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.