by Dennis Crouch
It makes sense that the government cannot use Copyright to keep the law out of the hands of the general public. The Government Edicts Doctrine takes care of this for statutes and precedential judicial opinions. The question before the Supreme Court now asks how far that doctrine extends. In particular, in Georgia v. Public.Resource.Org Inc., the state of Georgia argues that the official annotations to its statutes can be protected by copyright. Thus, question presented (as simplified):
Is the Official Code of Georgia Annotated (OCGA) an edict of government?
Briefing in the case is ongoing, but I want to highlight the most interesting brief filed so far — the history-focused amicus filed by Charles Duan on behalf of R Street, Wikimedia, and Public Knowledge.
Duan writes in his introduction:
Twenty-five centuries of history reject the foundation of Petitioners’ case. In contending that it may assert federal copyright law against its citizens to block distribution of the OCGA, the State of Georgia contemplates a bright line between its uncopyrightable statutes and all other edicts of government that “lack the force of law.” No such line exists. On the contrary, sovereigns since antiquity have promulgated not only statutes but also proclamations, explanations, commentaries, and even annotations, all of which, even lacking “force of law,” carry great weight for the rule of law and the functioning of government. History reveals not a binary divide between statutes and all else, but a spectrum of edicts of government.
To fill this historical void in the record, this brief surveys nonbinding pronouncements, particularly attached to statutes or codes of law, across time and around the world, from Rome and China to England and America. This historical review—which traverses a Roman whistleblower, the Justinian Code, a dark side of Confucianism, English libertarianism, New York suppressing the press, and the Mayor of London being thrown in jail — reveals multiple important lessons that question the basis upon which Georgia’s argument stands.
R Street, et al. Amicus.