Copyright: When the Case Summaries are “Official” Works Authored by the State

by Dennis Crouch

Georgia v. Public.Resource.Org, Inc. (Supreme Court 2019) [Oral Argument Transcript]

Georgia’s counsel Joshua Johnson began his oral arguments by drawing the Supreme Court’s attention to its 19th Century case-law regarding the judicially-created government edicts doctrine:

MR. JOHNSON: The crux of the parties’ dispute is whether this Court’s 19th-century precedents support a decision different from the one that would be reached by applying standard interpretive principles to the Copyright Act’s plain text. They do not. . . . [W]hile
judicial opinions are not copyrightable, annotations added to opinions by a court’s official reporter are copyrightable works of authorship.

Here, we have “official” annotated code created by Lexis but guided by a mandated state committee. And, as a work-made-for-hire, the State is legally seen as the author for copyright purposes.  The crux of the copyright claim here is in the summaries of judicial decisions citing to the Georgia code.  Although those summaries do not have the force of law, they are the “official” annotations legally authored by the state.

JUSTICE SOTOMAYOR: Wheaton says anything prepared by the judge can’t be copyrighted.That includes headnotes, which are comparable, I think, to summaries that might be included in these annotations because it’s prepared by the judge.

Citing Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).  Justice Breyer seemed to think that the answer is simple, but provided a somewhat complex statement of the simplicity:

JUSTICE BREYER:  I thought this isn’t that difficult. If a judge does something in his judicial capacity, it is not copyrightable. If a legislator does something or a group of legislators in their legislative capacity, it is not copyrightable. I mean, who cares who the author is? There are public policy reasons that have existed forever in the law that you make those two things not copyrightable. The executive is harder to separate out, but you could do it. . . . If it’s not in their official capacity, if it’s simply a summary or is a comment upon something done in an official capacity, it is copyrightable, even though it be done by a sworn public servant, all right? There we are. . . .

I do, says the bride, you can’t copyright that. It’s being used as a performative. It’s not an expression.

Now take that idea and bring it down to the legislature and making laws. Where you have some words on pieces of paper and they are performing a function that is a legislative function or a judicial function, no, it’s not solely an expression; it’s performing a function, and we don’t allow it because to let a monopolist get ahold of that is dangerous.

All this is easy for activities of U.S. judges and legislators because U.S. Gov’t works are not copyrightable under the Statute.  In the state law perspective, we get into a difficult line drawing problem with Justice Breyer’s approach understanding when a judge or legislator is acting in “some other abstract capacity” (using the words of Justice Gorsuch).

In the end, Georgia’s attorney warned the judges not to “blow up” the current system that allows for copyright protection of the official code.  Reminds me of an attack on casebooks from a few years ago. WSJ Blog.

14 thoughts on “Copyright: When the Case Summaries are “Official” Works Authored by the State

  1. 3

    What are the terrible consequences of “blowing up” the silly status quo where official annotations to state laws are copyrightable?

    Were any identified?

  2. 2

    To reflect for a moment and see a mirror of something official and functional, but with “no force of law,” the MPEP comes to mind.

    Of course, just who is “bound” and to what level may the public expect that binding to hold is a function of administrative law (and something that Mr. Boundy has expounded upon several times).

    1. 2.1

      Great analogy.

      In my experience, the distinction between “official” and “having force of law” is in almost all cases illusional. Most govt. functionaries and judges will treat the former as authoritative, absent some compelling argument or exceptional circumstances.

      To use another example, several Circuits have model jury instructions. In my experience, judges follow them almost slavishly, and will not deviate from them, unless there is something truly bizarre or exceptional in the case.

      Can Model Jury Instructions adopted by a Circuit court be protected by copyright?

  3. 1

    Breyer “Where you have some words on pieces of paper and they are performing a >>function<< that is a legislative function or a judicial function, no, it’s not solely an expression;"

    Breyer has it right. There is function to these annotations. They should not be copyrightable because they are officially sanctioned by the government and have function.

    (I wish Breyer would learn to think about information processing. He seems to have a pretty good mind.)

    1. 1.1

      I cannot tell if you are holding up a sarcasm sign (given that that same Breyer won’t see that function (from ‘words’ or otherwise) are what are meant to be protected by patents.

      I will also note that the TYPE of protection is not necessarily mutually exclusive: an item may well have aspects that are protectable by patent and aspects that are protectable by copyright. The “is it functionable” question in the copyright context is a bit more nuanced than a mere binary question.

    2. 1.2

      I agree that it would be best if copyright does not attach to the annotations, and thus Breyer is trending in the right direction. His functional matter basis for negating copyright, however, is bizarre. Justice Sotomayor’s common-law basis for the non-copyrightable conclusion seems much sounder than Justice Breyer’s rather strained functional-matter basis.

      Justice Sotomayor’s track record for writing IP decisions is much more sound than Justice Breyer’s (think i4i compared to Mayo). I hope that she gets the authoring assignment here, and not him.

      1. 1.2.1

        Greg, did you ever figure out what Mayo was about? I don’t recall you ever articulating the facts of the case correctly, much less understanding the rationale behind the 9-0 holding which will never be overturned (unless the rules about claiming are completely upended).

      2. 1.2.2

        I believe that he was using the term “functional” in a lay sense to mean something like “serves a purpose”. I don’t believe that it was making the claim that “functional” words do something in way that would be relevant to patentable subject matter. By analogy, a patent’s specification is functional in so far as it defines a patent right. However, one would not claim that the specification itself is patentable subject-matter.


          Right, but the “do something” sense of the word is the one which properly excludes “functional” subject matter from copyright protection. In other words, Breyer’s musing bid fair to stretch a legal doctrine past where Congress meant it to go. That is why I am hoping (based on the arguments) that Justice Breyer is not tasked with writing for the majority. When the SCotUS gets the right result for the wrong reason, this begets much mischief in the lower courts.


            When the SCotUS gets the right result for the wrong reason, this begets much mischief in the lower courts.

            In other words, the Ends do not justify the Means.

    3. 1.3

      Breyer is no friend of intellectual property rights. His reference to whether something is “solely an expression” disturbs me. I hope he doesn’t believe that is the test for copyright protection.

      1. 1.3.1

        None of the Justices are “friends of intellectual property rights”, nor should they be.

        Heck, it’d be nice if more of them were “friends of women” or “friends of brown people” but I realize that’s a lot to ask for in 2020.


          nor should they be.

          I’d settle for them being agnostic (or neutral) as to intellectual property rights.

          As was once self-named though, the Court is known for: “The only valid patent is one that has not yet appeared before us.”

          Of course, Malcolm’s cognitive dissonance will scream full volume at the notion of the Court being even impartial…

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