Peaches, peanuts and statutes oh my! Georgia v. Public. Resource

The United States Supreme Court [hereinafter ‘the Court’] recently held that annotations[1] to the official Georgia state statutes are not copyright eligible. As a result, Georgia, as well as other state government entities cannot prevent third persons from publishing government documents if these documents originated from a judge or a state legislature.[2]

This story began when Public.Resource.org [hereinafter ‘Public.Resource’] posted the official Georgia state statutes/code online to the public, along with code annotations. Georgia did not distribute the annotations to the public, although it did publish the official statutes without a fee. When Public.Resource publicly posted the annotations without Georgia’s permission, Georgia sued Public.Resource for infringement of the state’s copyright in the annotations. Public.Resource then sought a declaratory judgment that the entire Georgia official code, including the annotations, were not copyright eligible. The district court held that Georgia owned the copyright for the annotations because they were not enacted into law, and therefore Public.Resource had infringed this copyright. The Eleventh Circuit reversed and rejected the district court’s decision under the judicially created government edits doctrine.[3]

Before the Court, Georgia contended that under the government edits doctrine documents created by  government officials require force of law to be copyright ineligible.  However, in this case annotations to the official state statutes/code were written by private vendor LexisNexis Group under a work for hire agreement. Therefore, the annotations did not exhibit force of law, because they consisted largely of judicial decision summaries by a private vendor and not the judicial decisions themselves. Georgia further contended that under the Copyright Act the annotations comprise original works of authorship by LexisNexis Group, and therefore are copyright eligible. However, according to Public.Resource the correct question was whether the annotations were created by the state legislature and its commission in their capacities as government officials. Public.Resource also maintained that under the government edits doctrine, written works created by government officers during their duties are never copyright eligible.

The Court agreed with Public.Resource and affirmed the judgement of the Eleventh Circuit. The Court held that the correct inquiry under the government edits doctrine is whether the written work was created by a judge or legislator in the course of their government duties. The Court further held that its own precedent did not require that these written works exhibit force of law to be copyright ineligible.  Here a state commission comprised largely of legislators supervised the creation of the annotations. The state statutes, together with the commission’s annotations, are also prominently designated and otherwise referred to as Georgia’s official state code. Any other result would disadvantage citizens  whenever they need to know, for example, which published statutes are actually unconstitutional and unenforceable according to summarized judicial decisions.

©2020 Adrienne B. Naumann, Esq., all rights reserved. Ms. Naumann does not endorse or sponsor the advertisements at adriennebnaumann.wordpress.com.

[1] These annotations include summaries of judicial opinions construing corresponding statutory provisions, summaries of state attorney general opinions and related legal reference materials.

[2]  Georgia et al. v. Public.Resource.org, Inc., 590 U.S. ____ (2020).

[3] The Court created the government edits doctrine, in part by holding that judges could not assert copyright in work created in their capacity as judges. See Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 US. 617 (1888).

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