The US Supreme Court ruled that state governments may not copyright annotated versions of their state’s legal code, saying that as a government edict, such information must be freely available to the public. The Court’s 5-4 decision in Georgia, et al. v. Public.Resource.Org, Inc. provides clarity to an issue that the Supreme Court has not addressed for more than 100 years.
The case pitted an open government watchdog group, Public.Resource,Org, against the State of Georgia. The state’s Georgia Code Revision Commission, an arm of the General Assembly, contracted with a private company to produce and publish an annotated version of the state’s legal code. This version, which was marketed primarily to legal audiences, included citations to relevant cases in addition to analysis from Georgia’s Attorney General.
Perhaps most importantly, under terms of the contract, the state claimed copyright protection over the annotated version of the text. A simple text version, without the supplemental information, remained free for online use, but the annotated version had to be purchased. Public.Resource.Org claimed the state had no right to claim copyright over a government edict, and republished the annotated version on its own website. Essentially, the watchdog group dared state officials to respond – which they did by suing Public.Resource.org for copyright infringement.
It is well-established under 17 U.S.C. § 105 that the US government may not copyright official edicts. However, before Monday’s decision, the Supreme Court had not weighed in on the subject of state governments obtaining such copyrights since a series of cases in the late 1800s.
The state’s argument was that the annotated version was not a government edict, but instead was a commentary on the law and, thus, eligible for copyright protection. But in writing for the majority, Chief Justice John Roberts rejected that notion, writing, “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.”
“We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyright-able 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.” The Court ended with a “clear path forward” to assist in determining whether a governmental work is copyrightable: (1) is the author of the work a judge or legislator? (2) if so, whatever work that judge or legislator produces in the course of his judicial or legislative duties is not copyrightable.
The Court’s decision upholds the October 2018 decision by the Eleventh Circuit in favor of Public.Resource.Org. In that decision, the Eleventh Circuit held that even an annotated version of a state’s legal code is “inherently public material” and that “these annotations case an undeniable, official shadow over how Georgia laws are interpreted and understood.”