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April 27, 2020
In a 5-4 decision published on April 27, 2020, the U.S. Supreme Court held in Georgia, et al., Petitioners v. Public.Resource.Org, Inc. that copyright protection does not extend to the annotations contained in Georgia’s official annotated code. Chief Justice Roberts delivered the Court’s opinion, which Sotomayor, Kagan, Gorsuch and Kavanaugh joined. Thomas dissented (with Alito joining and Breyer joining in part), as did Ginsberg (with Breyer joining).
The decision extends the government edits doctrine—i.e., that officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties—from judges to legislators, even when their works do not have the force of law. The case arose after a non-profit organization focused on facilitating public access to government records made available at no charge Georgia’s official annotations to its code. Because these annotations are authored by an arm of the legislature in the course of its legislative duties, the Court held that they are ineligible for copyright.
Interestingly, both the majority and Justice Thomas accuse the other of usurping Congress’s role. The majority accuses Thomas of asking the Court to rewrite the definition of “author,” which Congress has repeatedly declined to change in several updates to the Copyright Act after the Court’s adoption of the government edicts doctrine. In his dissent, Justice Thomas argues that imputing such an intent to Congress is laughable, noting that the Copyright Act fails to define “author,” and that although it excludes from copyright protection works prepared by an officer or employee of the United States Government as part of that person’s official duties, there is no similar exclusion for state officials. Thomas also points to several practical implications of the Court’s ruling, noting that it will upend a longstanding practice used, not just by Georgia, but by 22 other states, that it will be difficult to administer, and that it may—perversely—drive up the cost of the annotated code, making it even less accessible to the public (Georgia’s official annotations cost $400, while rival West Publishing’s equivalent goes for $2,750).
Justice Ginsberg argues in her dissent that the government edicts doctrine should not apply here because the annotations were not done in a “law-shaping capacity,” citing the difference between the annotations (which “summariz[e] judicial decisions and commentary bearing on enacted statutes”) and “for example, drafting a committee report to accompany proposed legislation.”
Author: David Steiner
