doctrine. This doctrine is based on the principle that no one can own the law. In a copyright context, case law states that judges cannot be considered authors of any work they produce while acting in their capacity as a judge. Similarly, the Court opines, legislators are not considered authors of any work produced as a result of their capacity as a legislator. The Supreme Court found that the Commission acts as an adjunct to the legislature and authors the annotations in the course of its legislative responsibilities thus precluding copyright protection.

The majority opinion made a distinction between “first-class readers” and “economy readers”. Economy readers have access to the laws themselves but not to the annotations which provide important guidance on recent court rulings on the laws as well as other commentary. This lack of guidance puts economy readers at a disadvantage.

This ruling will have a significant impact on several other states that rely on copyright protection for annotations to their code. Twenty two states and the District of Columbia rely on similar arrangements to produce annotated codes. Justice Thomas and Justice Ginsburg both wrote dissenting opinions. Justice Thomas wrote in his dissent that the ruling will leave many states, private parties and legal researchers in the lurch. The dissent also states that many states will stop producing annotated codes, which would be a detriment to all.