Copyrighting the Official Annotated Statutes: Georgia v. Public.Resource.org

The Supreme Court has granted certiorari in the important public access case of Georgia v. PublicResource.org Inc. The case focuses on Georgia official statutory code with official annotations (the “Official Code of Georgia Annotated” or  “OCGA”).  OCGA includes the statutes, section titles, statutory histories, guidance from the Georgia Code Revision Commission, judicial summaries, and opinions by the State AG, for example.  PublicResources.org bought a copy of the OCGA, copied it, and uploaded it to the internet so that the public could have free access to the law.  Georgia then sued for copyright infringement.

The district court held OCGA copyrightable and the 11th Circuit reversed that decision — finding that the “government edicts doctrine” prohibits copyright in this case.  One difficulty with with that doctrine is that it was last discussed by the U.S. Supreme Court 130 years ago in Callaghan v. Myers, 128 U.S. 617 (1888) and Banks v. Manchester, 128 U.S. 244 (1888).

Question presented:

This Court has held, as a matter of “public policy,” that judicial opinions are not copyrightable. Banks v. Manchester, 128 U.S. 244, 253-254 (1888). Lower courts have extended that holding to state statutes. See, e.g., John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 38 (1st Cir. 2003). But the rule that “government edicts” cannot be copyrighted has “proven difficult to apply when the material in question does not fall neatly into the categories of statutes or judicial opinions.” Ibid.

The question presented is: Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.

OCGA is published by LEXIS, but its contents are particularly controlled by the Georgia General Assembly and the Commission (a division of the Assembly).  The appellate panel found particularly that “the Commission exercises direct, authoritative control over the creation of the OCGA annotations at every stage of
their preparation.”

Although PublicResources won at the appellate court, it agreed that the Supreme Court should hear the case in order to clarify and simplify the law of public access to public information. Current case law “is confusing and outcomes are difficult to predict.”

Briefing in the case will continue over the summer and the Court will likely schedule oral arguments for late 2019.

33 thoughts on “Copyrighting the Official Annotated Statutes: Georgia v. Public.Resource.org

  1. 6

    Do we really have to talk about Trump on this blog? Trump dominates all headlines and news organizations and has now for years.

    Trump in relation to patents is interesting and I guess it is relevant that our entire structure of laws seems to have fallen down just as patent law has fallen down.

    But come on.

    1. 6.1

      It is clearly not the first time that Malcolm has simply decided that the “rules” do not apply to himself, and we have had MANY of these very types of rants from Malcolm expunged in the past.

      He (again) displays his own “Trump-like” nature and disregard for anything except his own feelings.

  2. 5

    This is a friendly reminder that our Perznit is a r @ p i st who has openly bragged about assaulting women. It’s also well known that he’s a r-@-c-i-st, a s 0 ci0 path and a p a th 0 l0gical liar. If you sit back and pretend that this is “okay” or “tolerable” or “the new normal”, that makes you a cr e ep and an @ h0le. If you actually vote for this guy then you’re a supporter of a r @ pist and you deserve to be shunned and called out for that. I will make sure that happens if I get wind of your “leanings”.

    Of course, in a truly just world, the wives and daughters of Rep-u-k-k-k-es would be repeatedly r @ ped by people just like Orange Sh-tstain, so they could get a little taste of that wonderful reality. And then of course they’d be forced to give birth to the little “miracle” that results.

    1. 5.1

      ?

      Aiming for more removals?

      How the F is this anything but an emotional — and out of place — rant?

      1. 5.1.1

        It’s only “out of place”, Bildo, if you live in a world where having a serial r @ pist for a Perznit is acceptable to you. It appears that is your situation, so I kindly invite you and every woman in your family to get r @ ped. Maybe spend some time locked up in a filthy cage, too? Enjoy, you sick little m 0 ther f cker. And that goes for every Re p u k k k e out there reading this. Rot in hell. That’s what you deserve.

        1. 5.1.1.1

          It is out of place because this is (supposedly) a patent law blog.

          There are no shortages of appropriate places for you to vent your feelings on non-patent law items.

          1. 5.1.1.1.1

            Last time I checked, “patent law” was a subset of “law” and the r@-p-ist p@-th-0-l-0gical l-y-I-ng Perznit gets to nominate judges and appoint people to run the PTO.

            So what was your point again? You like to defend super entitled rich white @ h0le r@-pers because … why? You identify with them somehow?

            1. 5.1.1.1.1.1

              The point is clearly that the subset of law known as patent law is what this forum is for.

              This forum is not for any and all law, and certainly not for your feelings which are quite distinct from patent law.

              This is basic logic, but you seem to have an issue with that and your lack of control over your feelings.

      2. 5.1.2

        Also: face the undeniable reliably that rampant patent maximalism is a glibertarian / Re pu-k-k-k-e fantasy. Big Jeans is a Re p u k-k-k-e, for example, as are most of his “contributors” and most of his echo chamber denizens.

        Just own it. Own the r @ – ci – sm. Own the mis 0gyny. Own the hyp 0cricy. O wn the dominionsm. Own the gaping a – h0leness and white suprem-a- cy. Own all of it and quit your f — king crying when people point out what kind of f k ng ap 0l 0gist water-carrying @ h0le you really are.

        1. 5.1.2.1

          Your “one-bucketing” is noted.

          Do you realize that your obsess10n with Quinn paints you as quite the lunatic?

          1. 5.1.2.1.1

            It’s your obsession with defending him that is bizarre, Bildo. I mean, he’s a Rep u k k ke t0 0l and a hack attorney with a bunch of g@ rb @ge patents who can’t argue his way out of a paper bag. He’s an ign 0r amus with a long history of being wrong about everything, and whining about being wrong.

            But you really seem to adore him. And gob knows you spend a lot of time in his sweatbox.

            1. 5.1.2.1.1.1

              Pointing out your obsess10n — and its inappropriateness — is not defending anyone.

              Stop obsess1ng.

  3. 4

    Off topic, but the CAFC held for the patentee against a §101 challenge this morning in Cellspin v. Fitbit. I want to note that the panel on this case was composed of judges Lourie, O’Malley, and Taranto (in other words, a GHW Bush appointee and two Obama appointees).

    1. 4.1

      Well, to be clear, they vacated a summary judgment holding (with attorney fees against the patentee) because (the panel felt) there were “factual allegations” that needed more airing out.

      In reality, the patentee here is completely full of g @ r b@ age and on remand what should happen is a finding of ineligibility and additional sanctions. It’s a very typical case where the patentee had a limited (non-) invention in a particular context but was “forced” to assert that it made a rather fundamental contribution to the manner in which computers communicate wirelessly with each other. Of course, if this latter “contribution” to the art was the invention, the question arises: how incredibly incompetent was their patent attorney and what dr u gs was he/she on when he/she wrote the ten paragraph claim that could have been written in two sentences?

      Anyway, the jokes pretty much write themselves at this stage. Now if you’ll excuse me, I have to feed my gamvatar.

      1. 4.1.1

        what should happen is a finding of ineligibility and additional sanctions.

        Your view on sanctions appears to be solely driven by your feelings.

        Did you bother to read the explanation (provided for judicial efficiency) as to why the District Court was multiply wrong for awarding sanctions in the first instance?

        I “get” that you think that responding based on your feelings alone is perfectly “OK” for you (much like Trump), but such does NOT actually engender any type of actual cogent discussion of the law.

    2. 4.2

      This has more to do with evidence and is just a remand for evidence.

      O’Malley is actually pre-SV takeover of Obama. She is the only judge that wasn’t selected by SV.

      Taranto is at a level of Lemley with making up the law.

      1. 4.2.1

        And actually taking a quick look at this it was reversed and remanded because the DC said that patents do not have a presumption of patent eligibility.

        But nice try Greg. We can always count on you to support the anti-information processing patents people.

        1. 4.2.1.1

          because the DC said that patents do not have a presumption of patent eligibility.

          It was nice to see the CAFC sl@p down the District Court for its attempt to hold that the presence and level of presumption did not apply (somehow) to ALL of the law that an application is evaluated against in order to reach the state of being a granted (thus full legal) property right.

  4. 3

    Everyone agrees there is no copyright in the statutes themselves. The issue is the annotations and judicial summaries.

    The annotations and summaries themselves are not binding, they’re just proposed guidance that does not have the force of law. The Georgia statutes themselves make that clear, as the lower court opinion acknowledged. The lower court opinion danced around that issue by arguing that they still bear a legislative stamp of approval, and they mixed a number of concepts about public authorship that do not apply here. The annotations here were actually written by Lexis/Matthew Bender, under contract from the Georgia code revision commission, according to the lower court opinion.

    I don’t see why it makes any difference that the annotations were adopted by state employees, it shouldn’t qualify as a state edict because it isn’t one, it’s just opinion guidance that does not have legal effect. The annotations and summaries are entitled to copyright protection, and I suspect that’s what the Supreme Court will say. The lower court view is way too broad and would basically extinguish copyright in almost any state created work. Textbooks, instructional videos, standardized tests, software, and tons of other things produced by the state that are arguably relevant to some legal requirement (like licensure, vocational training or other regulation), would not be copyrighted under this broad view.

    The better way to have addressed this issue is under the doctrine of fair use, which presupposes that the work is entitled to copyright but would nevertheless allow copying of portions for education, research, etc. I think you could provably make a pretty decent fair use defense here given the policy issues involved.

    1. 3.1

      Textbooks, instructional videos, standardized tests, software, and tons of other things produced by the state that are arguably relevant to some legal requirement (like licensure, vocational training or other regulation), would not be copyrighted under this broad view.

      That would be correct.

      And yet, would still fall under a view that the State is not an entity that may earn copyright. The “author” of the State is the people at large.

      I do “get” that this is a different take on the “binding law” aspect, but “binding law” is not the sum total of the reasoning behind the government edicts doctrine.

      IF the State wants to have “a” say on something, then that thing that the State want to say DOES have an impact on the populace (otherwise, what is the State even doing having, or wanting to have, a “say” in the first place?

      The function of the State saying anything is that what is said should be freely broadcast and disseminated. There are other mechanisms in place to control any “wrongful” application of what the State has to say.

      In other words, if we take your proposed avenue of Fair Use, the very nature of the State saying anything is necessarily imbued with that item always providing anyone and everyone with reason for copying. This would be a “defense” without particularity to ANY of the components of a Fair Use defense:

      Measuring Fair Use: The Four Factors

      •the purpose and character of your use.
      •the nature of the copyrighted work.
      •the amount and substantiality of the portion taken, and.
      •the effect of the use upon the potential market.

      The nature of the State itself (in addition to the second item in the list basically preempts any possible argument against Fair Use.

      Can you see an argument against Fair Use that even has a chance?

      1. 3.1.1

        There is no rule prohibiting states or local governments from holding copyrights in the creative works they create. You guys seem adamant that states should not be able to hold copyrights, but I suspect you do not share that same view with respect to patents?

        The reasons states should be able to hold copyrights is simple; if they cannot, basically everyone has to pay for every state-created work through their tax dollars. Should your tax dollars be used to create a specialized state vocational licensing exam that you would never, in a million years, ever need to take? Or should your tax dollars used to create the highly specialized software used to measure compliance with state emissions regulations? Is it really unfair to ask those people who are specifically interested in or benefit from the work to financially underwrite (at least in part) its creation by the state?

        The incentives to create creative works applies to states as anyone else. If states cannot defray the cost of creating works of authorship by charging those who benefit from them, and the public as a whole is unwilling to underwrite them through tax revenues, then those works simply wouldn’t exist. The incentives to create embodied in Article I, Section 8, of the Constitution are no different with respect to state governments. Refusing to extend copyright protection to states will have the same effect of refusing to extend it to private parties–a reduction in the incentive to create works, resulting in fewer works.

        This is why I think a categorical rule against copyright in state-created works is so utterly unjustified, and the “state edict” doctrine has never even approached that type of reach until this case. I think your concerns are properly addressed through “fair use,” not a categorical ban on state-owned copyrights that will cause far more damage.

    2. 3.2

      The lower court view is way too broad and would basically extinguish copyright in almost any state created work.

      Not sure about the scope of “almost any” here but let’s assume that it means “a lot.” So what?

      Textbooks

      So what?

      instructional videos

      So what?

      standardized tests

      LOL So what?

      software

      Yes. So what?

      tons of other things produced by the state that are arguably relevant to some legal requirement (like licensure, vocational training or other regulation), would not be copyrighted under this broad view.

      So what?

      Sounds like a good thing. You make it sound bad, like there’s some “repercussion” to a lack of copyright on “things .. that are … relevant to some legal requirement” and which are produced by the State. What’s the negative repercussion? And aren’t there better ways of addressing those repercussions, assuming they are real? Why treat a State’s legal requirements (or LOL State-contracted-for-interpretations of those requirementsand the tools for obtaining State licenses as if they were works of art?

      1. 3.2.1

        Egads, as Malcolm and I sound in the same camp.

        Worth noting the immediate difference in our means though: Malcolm merely asks “so what?” and I provide cogent discussion points so at to map out a clear reason WHY any such “so what?” may be legally at point.

        (Malcolm, you may want to take notes on a topic that we appear to be in agreement on)

        1. 3.2.1.1

          Egads, as Malcolm and I sound in the same camp.

          Best part is that we were typing our comments at the same time.

          Let us join hands and skate together on the icy rink that was once the fiery domain of The Horned One.

          1. 3.2.1.1.1

        2. 3.2.1.2

          “Egads, as Malcolm and I sound in the same camp.”

          Well just look at that; hell has in fact frozen over.

          Kumbaya anyone?

          link to youtube.com

    3. 3.3

      RE: “they’re just proposed guidance that does not have the force of law”

      Are then any commenters here from the state of Georgia who can speak to how exactly Georgia judges go about, in actual practice, conducting their role of statutory interpretation and the rules of construction they employ?

      I assume they naturally begin with the plain meaning of the words of a statute. But in cases of doubt, are Georgia courts permitted to go beyond that and consult “statutory histories” to determine legislative intent, and “guidance from the Georgia Code Revision Commission … and opinions by the State AG” to ascertain meaning in otherwise ambiguous language in the statutes, even though these are supposedly “just opinion guidance”?

      If so, it would seem disingenuous to say they don’t really have the force of law, even if they have secondary status as a source of law. We live in a common law nation and these “guidances” are government acts directly intended to influence statutory interpretation (otherwise, why bother having such official guidance), and as such they shouldn’t be subject to copyright.

  5. 2

    If something has the force of law, it should not be protected by copyright. It sounds like this qualifies.

    (But if a private party annotates a statute by, say, collecting relevant caselaw and making practice comments, then that likely can and should be protected.)

    1. 2.1

      I agree bored lawyer and even if it doesn’t have the force of law but is important to read to understand how the law is going to be interpreted then it should not be eligible for copyright. This applies to anything created by the state.

  6. 1

    the Supreme Court should hear the case in order to clarify and simplify the law of public access to public information.

    More than a bit revolting that we even got to this place. When “we, the people” create information, it’s for “we, the people” to disseminate, freely, absent some sort of national security concern.

    The government is just that: “we, the people.”

    This is just reason 50,389 why the patent system can’t be exploited to “privatize” information itself (e.g., medically relevant correlations, or any other correlations for that matter), directly or indirectly.

    1. 1.1

      You do realize that you are conflating two very different IP protection systems that protect different aspects of things, right?

      Are you forgetting:
      copyright: protects aspects of expression
      patent: protect aspects of utility

      1. 1.1.1

        patent: protect aspects of utility

        Does not include facts, or logic.

        Welcome to reality, Bildo. It’s going to be fun watching it pound your face in.

        1. 1.1.1.1

          Your internet tough guy shtick is noted.

          As is your fallacy that somehow software is “just logic.”

          But your point of “Does not include facts, or logic.” is immediately applicable as to such are ALSO not protected by copyright.

          Funny how you never seem to want to admit that YOUR view removes ALL IP protection from software. Funny how your conflation kind of glosses over that.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture