Copyright in State Government Works in the Information Age

by Dennis Crouch

On December 2, 2019, the Supreme Court is set to hear oral arguments in Georgia v. Public.Resource.org, Inc. 18-1150 on the question of whether the state of Georgia can obtain and protect a copyright on the “Official Code of Georgia Annotated.”  Or, is copyright protection prohibited by the government edicts doctrine as the 11th Circuit held.

Federal Statute provides that works by the U.S. Gov’t are not copyrightable. 17 U.S.C. 105.  However, that provision does not apply to state governments. Here, Georgia hired LexisNexis to annotate and then publish its code.  The contract included a work-made-for-hire agreement and so the state is legally the author and copyright holder (if copyright persists). 17 U.S.C. § 201(b).  Note here that Georgia is (no longer) claiming copyright in the statutes themselves, but is claiming that the annotations are protectable.

A leading case is Callaghan v. Myers, 128 U.S. 617 (1888) that allowed the official reporter to enforce copyright based upon materials added to state court decisions (head-notes, indices, arrangement of cases, and errors).

Even though a reporter may be a sworn public officer, appointed by the authority of the government which creates the court of which he is made the reporter, and even though he may be paid a fixed salary for his labors, yet, in the absence of any inhibition forbidding him to take a copyright for that which is the lawful subject of copyright in him, or reserving a copyright to the government as the assignee of his work, he is not deprived of the privilege of taking out a copyright which would otherwise exist.

Id.  The alleged infringer here argues, inter alia, that the “Official” gov’t sanctioned nature of the annotations distinguish this case from Callaghan.

Callaghan is the U.S. Supreme Court’s last entry into the government edicts doctrine until now. Since that case the copyright statute has been overhauled in several major ways, including creation of the work-made-for-hire doctrine (prior to that an employer was not seen as an “author”) as well as the aforementioned statutory prohibition on copyright where the U.S. Gov’t is the author.

Oral arguments are divided with Georgia splitting time with the U.S. Gov’t who also argues that copyright protects the annotated code.

16 thoughts on “Copyright in State Government Works in the Information Age

  1. 8

    Doesn’t you tell the book by the cover? The spine makes it clear as a bell (or maybe a peach):

    Official Code of Georgia
    ————————
    Annotated

    The “Official Code” and the “Annotations” have a line between, right there on the binding spine. (Now there’s this funny problem that apparently you can’t buy an “Official Code of Georgia” unannotated.) A reader, who does have to copy the statutory text, doesn’t have to copy the annotations. They seem separable to me.

    But that seems too fine a hair to split for the nine.

    To me it depends who did the annotating — someone in the Georgia judicial branch, or a Lexis employee in Ohio — and whether there’s any necessity in copying the annotations.

    David

    1. 8.1

      The “Official Code” and the “Annotations” have a line between, right there on the binding spine.

      This is a joke, right?

  2. 7

    God bless you, Prof. Crouch. I dare say that this is the only blog on the internet where the only SCotUS case under discussion is Georgia v. PublicResource.org and not NY Rifle & Pistol Club v. City of New York. What a breath of fresh air.

  3. 6

    The quoted text from that Supreme Court case is hilariously unpersuasive, conclusory cr-@p, written in the high-fallutin’ style of the times whose sole purpose was to gloss over the vapidity of the “reasoning.”

    1. 6.1

      If you only looked at the quoted text here, then you have deprived yourself of a real treat at looking at “ written in the high-fallutin’ style of the times

  4. 5

    When did Georgia drop its earlier (and ridiculously broader) copyright claim to the statutes themselves?

    One solution to this “problem” is to not use the copyrighted case cites. Sc-re-w Lexis. It’s a horrible company and nobody, including and especially the State, should pay them a dime for anything.

    1. 5.1

      > When did Georgia drop its earlier (and ridiculously broader)
      > copyright claim to the statutes themselves

      The premise behind this statement is false. The plaintiff in that case NEVER argued that the statutes themselves (separate from the annotations) were copyrighted. This was clear from the very first original complaint filed in the case, which in paragraph 14 flatly says that “Plaintiff does not assert copyright in the O.C.G.A. statutory text itself since the laws of Georgia are and should be free to the public.” (Complaint, Dkt. 1, Case No. 1:15-cv-02594-RWS, N.D. Ga., filed 07/21/2015). So the case always, and only, about the annotations. Dennis’ summary was wrong to the extent he suggested otherwise.

      >One solution to this “problem” is to not use the copyrighted case >cites

      Umm, that’s basically the remedy the plaintiff is seeking, allowing the defendant to only use the statutes and not the annotations.

      1. 5.1.1

        So the case always, and only, about the annotations. Dennis’ summary was wrong to the extent he suggested otherwise.

        I’m sure he’ll correct that soon, after he gets around to correcting all of his misleading statements about subject matter eligibility.

        LOL

        >”One solution to this “problem” is to not use the copyrighted case >cites” Umm, that’s basically the remedy the plaintiff is seeking

        And presumably, then, the courts in the State of Georgia do not require the use of any of that copyrighted material. Or it has been “officially” determined that the state-mandated use of the copyrighted material in, e.g., complaints/briefs submitted to those courts, is a fair use, without penalty.

  5. 4

    This should be an interesting one. I thought the annotations were copyrightable.

    1. 4.1

      Does seem, though, like there is an argument that the annotations are limited categories and maybe there is only one right way to annotate.

      Maybe a tie-in with the API.

      1. 4.1.1

        Beyond a “there is only one way,” there is also a significant “functionality” aspect.

        And separately, the 1888 case appears to mis-appropriate any copyright from attorney arguments (away from attorney, to a government reported).

        Lastly, I am wondering if the phrase in the code of “US Government” should be read as pertaining to “US Federal Government” or be read in the broader sense of Government related to the US as a Federal Body as well as any non-Federal government of US entities (and thus sweep in States and municipalities and the like). It seems a bit cribbed to insert a distinction between Fed and State (and lower), given the purpose of the exclusion.

  6. 3

    … I do have to wonder what is the (intended) implication with including the notion of “in the Information Age” for this subject.

    That is, in the context of protecting expression, for copyright, the notion of “Information Age” does not seem to carry as much impact as may be provided in contrast to protecting utility, as in the patent sense.

    1. 3.1

      One practical difference for copyright law “in the Information Age” is that multi-volume legal texts like this are now far more often sold in digital form – much less costly to modify, “print” and distribute. [That should also make it easier and cheaper for another company to copy and sell the statutes without the annotations?]
      [Is there now a potential market for large area fake lawbook bookshelves to decorate law offices in their traditional manner to impress clients?]

      1. 3.1.1

        Thanks Paul.

        I would note though that pretty much ALL “printed items” (and most anything that has “fixed in a tangible medium” that includes “electronic copies” — and that includes the traditional heavy weights of Copyright (film and music) — are very much impacted with that SAME “easier and cheaper” for “modify, “print” and distribute.”

        Your point is a worthy note as to how ALL items of electronic goods may well be a “game changer” in relation to Copyright.

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