The State of Georgia claims a copyright in its official annotated code. The annotations are editorial content, including references and commentary on each statutory section, that are adopted each year by the Georgia legislature together with the state’s statutes. Public.Resource.Org, a non-profit organization with a mission of improving public access to government records, purchased the 2013 printed version of the code, and then scanned and uploaded the volumes to its website. Georgia sued Public.Resource.Org for copyright infringement. Public.Resource.Org maintained that Georgia’s copyright is unenforceable because the official annotated code is the law, which cannot be copyrighted. The federal trial court found in favor of Georgia, but the court of appeals reversed. Georgia petitioned the U.S. Supreme Court for review, which was granted.
The Official Code of Georgia Annotated is an annotated compilation of Georgia statutes that has been published annually since 1982. The statutory text in the OCGA is the one and only official published version of Georgia’s laws. Twenty-two other U.S. states, two territories, and the District of Columbia also claim copyrights in the annotations of their official annotated codes.
Georgia’s annotations consist of research references, such as commentaries, case notations, and editor’s notes. The code states that the annotations themselves do not have the force of law, but the annotations are adopted by the Georgia legislature as part of the official code.
The annotations are prepared by Matthew Bender & Co., Inc., an operating division of the LexisNexis Group, (Lexis), under a work-for-hire agreement with the State of Georgia. Under the agreement, Lexis has the exclusive right to publish the official code, but Georgia holds the copyright in the annotations in its own name. The Georgia Code Revision Commission, established by the Georgia General Assembly in 1977, supervises Lexis’s editing of the annotations and the publication of the code. The Commission consists of various Georgia public officials, including leaders of the legislature, the governor, and the lieutenant governor. The Commission specifies what types of annotations should appear alongside the statutory text and provides detailed and specific directions as to how Lexis is to generate and arrange this content. The Commission also has final editorial control over the content of the annotations.
The publication agreement between Georgia and Lexis requires Lexis to create a free, unannotated, online version of the Code for use by the general public. The unannotated code, however, is not an authoritative source of state law, and citizens are warned to rely on the unannotated code “at their peril.”
Despite the copyright and the exclusive publishing rights granted to Lexis, Georgia makes the CD-ROM version of the official code available to the general public at over 60 facilities throughout Georgia. State agencies also have a right to print, distribute or sell to the public portions of the official code that they are responsible for administering.
Public.Resource.Org is a non-profit organization with a mission of improving public access to government records. In 2013, Public.Resource.Org purchased all 186 volumes of the print version of the OCGA and its supplements, scanned them, and uploaded them to its website to be freely accessible to the public. Public.Resource.Org also mailed digital copies of the official code to Georgia legislators, and distributed copies to other organizations and on other websites.
State laws, court decisions, as well as similar official documents pronouncing the law, are in the public domain and are not copyrightable. The Copyright Act withholds copyright protection for any work of the federal government, but is silent on the works on the states.
The Supreme Court last considered copyright protection for editorial elaborations on the law in the nineteenth century. In one case, Banks v. Manchester, a publishing firm sought to enforce a copyright in a compilation of Ohio judicial decisions, including headnotes and summaries prepared by the judges. The Court found that only authors could copyright a work, that the publisher was not the author, and that a judges, who generated the work as part of their official duties, could not hold a copyright against the public. The Could concluded that “[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute.”
Later the same year, the Court declined to invalidate the copyright of a state-employed reporter who wrote headnotes and annotations for the opinions of the Supreme Court of Illinois. In Callaghan v. Myers, the Supreme Court found the public policy rationale of Banks did not apply; “there is no ground of public policy on which a reporter who prepares a volume of law reports, of the character of those in this case, can… be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor.” As a result, since the state did not reserve the copyright to itself, the reporter’s copyright was valid. Two facts differentiated Callaghan from Banks: the reporter, who had been appointed by the Illinois Supreme Court, and not the judges, had written the material accompanying the opinion; and, second, the reporter, and not the State of Illinois, claimed to hold the copyright.
Federal appellate courts have differed on their extension of the government edicts doctrine. The Sixth Circuit held that state statutes are uncopyrightable. Yet, the Second Circuit declined to apply the rule to tax maps created by a county assessor’s office, and Ninth Circuit declined to apply it to a privately authored coding system that was incorporated into a government reimbursement scheme through publication in the Federal Register. The Fifth Circuit extended the rule to encompass regulatory materials, arguing that the law is “the public domain and thus not amenable to copyright,” and that cases like Wheaton and Banks evince a “broad understanding of what constitutes ‘the law;’” municipal building codes could not be copyrighted. Veeck argued: the “metaphorical concept of citizen authorship together with the need for citizens to have free access to the laws are the ultimate holding of Banks.”
The First Circuit held that a publisher of the Massachusetts building code could not assert a copyright because the model code was included in the official Massachusetts building code. The First Circuit examined precedent and proclaimed a fundamental principle: “citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.” Judges and legislators could not copyright their works because of a “metaphorical concept of citizen authorship,” which means that, once it adopts a text as law, the body politic becomes the author of the work in question, leaving the original drafter with no proprietary interest. This was true even where the original creator of the work was a private sector actor.
U.S. District Court for the District of Northern Georgia
After Public.Resource.Org refused to remove the official code from its website, the Commission sued. Public.Resource.Org acknowledged its widespread publication of the official code, but denied that the State of Georgia holds an enforceable copyright in the code. Public.Resource.Org also claimed that the publication was protected as fair use and sought a declaratory judgment that “the State of Georgia has no valid copyright in any portion of the OCGA because the OCGA is in the public domain.”
The district court agreed with the Commission. The court said that, because the annotations in the official code lack the force of law, they are not public domain material. The court also rejected Public.Resource.Org’s other challenges to the validity of Georgia’s copyright as well as its fair use defense.
U.S. Court of Appeals for the Eleventh Circuit
Public.Resource.Org appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit reversed the district court’s decision, finding that the official code is not copyrightable because the annotations are part of the law. Three factors motivated the conclusion that the annotations are law: First, their preparation is supervised by a commission that is “largely composed of officials from the legislative branch,” which has lawmaking authority, Georgia’s annotations “carry authoritative weight” because they are a part of Georgia’s official code, and the procedures of incorporating the annotations bore the hallmarks of bicameralism and presentment.
EPIC has long advocated for public access to information about government activities, including access to judicial and executive branch materials. These issues are directly implicated in Georgia’s copyright of the OCGA, which requires individuals and organizations to pay for the official version of Georgia’s state code.
EPIC has worked for almost thirty years to promote online access to judicial opinions. When the Supreme Court proposed to release opinions in machine-readable format by means of floppy disks, EPIC sought to “avoid the creation of new information age divisions between information rich and information poor” by ensuring public interest access to Court opinions in electronic format.
In testimony later that year before the House Committee on Administration, EPIC urged Congress to update the Depository Library Program to promote greater dissemination of electronic information.
Also in 1990, EPIC President Marc Rotenberg was the primary drafter of OMB Watch Working Group on Information’s Principles for Circular A-130, which stated: “Government information is obtained, compiled, and maintained at citizen expense. It is a public asset and the public has the right to make use of this information so as to promote public welfare.”
EPIC has also encouraged increased access to electronic court documents. In 2001 comments to the U.S. Courts, EPIC highlighted constitutional and common law rights to access the courts and court documents. EPIC recommended that court documents be accessible over the internet, and that they be available for free or at the lowest cost possible. EPIC reiterated these views in comments to Pennsylvania courts in 2005, and to Florida courts in 2006.
In 2015, EPIC called on federal agencies to make statutes, regulations, adjudications, and relevant court documents freely available on agency websites.
U.S. Supreme Court, No. 18-1150
- Petition for Writ of Certiorari (Mar. 1, 2019)
- Amicus Briefs in Support of Petition
- Amicus Brief of the Software & Information Industry Association (Apr. 4, 2019)
- Amicus Brief of Arkansas and other states (Apr. 4, 2019)
- Amicus Brief of Matthew Bender & Co., Inc. (Apr. 4, 2019)
- Opposition to Petition for Writ of Certiorari (May 10, 2019)
- Amicus Briefs in Support of Respondent
- Reply to Opposition to Writ of Certiorari (May 24, 2019)
- Brief of Petitioner the State of Georgia (Aug. 29, 2019)
- Amicus Briefs in Support of Petitioner
- Amicus Brief of the United States (Aug. 30, 2019)
- Amicus Brief of the Software & Information Industry Association (Aug. 30, 2019)
- Amicus Brief of Arkansas and other states (Aug. 30, 2019)
- Amicus Brief of the International Code Council and the American Gas Association (Aug. 30, 2019)
- Amicus Brief of Matthew Bender & Co (Aug. 30, 2019)
- Amicus Brief of the Copyright Alliance (Aug. 30, 2019)
- Amicus Briefs in Support of Neither Party
- Amicus Brief of National Association of Home Builders (Aug. 29, 2019)
- Amicus Brief of American Society for Testing and Materials and others (Aug. 30, 2019)
- Respondent Public.Resource.Org’s Brief (Oct. 9, 2019)
- Amicus Briefs in Support of Respondent
- Amicus Brief of EPIC and 35 Technical Experts and Legal Scholars (Oct. 16, 2019)
- Amicus Brief of R Street Institute, the Wikimedia Foundation, and Public Knowledge (Oct. 11, 2019)
- Amicus Brief of 36 Computational Law Scholars (Oct. 15, 2019)
- Amicus Brief of the Internet Association (Oct. 15, 2019)
- Amicus Brief of the Center for Democracy & Technology and CATO Institute (Oct. 16, 2019)
- Amicus Brief of Current and Former Government Officials (Oct. 16, 2019)
- Amicus Brief of the American Library Association and others (Oct. 16, 2019)
- Amicus Brief of Professors Shyamkrishna Balganesh and Peter S. Menell (Oct. 16, 2019)
- Amicus Brief of 39 Law Students, 24 Solo and Small-Firm Practitioners, and 38 Legal Educators (Oct. 16, 2019)
- Amicus Brief of Law Librarians and Law Library Associations (Oct. 16, 2019)
- Amicus Brief of Next-Generation Legal Research Platforms and Databases (Oct. 16, 2019)
- Amicus Brief of the Reporter’s Committee for Freedom of the Press and 25 Media Organizations (Oct. 16, 2019)
- Amicus Brief of the American Intellectual Property Association (Oct. 16, 2019)
- Amicus Brief of Law Professors Nina Mendelson, Alan Morrison, Anne Joseph O’Connell, and Peter Straus (Oct. 16, 2019)
- Amicus Brief of the ACLU and others (Oct. 16, 2019)
- Amicus Brief of the Tennessee Coalition for Open Government and the Human Rights Defense Center (Oct. 16, 2019)
- Amicus Brief of the Print Disability Advocates (Oct. 16, 2019)
- Amicus Brief of Brendan Keefe, in his official capacity as Chief Investigative Reporter for 11Alive Atlanta, and WXIA-TV (Oct. 16, 2019)
- Amicus Brief of the Caselaw Access Project (Oct. 16, 2019)
- Georgia’s Reply Brief (Nov. 8, 2019)
- Oral Argument (Dec. 2, 2019)
- Opinion (Apr. 27, 2020)
U.S. Court of Appeals for the Eleventh Circuit, No. 17-11589
- Appellant Public.Resource.Org’s Opening Brief (May 17, 2017)
- Amicus Briefs in Support of Appellant
- Amicus Brief of Public Knowledge and others (May 23, 2019)
- Amicus Brief of the ACLU and others (May 24, 2019)
- Amicus Brief of Next-Generation Legal Research Platforms (May 24, 2019)
- Appellee Georgia’s Brief (June 30, 2019)
- Appellant’s Reply Brief (July 14, 2017)
- Opinion (July 27, 2018)
U.S. District Court for the District of Northern Georgia, No. 1:15-cv-2594
- Opinion (Mar. 23, 2017)
- Whitney Kimball, Should You Be Allowed to Copyright a Law? We’re Going to Find Out, Gizmodo (Dec. 4, 2019)
- Timothy B. Lee, Justices debate allowing state law to be “hidden behind a pay wall”, ArsTechnica (Dec. 3, 2019)
- Jordan S. Rubin, Don’t ‘Blow Up’ State Copyright Schemes, Lawyer Tells SCOTUS, Bloomberg Law (Dec. 2, 2019)
- Elura Nanos, SCOTUS to Decide Whether Copyright Law Makes It Illegal to Copy Law, Law & Crime (Dec. 2, 2019)
- Dennis Crouch, Copyright: When the Case Summaries are “Official” Works Authored by the State, PatentlyO (Dec. 2, 2019)
- Bill Rankin, Who owns the law in Georgia?, Atlanta Journal-Constitution (Nov. 29, 2019)
- Mark Walsh, Open Access: SCOTUS will consider whether publishers can copyright annotated state codes, ABA Journal (Nov. 27, 2019)
- Jordan S. Rubin, High Court Copyright Clash Raises Law Access, Democracy Issues, Bloomberg Law (Nov. 26, 2019)
- Ronald Mann, Argument Preview: Justices to Consider Copyrightability of State Legislative Codes, SCOTUSblog (Nov. 26, 2019)
- Molly Davis, Supreme Court Should Stop Georgia From Charging Citizens $404 Per Year To Read Their Own Laws, The Federalist (Nov. 6, 2019)