Supreme Court Rules States Can’t Copyright Annotated Laws

The justices ruled 5-4 that under the so-called government edicts doctrine, lawmakers are not authors of the statutes they produce.

(Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — Extending a 19th century doctrine of copyright law to legal materials created by legislatures, the Supreme Court on Monday ruled annotated versions of state codes cannot be copyrighted. 

Georgia contracts with Matthew Bender & Co., which is part of LexisNexis, to publish and distribute an annotated version of its official state code. Under the agreement between the state and the company, LexisNexis bears all the costs of compiling the annotations and maintains an exclusive license to sell the annotated code, on which George holds a copyright.

A Georgia state commission receives a cut of the sales of the annotated code and the price of the complete set is capped at $404. LexisNexis publishes the full code without the annotations for free online and members of the public can access annotated versions for free at places like libraries and universities in the state. 

Public.Resource.Org, an open-government nonprofit that publishes official legal codes and other government documents online, bought 186 volumes of the annotated code and posted them online.

Georgia sent the nonprofit cease and desist letters, but Public Resource refused to take the code down so the state filed a federal copyright infringement lawsuit.

A federal judge in Georgia ruled the annotations could be copyrighted because they were merely commentary on the law and did not carry the force of law. 

But the 11th Circuit reversed, citing the so-called government edicts doctrine, which dates back to a line of cases from the mid-to-late 1800s that held judicial opinions could not receive copyright protection. 

Though federal copyright laws only foreclose copyrights on works of the United States government, the government edicts doctrine holds that documents that have the force of law cannot be copyrighted.

Led by Chief Justice John Roberts, a five-justice majority of the Supreme Court held the principle “that no one can own the law” applies equally to legal materials that judges create and legal materials that legislatures make.

“Under the government edicts doctrine, judges — and we now confirm, legislators — may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges and legislators,” Roberts wrote. “That rule applies regardless of whether a given material carries the force of law. And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.”

Because the Georgia commission operates as “an arm” of the state’s legislature exercising an authority lawmakers deemed necessary, the government edicts doctrine extends to the annotated code, the majority found.  

Roberts, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh, defended the holding as advancing a rule that is direct and easy to apply. 

To support its decision, the majority noted that even if the annotated code is, as Georgia argued, not binding, the legal commentary it contains is critical to understanding the state’s laws.

“If everything short of statutes and opinions were copyrightable, then states would be free to offer a whole range of premium legal works for those who can afford the extra benefit,” Roberts wrote. “A state could monetize its entire suite of legislative history. With today’s digital tools, states might even launch a subscription or pay-per-law service.” 

Carl Malamud, the president and founder of Public.Resource.Org, said the site is “very happy with the decision.”

“Now, let’s get back to work and make these laws easier to find and use,” Malamud said in an email.

Justice Clarence Thomas, joined by Justice Samuel Alito in full and Justice Stephen Breyer in part, took issue with the majority’s holding, saying it improperly expands the government edicts doctrine beyond its purpose and creates a rule that “will prove difficult to administer.”

According to the three dissenters, allowing copyrights for annotated codes does not hide binding law from people or pose any of the problems that justify the government edicts doctrine. Instead, the annotated codes serve a similar function as private legal research tools, Thomas wrote. 

In the view of Thomas and Alito, the majority undertook an “uncritical extrapolation” of the government edicts doctrine without fully considering the earlier holdings that created it. 

In a separate dissent, Justice Ruth Bader Ginsburg, joined by Breyer, wrote annotated codes should be copyrightable because they do not fall within the Georgia Legislature’s “lawmaking process” and only exist for convenience.

“Annotations aid the legal researcher and that aid is enhanced when annotations are printed beneath or alongside the relevant statutory text,” Ginsburg wrote. “But the placement of annotations in the [Official Code of Georgia Annotated] does not alter their auxiliary, nonlegislative character.”

Eric Citron, an attorney with Goldstein & Russell who argued for Public.Resource.Org, praised the court’s decision.

“We’re very happy to see that the court endorsed our view that ‘no one can own the law’ and rejected the possibility that a full understanding of the law could be made available only to those who can afford to pay for ‘first-class’ access,” Citron said in an email.

Neither Vinson & Elkins attorney Joshua Johnson, who argued for Georgia at the court, nor Georgia Governor Brian Kemp’s office immediately returned a request for comment on the decision. 


Prior reporting:
Georgia Seeks to Block Web Publication of Laws
Justices to Decide if States Can Copyright Laws

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