Judges: John G. Roberts
Filed: Apr. 27, 2020
Latest Update: Apr. 28, 2020
Summary: (Slip Opinion) OCTOBER TERM, 2019 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321 , 337. SUPREME COURT OF THE UNITED STATES Syllabus GEORGIA ET AL. v. PUBLIC.RESOURCE.ORG, INC.
Summary: (Slip Opinion) OCTOBER TERM, 2019 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321 , 337. SUPREME COURT OF THE UNITED STATES Syllabus GEORGIA ET AL. v. PUBLIC.RESOURCE.ORG, INC. C..
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(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GEORGIA ET AL. v. PUBLIC.RESOURCE.ORG, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–1150. Argued December 2, 2019—Decided April 27, 2020
The Copyright Act grants monopoly protection for “original works of au-
thorship.” 17 U.S. C. §102(a). Under the government edicts doctrine,
officials empowered to speak with the force of law cannot be the au-
thors of the works they create in the course of their official duties.
The State of Georgia has one official code—the Official Code of Geor-
gia Annotated (OCGA). That Code includes the text of every Georgia
statute currently in force, as well as a set of non-binding annotations
that appear beneath each statutory provision. The annotations typi-
cally include summaries of judicial opinions construing each provision,
summaries of pertinent opinions of the state attorney general, and a
list of related law review articles and other reference materials. The
OCGA is assembled by the Code Revision Commission, a state entity
composed mostly of legislators, funded through legislative branch ap-
propriations, and staffed by the Office of Legislative Counsel.
The annotations in the current OCGA were produced by Matthew
Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a
work-for-hire agreement with the Commission. Under the agreement,
Lexis drafts the annotations under the supervision of the Commission,
which specifies what the annotations must include in exacting detail.
The agreement also states that any copyright in the OCGA vests in the
State of Georgia, acting through the Commission.
Respondent Public.Resource.Org (PRO), a nonprofit dedicated to fa-
cilitating public access to government records and legal materials,
posted the OCGA online and distributed copies to various organiza-
tions and Georgia officials. After sending PRO several cease-and-de-
sist letters, the Commission sued PRO for infringing its copyright in
the OCGA annotations. PRO counterclaimed, seeking a declaratory
judgment that the entire OCGA, including the annotations, fell in the
2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Syllabus
public domain. The District Court sided with the Commission, holding
that the annotations were eligible for copyright protection because
they had not been enacted into law. The Eleventh Circuit reversed,
rejecting the Commission’s copyright assertion under the government
edicts doctrine.
Held: The OCGA annotations are ineligible for copyright protection.
Pp. 5–18.
(a) The government edicts doctrine developed from a trio of 19th-
century cases. In Wheaton v. Peters, 8 Pet. 591, the Court held that no
reporter can have a copyright in the Court’s opinions and that the Jus-
tices cannot confer such a right on any reporter. In Banks v. Manches-
ter,
128 U.S. 244, the Court held that judges could not assert copyright
in “whatever work they perform in their capacity as judges”—be it “the
opinion or decision, the statement of the case and the syllabus or the
head note.”
Id., at 253. Finally, in Callaghan v. Myers,
128 U.S. 617,
the Court reiterated that an official reporter cannot hold a copyright
interest in opinions created by judges. But, confronting an issue not
addressed in Wheaton or Banks, the Court upheld the reporter’s copy-
right interest in several explanatory materials that the reporter had
created himself because they came from an author who had no author-
ity to speak with the force of law.
The animating principle behind the government edicts doctrine is
that no one can own the law. The doctrine gives effect to that principle
in the copyright context through construction of the statutory term
“author.” For purposes of the Copyright Act, judges cannot be the “au-
thor[s]” of “whatever work they perform in their capacity” as lawmak-
ers. Banks, 128 U.S., at 253. Because legislators, like judges, have
the authority to make law, it follows that they, too, cannot be “au-
thors.” And, as with judges, the doctrine applies to whatever work
legislators perform in their capacity as legislators, including explana-
tory and procedural materials they create in the discharge of their leg-
islative duties. Pp. 5–9.
(b) Applying that framework, Georgia’s annotations are not copy-
rightable. First, the author of the annotations qualifies as a legislator.
Under the Copyright Act, the sole “author” of the annotations is the
Commission, 17 U.S. C. §201(b), which functions as an arm of the
Georgia Legislature in producing the annotations. Second, the Com-
mission creates the annotations in the discharge of its legislative du-
ties. Pp. 9–11.
(c) Georgia argues that excluding the OCGA annotations from copy-
right protection conflicts with the text of the Copyright Act. First, it
notes that §101 lists “annotations” among the kinds of works eligible
for copyright protection. That provision, however, refers only to “an-
notations . . . which . . . represent an original work of authorship.”
Cite as: 590 U. S. ____ (2020) 3
Syllabus
(Emphasis added.) Georgia’s annotations do not fit that description
because they are prepared by a legislative body that cannot be deemed
the “author” of the works it creates in its official capacity. Second,
Georgia draws a negative inference from the fact that the Act excludes
from copyright protection works prepared by Federal Government of-
ficials, without establishing a similar rule for State officials. §§101,
105. That rule, however, applies to all federal officials, regardless of
the nature and scope of their duties. It does not suggest an intent to
displace the much narrower government edicts doctrine with respect
to the States.
Moving on from the text, Georgia invokes what it views as the offi-
cial position of the Copyright Office, as reflected in the Compendium
of U. S. Copyright Office Practices. The Compendium, however, is a
non-binding administrative manual and is largely consistent with this
Court’s position. Georgia also appeals to copyright policy, but such
requests should be addressed to Congress, not the courts.
Georgia attempts to frame the government edicts doctrine to focus
exclusively on whether a particular work has the force of law. But that
understanding cannot be squared with precedent—especially Banks.
Moreover, Georgia’s conception of the doctrine as distinguishing be-
tween different categories of content with different effects has less of
a textual footing than the traditional formulation, which focuses on the
identity of the author. Georgia’s characterization of the OCGA anno-
tations as non-binding and non-authoritative undersells the practical
significance of the annotations to litigants and citizens. And its ap-
proach would logically permit States to hide all non-binding judicial
and legislative work product—including dissents and legislative his-
tory—behind a paywall. Pp. 11–18.
906 F.3d 1229, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SO-
TOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which ALITO, J., joined, and in which
BREYER, J., joined as to all but Part II–A and footnote 6. GINSBURG, J.,
filed a dissenting opinion, in which BREYER, J., joined.
Cite as: 590 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1150
_________________
GEORGIA, ET AL., PETITIONERS v.
PUBLIC.RESOURCE.ORG, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 27, 2020]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Copyright Act grants potent, decades-long monopoly
protection for “original works of authorship.” 17 U.S. C.
§102(a). The question in this case is whether that protec-
tion extends to the annotations contained in Georgia’s
official annotated code.
We hold that it does not. Over a century ago, we recog-
nized a limitation on copyright protection for certain
government work product, rooted in the Copyright Act’s
“authorship” requirement. Under what has been dubbed
the government edicts doctrine, officials empowered to
speak with the force of law cannot be the authors of—and
therefore cannot copyright—the works they create in the
course of their official duties.
We have previously applied that doctrine to hold that
non-binding, explanatory legal materials are not copyright-
able when created by judges who possess the authority to
make and interpret the law. See Banks v. Manchester,
128
U.S. 244 (1888). We now recognize that the same logic ap-
plies to non-binding, explanatory legal materials created by
2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
a legislative body vested with the authority to make law.
Because Georgia’s annotations are authored by an arm
of the legislature in the course of its legislative duties, the
government edicts doctrine puts them outside the reach of
copyright protection.
I
A
The State of Georgia has one official code—the “Official
Code of Georgia Annotated,” or OCGA. The first page of
each volume of the OCGA boasts the State’s official seal and
announces to readers that it is “Published Under Authority
of the State.”
The OCGA includes the text of every Georgia statute
currently in force, as well as various non-binding supple-
mentary materials. At issue in this case is a set of annota-
tions that appear beneath each statutory provision. The
annotations generally include summaries of judicial deci-
sions applying a given provision, summaries of any perti-
nent opinions of the state attorney general, and a list of re-
lated law review articles and similar reference materials.
In addition, the annotations often include editor’s notes
that provide information about the origins of the statutory
text, such as whether it derives from a particular judicial
decision or resembles an older provision that has been con-
strued by Georgia courts. See, e.g., OCGA §§51–1–1, 53–4–
2 (2019).
The OCGA is assembled by a state entity called the Code
Revision Commission. In 1977, the Georgia Legislature
established the Commission to recodify Georgia law for the
first time in decades. The Commission was (and remains)
tasked with consolidating disparate bills into a single Code
for reenactment by the legislature and contracting with a
third party to produce the annotations. A majority of the
Commission’s 15 members must be members of the Georgia
Cite as: 590 U. S. ____ (2020) 3
Opinion of the Court
Senate or House of Representatives. The Commission re-
ceives funding through appropriations “provided for the leg-
islative branch of state government.” OCGA §28–9–2(c)
(2018). And it is staffed by the Office of Legislative Coun-
sel, which is obligated by statute to provide services “for the
legislative branch of government.” §§28–4–3(c)(4), 28–9–4.
Under the Georgia Constitution, the Commission’s role in
compiling the statutory text and accompanying annotations
falls “within the sphere of legislative authority.” Harrison
Co. v. Code Revision Comm’n, 244 Ga. 325, 330,
260 S.E.
2d 30, 34 (1979).
Each year, the Commission submits its proposed statu-
tory text and accompanying annotations to the legislature
for approval. The legislature then votes to do three things:
(1) “enact[ ]” the “statutory portion of the codification of
Georgia laws”; (2) “merge[ ]” the statutory portion “with
[the] annotations”; and (3) “publish[ ]” the final merged
product “by authority of the state” as “the ‘Official Code
of Georgia Annotated.’ ” OCGA §1–1–1 (2019); see Code
Revision Comm’n v. Public.Resource.Org, Inc.,
906 F.3d
1229, 1245, 1255 (CA11 2018); Tr. of Oral Arg. 8.
The annotations in the current OCGA were prepared in
the first instance by Matthew Bender & Co., Inc., a division
of the LexisNexis Group, pursuant to a work-for-hire agree-
ment with the Commission. The agreement between Lexis
and the Commission states that any copyright in the OCGA
vests exclusively in “the State of Georgia, acting through
the Commission.” App. 567. Lexis and its army of research-
ers perform the lion’s share of the work in drafting the an-
notations, but the Commission supervises that work and
specifies what the annotations must include in exacting de-
tail.
See 906 F.3d, at 1243–1244; App. 269–278, 286–427
(Commission specifications). Under the agreement, Lexis
enjoys the exclusive right to publish, distribute, and sell the
OCGA. In exchange, Lexis has agreed to limit the price it
may charge for the OCGA and to make an unannotated
4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
version of the statutory text available to the public online
for free. A hard copy of the complete OCGA currently re-
tails for $412.00.
B
Public.Resource.Org (PRO) is a nonprofit organization
that aims to facilitate public access to government records
and legal materials. Without permission, PRO posted a dig-
ital version of the OCGA on various websites, where it could
be downloaded by the public without charge. PRO also
distributed copies of the OCGA to various organizations
and Georgia officials.
In response, the Commission sent PRO several cease-
and-desist letters asserting that PRO’s actions constituted
unlawful copyright infringement. When PRO refused to
halt its distribution activities, the Commission sued PRO
on behalf of the Georgia Legislature and the State of Geor-
gia for copyright infringement. The Commission limited its
assertion of copyright to the annotations described above; it
did not claim copyright in the statutory text or numbering.
PRO counterclaimed, seeking a declaratory judgment that
the entire OCGA, including the annotations, fell in the
public domain.
The District Court sided with the Commission. The
Court acknowledged that the annotations in the OCGA pre-
sented “an unusual case because most official codes are not
annotated and most annotated codes are not official.” Code
Revision Comm’n v. Public.Resource.Org, Inc., 244 F. Supp.
3d 1350, 1356 (ND Ga. 2017). But, ultimately, the Court
concluded that the annotations were eligible for copyright
protection because they were “not enacted into law” and
lacked “the force of law.”
Ibid. In light of that conclusion,
the Court granted partial summary judgment to the Com-
mission and entered a permanent injunction requiring PRO
to cease its distribution activities and to remove the digital
copies of the OCGA from the internet.
Cite as: 590 U. S. ____ (2020) 5
Opinion of the Court
The Eleventh Circuit reversed. 906 F.3d 1229. The
Court began by reviewing the three 19th-century cases in
which we articulated the government edicts doctrine. See
Wheaton v. Peters,
8 Pet. 591 (1834); Banks v. Manchester,
128 U.S. 244 (1888); Callaghan v. Myers,
128 U.S. 617
(1888). The Court understood those cases to establish a
“rule” based on an interpretation of the statutory term “au-
thor” that “works created by courts in the performance of
their official duties did not belong to the judges” but instead
fell “in the public
domain.” 906 F.3d, at 1239. In the
Court’s view, that rule “derive[s] from first principles about
the nature of law in our democracy.”
Ibid. In a democracy,
the Court reasoned, “the People” are “the constructive au-
thors” of the law, and judges and legislators are merely
“draftsmen . . . exercising delegated authority.”
Ibid. The
Court therefore deemed the “ultimate inquiry” to be
whether a work is “attributable to the constructive author-
ship of the People.”
Id., at 1242. The Court identified three
factors to guide that inquiry: “the identity of the public offi-
cial who created the work; the nature of the work; and the
process by which the work was produced.”
Id., at 1254. The
Court found that each of those factors cut in favor of treat-
ing the OCGA annotations as government edicts authored
by the People. It therefore rejected the Commission’s asser-
tion of copyright, vacated the injunction against PRO, and
directed that judgment be entered for PRO.
We granted certiorari. 588 U. S. ___ (2019).
II
We hold that the annotations in Georgia’s Official Code
are ineligible for copyright protection, though for reasons
distinct from those relied on by the Court of Appeals. A
careful examination of our government edicts precedents
reveals a straightforward rule based on the identity of the
author. Under the government edicts doctrine, judges—
and, we now confirm, legislators—may not be considered
6 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
the “authors” of the works they produce in the course of
their official duties as judges and legislators. 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.
A
We begin with precedent. The government edicts doc-
trine traces back to a trio of cases decided in the 19th cen-
tury. In this Court’s first copyright case, Wheaton v. Peters,
8 Pet. 591 (1834), the Court’s third Reporter of Decisions,
Wheaton, sued the fourth, Peters, unsuccessfully asserting
a copyright interest in the Justices’ opinions.
Id., at 617
(argument). In Wheaton’s view, the opinions “must have
belonged to some one” because “they were new, original,”
and much more “elaborate” than law or custom required.
Id., at 615. Wheaton argued that the Justices were the au-
thors and had assigned their ownership interests to him
through a tacit “gift.”
Id., at 614. The Court unanimously
rejected that argument, concluding that “no reporter has or
can have any copyright in the written opinions delivered by
this court” and that “the judges thereof cannot confer on
any reporter any such right.”
Id., at 668 (opinion).
That conclusion apparently seemed too obvious to adorn
with further explanation, but the Court provided one a half
century later in Banks v. Manchester,
128 U.S. 244 (1888).
That case concerned whether Wheaton’s state-court coun-
terpart, the official reporter of the Ohio Supreme Court,
held a copyright in the judges’ opinions and several non-
binding explanatory materials prepared by the judges.
Id.,
at 249–251. The Court concluded that he did not, explain-
ing that “the judge who, in his judicial capacity, prepares
the opinion or decision, the statement of the case and the
syllabus or head note” cannot “be regarded as their author
or their proprietor, in the sense of [the Copyright Act].”
Id.,
Cite as: 590 U. S. ____ (2020) 7
Opinion of the Court
at 253. Pursuant to “a judicial consensus” dating back to
Wheaton, judges could not assert copyright in “whatever
work they perform in their capacity as judges.” Banks, 128
U. S, at 253 (emphasis in original). Rather, “[t]he whole
work done by the judges constitutes the authentic exposi-
tion and interpretation of the law, which, binding every
citizen, is free for publication to all.” Ibid. (citing Nash v.
Lathrop,
142 Mass. 29,
6 N.E. 559 (1886)).
In a companion case decided later that Term, Callaghan
v. Myers,
128 U.S. 617 (1888), the Court identified an im-
portant limiting principle. As in Wheaton and Banks,
the Court rejected the claim that an official reporter held a
copyright interest in the judges’ opinions. But, resolving an
issue not addressed in Wheaton and Banks, the Court up-
held the reporter’s copyright interest in several explanatory
materials that the reporter had created himself: headnotes,
syllabi, tables of contents, and the like.
Callaghan, 128
U.S., at 645, 647. Although these works mirrored the
judge-made materials rejected in Banks, they came from an
author who had no authority to speak with the force of law.
Because the reporter was not a judge, he was free to “ob-
tain[ ] a copyright” for the materials that were “the result
of his [own] intellectual
labor.” 128 U.S., at 647.
These cases establish a straightforward rule: Because
judges are vested with the authority to make and interpret
the law, they cannot be the “author” of the works they pre-
pare “in the discharge of their judicial duties.”
Banks, 128
U.S., at 253. This rule applies both to binding works (such
as opinions) and to non-binding works (such as headnotes
and syllabi).
Ibid. It does not apply, however, to works cre-
ated by government officials (or private parties) who lack
the authority to make or interpret the law, such as court
reporters. Compare
ibid. with Callaghan, 128 U. S., at 647.
The animating principle behind this rule is that no one
can own the law. “Every citizen is presumed to know the
law,” and “it needs no argument to show . . . that all should
8 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
have free access” to its contents. Nash, 142 Mass., at 35, 6
N. E., at 560 (cited by
Banks, 128 U.S., at 253–254). Our
cases give effect to that principle in the copyright context
through construction of the statutory term “author.”
Id., at
253.1 Rather than attempting to catalog the materials
that constitute “the law,” the doctrine bars the officials
responsible for creating the law from being considered the
“author[s]” of “whatever work they perform in their capac-
ity” as lawmakers.
Ibid. (emphasis added). Because these
officials are generally empowered to make and interpret
law, their “whole work” is deemed part of the “authentic ex-
position and interpretation of the law” and must be “free for
publication to all.”
Ibid.
If judges, acting as judges, cannot be “authors” because of
their authority to make and interpret the law, it follows
that legislators, acting as legislators, cannot be either.
Courts have thus long understood the government edicts
doctrine to apply to legislative materials. See, e.g.,
Nash,
142 Mass., at 35, 6 N. E., at 560 (judicial opinions and stat-
utes stand “on substantially the same footing” for purposes
of the government edicts doctrine); Howell v. Miller,
91 F.
129, 130–131, 137–138 (CA6 1898) (Harlan, J., Circuit Jus-
tice, joined by then-Circuit Judge Taft) (analyzing statutes
and supplementary materials under Banks and Callaghan
and concluding that the materials were copyrightable be-
cause they were prepared by a private compiler).
Moreover, just as the doctrine applies to “whatever work
[judges] perform in their capacity as judges,” Banks, 128
——————
1 The Copyright Act of 1790 granted copyright protection to “the author
and authors” of qualifying works. Act of May 31, 1790, §1, 1 Stat. 124.
This author requirement appears in the current Copyright Act at
§102(a), which limits protection to “original works of authorship.”
17
U.S. C. §102(a) (emphasis added); see also §201(a) (copyright “vests ini-
tially in the author or authors of the work”).
Cite as: 590 U. S. ____ (2020) 9
Opinion of the Court
U. S., at 253, it applies to whatever work legislators per-
form in their capacity as legislators. That of course includes
final legislation, but it also includes explanatory and proce-
dural materials legislators create in the discharge of their
legislative duties. In the same way that judges cannot be
the authors of their headnotes and syllabi, legislators can-
not be the authors of (for example) their floor statements,
committee reports, and proposed bills. These materials are
part of the “whole work done by [legislators],” so they must
be “free for publication to all.” Ibid.
Under our precedents, therefore, copyright does not vest
in works that are (1) created by judges and legislators (2) in
the course of their judicial and legislative duties.
B
1
Applying that framework, Georgia’s annotations are not
copyrightable. The first step is to examine whether their
purported author qualifies as a legislator.
As we have explained, the annotations were prepared in
the first instance by a private company (Lexis) pursuant to
a work-for-hire agreement with Georgia’s Code Revision
Commission. The Copyright Act therefore deems the Com-
mission the sole “author” of the work. 17 U.S. C. §201(b).
Although Lexis expends considerable effort preparing the
annotations, for purposes of copyright that labor redounds
to the Commission as the statutory author. Georgia agrees
that the author is the Commission. Brief for Petitioners 25.
The Commission is not identical to the Georgia Legisla-
ture, but functions as an arm of it for the purpose of produc-
ing the annotations. The Commission is created by the leg-
islature, for the legislature, and consists largely of
legislators. The Commission receives funding and staff des-
ignated by law for the legislative branch. Significantly, the
annotations the Commission creates are approved by the
legislature before being “merged” with the statutory text
10 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
and published in the official code alongside that text at the
legislature’s direction. OCGA §1–1–1; see 906 F.3d, at
1245, 1255; Tr. of Oral Arg. 8.
If there were any doubt about the link between the Com-
mission and the legislature, the Georgia Supreme Court
has dispelled it by holding that, under the Georgia Consti-
tution, “the work of the Commission; i.e., selecting a pub-
lisher and contracting for and supervising the codification
of the laws enacted by the General Assembly, including
court interpretations thereof, is within the sphere of legisla-
tive authority.” Harrison
Co., 244 Ga., at 330,
260 S.E. 2d,
at 34 (emphasis added). That holding is not limited to the
Commission’s role in codifying the statutory text. The Com-
mission’s “legislative authority” specifically includes its
“codification of . . . court interpretations” of the State’s laws.
Ibid. Thus, as a matter of state law, the Commission wields
the legislature’s authority when it works with Lexis to pro-
duce the annotations. All of this shows that the Commis-
sion serves as an extension of the Georgia Legislature in
preparing and publishing the annotations. And it helps
explain why the Commission brought this suit asserting
copyright in the annotations “on behalf of and for the
benefit of ” the Georgia Legislature and the State of
Georgia. App. 20.2
2
The second step is to determine whether the Commission
creates the annotations in the “discharge” of its legislative
“duties.” Banks, 128 U.S., at 253. It does. Although the
annotations are not enacted into law through bicameralism
and presentment, the Commission’s preparation of the an-
——————
2 JUSTICE THOMAS does not dispute that the Commission is an exten-
sion of the legislature; he instead faults us for highlighting the multiple
features of the Commission that make clear that this is so. See post, at
16 (dissenting opinion).
Cite as: 590 U. S. ____ (2020) 11
Opinion of the Court
notations is under Georgia law an act of “legislative author-
ity,” Harrison Co., 244 Ga., at 330,
260 S.E. 2d, at 34, and
the annotations provide commentary and resources that the
legislature has deemed relevant to understanding its laws.
Georgia and JUSTICE GINSBURG emphasize that the anno-
tations do not purport to provide authoritative explanations
of the law and largely summarize other materials, such as
judicial decisions and law review articles. See post, at 3–4
(dissenting opinion). But that does not take them outside
the exercise of legislative duty by the Commission and leg-
islature. Just as we have held that the “statement of the
case and the syllabus or head note” prepared by judges fall
within the “work they perform in their capacity as judges,”
Banks, 128 U.S., at 253, so too annotations published by
legislators alongside the statutory text fall within the work
legislators perform in their capacity as legislators.
In light of the Commission’s role as an adjunct to the leg-
islature and the fact that the Commission authors the
annotations in the course of its legislative responsibilities,
the annotations in Georgia’s Official Code fall within the
government edicts doctrine and are not copyrightable.
III
Georgia resists this conclusion on several grounds. At the
outset, Georgia advances two arguments for why, in its
view, excluding the OCGA annotations from copyright
protection conflicts with the text of the Copyright Act. Both
are unavailing.
First, Georgia notes that §101 of the Act specifically lists
“annotations” among the kinds of works eligible for copy-
right protection. But that provision refers only to “annota-
tions . . . which . . . represent an original work of author-
ship.” 17 U.S. C. §101 (emphasis added). The whole point
of the government edicts doctrine is that judges and legis-
lators cannot serve as authors when they produce works in
their official capacity. While the reference to “annotations”
12 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
in §101 may help explain why supplemental, explanatory
materials are copyrightable when prepared by a private
party, or a non-lawmaking official like the reporter in Cal-
laghan, it does not speak to whether those same materials
are copyrightable when prepared by a judge or a legislator.
In the same way that judicial materials are ineligible for
protection even though they plainly qualify as “[l]iterary
works . . . expressed in words,” ibid., legislative materials
are ineligible for protection even if they happen to fit the
description of otherwise copyrightable “annotations.”
Second, Georgia draws a negative inference from the fact
that the Act excludes from copyright protection “work[s]
prepared by an officer or employee of the United States
Government as part of that person’s official duties” and
does not establish a similar rule for the States. §101; see
also §105. But the bar on copyright protection for federal
works sweeps much more broadly than the government
edicts doctrine does. That bar applies to works created by
all federal “officer[s] or employee[s],” without regard for the
nature of their position or scope of their authority. What-
ever policy reasons might justify the Federal Government’s
decision to forfeit copyright protection for its own proprie-
tary works, that federal rule does not suggest an intent to
displace the much narrower government edicts doctrine
with respect to the States. That doctrine does not apply to
non-lawmaking officials, leaving States free to assert copy-
right in the vast majority of expressive works they produce,
such as those created by their universities, libraries,
tourism offices, and so on.
More generally, Georgia suggests that we should resist
applying our government edicts precedents to the OCGA
annotations because our 19th-century forebears inter-
preted the statutory term author by reference to “public
policy”—an approach that Georgia believes is incongruous
with the “modern era” of statutory interpretation. Brief for
Petitioners 21 (internal quotation marks omitted). But we
Cite as: 590 U. S. ____ (2020) 13
Opinion of the Court
are particularly reluctant to disrupt precedents interpret-
ing language that Congress has since reenacted. As we
explained last Term in Helsinn Healthcare S. A. v. Teva
Pharmaceuticals USA, Inc., 586 U. S. ___ (2019), when
Congress “adopt[s] the language used in [an] earlier act,”
we presume that Congress “adopted also the construction
given by this Court to such language, and made it a part of
the enactment.” Id., at ___ (slip op., at 7) (quoting Shapiro
v. United States, 335 U.S. 1, 16 (1948)). A century of cases
have rooted the government edicts doctrine in the word “au-
thor,” and Congress has repeatedly reused that term with-
out abrogating the doctrine. The term now carries this
settled meaning, and “critics of our ruling can take their
objections across the street, [where] Congress can correct
any mistake it sees.” Kimble v. Marvel Entertainment,
LLC,
576 U.S. 446, 456 (2015).3
Moving on from the text, Georgia invokes what it views
as the official position of the Copyright Office, as reflected
in the Compendium of U. S. Copyright Office Practices
(Compendium). But, as Georgia concedes, the Compen-
dium is a non-binding administrative manual that at most
——————
3 JUSTICE THOMAS disputes the applicability of the Helsinn Healthcare
presumption because States have asserted copyright in statutory anno-
tations over the years notwithstanding our government edicts prece-
dents. Post, at 11–12. In JUSTICE THOMAS’s view, those assertions prove
that our precedents could not have provided clear enough guidance for
Congress to incorporate. But that inference from state behavior proves
too much. The same study cited by JUSTICE THOMAS to support a practice
of claiming copyright in non-binding annotations also reports that “many
states claim copyright interest in their primary law materials,” including
statutes and regulations. Dmitrieva, State Ownership of Copyrights in
Primary Law Materials, 23 Hastings Com. & Entertainment L. J. 81, 109
(2000) (emphasis added). JUSTICE THOMAS concedes that such assertions
are plainly foreclosed by our government edicts precedents. Post, at 4.
That interested parties have pursued ambitious readings of our prece-
dents does not mean those precedents are incapable of providing mean-
ingful guidance to us or to Congress.
14 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
merits deference under Skidmore v. Swift & Co., 323 U.S.
134 (1944). That means we must follow it only to the extent
it has the “power to persuade.”
Id., at 140. Because our
precedents answer the question before us, we find any com-
peting guidance in the Compendium unpersuasive.
In any event, the Compendium is largely consistent with
our decision. Drawing on Banks, it states that, “[a]s a mat-
ter of longstanding public policy, the U. S. Copyright Office
will not register a government edict that has been issued by
any state, local, or territorial government, including legis-
lative enactments, judicial decisions, administrative rul-
ings, public ordinances, or similar types of official legal ma-
terials.” Compendium §313.6(C)(2) (rev. 3d ed. 2017)
(emphasis added). And, under Banks, what counts as a
“similar” material depends on what kind of officer created
the material (i.e., a judge) and whether the officer created
it in the course of official (i.e., judicial) duties. See Compen-
dium §313.6(C)(2) (quoting
Banks, 128 U.S., at 253, for the
proposition that copyright cannot vest “in the products of
the labor done by judicial officers in the discharge of their
judicial duties”).
The Compendium goes on to observe that “the Office may
register annotations that summarize or comment upon
legal materials . . . unless the annotations themselves have
the force of law.” Compendium §313.6(C)(2). But that
broad statement—true of annotations created by officials
such as court reporters that lack the authority to make or
interpret the law—does not engage with the critical issue of
annotations created by judges or legislators in their official
capacities. Because the Compendium does not address that
question and otherwise echoes our government edicts prec-
edents, it is of little relevance here.
Georgia also appeals to the overall purpose of the Copy-
right Act to promote the creation and dissemination of
creative works. Georgia submits that, without copyright
protection, Georgia and many other States will be unable to
Cite as: 590 U. S. ____ (2020) 15
Opinion of the Court
induce private parties like Lexis to assist in preparing af-
fordable annotated codes for widespread distribution. That
appeal to copyright policy, however, is addressed to the
wrong forum. As Georgia acknowledges, “[I]t is generally
for Congress, not the courts, to decide how best to pursue
the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537
U.S. 186, 212 (2003). And that principle requires adher-
ence to precedent when, as here, we have construed the
statutory text and “tossed [the ball] into Congress’s court,
for acceptance or not as that branch elects.”
Kimble, 576
U.S., at 456.
Turning to our government edicts precedents, Georgia in-
sists that they can and should be read to focus exclusively
on whether a particular work has “the force of law.” Brief
for Petitioners 32 (capitalization deleted). JUSTICE THOMAS
appears to endorse the same view. See post, at 4. But that
framing has multiple flaws.
Most obviously, it cannot be squared with the reasoning
or results of our cases—especially Banks. Banks, following
Wheaton and the “judicial consensus” it inspired, denied
copyright protection to judicial opinions without excepting
concurrences and dissents that carry no legal
force. 128
U.S., at 253 (emphasis deleted). As every judge learns the
hard way, “comments in [a] dissenting opinion” about legal
principles and precedents “are just that: comments in a dis-
senting opinion.” Railroad Retirement Bd. v. Fritz,
449
U.S. 166, 177, n. 10 (1980). Yet such comments are covered
by the government edicts doctrine because they come from
an official with authority to make and interpret the law.
Indeed, Banks went even further and withheld copyright
protection from headnotes and syllabi produced by
judges.
128 U.S., at 253. Surely these supplementary materials do
not have the force of law, yet they are covered by the doc-
trine. The simplest explanation is the one Banks provided:
These non-binding works are not copyrightable because of
who creates them—judges acting in their judicial capacity.
16 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
See ibid.
The same goes for non-binding legislative materials pro-
duced by legislative bodies acting in a legislative capacity.
There is a broad array of such works ranging from floor
statements to proposed bills to committee reports. Under
the logic of Georgia’s “force of law” test, States would own
such materials and could charge the public for access to
them.
Furthermore, despite Georgia’s and JUSTICE THOMAS’s
purported concern for the text of the Copyright Act, their
conception of the government edicts doctrine has less of a
textual footing than the traditional formulation. The tex-
tual basis for the doctrine is the Act’s “authorship” require-
ment, which unsurprisingly focuses on—the author.
JUSTICE THOMAS urges us to dig deeper to “the root” of our
government edicts precedents. Post, at 5. But, in our view,
the text is the root. The Court long ago interpreted the
word “author” to exclude officials empowered to speak with
the force of law, and Congress has carried that meaning for-
ward in multiple iterations of the Copyright Act. This tex-
tual foundation explains why the doctrine distinguishes be-
tween some authors (who are empowered to speak with the
force of law) and others (who are not). Compare
Callaghan,
128 U.S., at 647, with
Banks, 128 U.S., at 253. But the
Act’s reference to “authorship” provides no basis for Geor-
gia’s rule distinguishing between different categories of
content with different effects.4
——————
4 Instead of accepting our predecessors’ textual reasoning at face value,
JUSTICE THOMAS conjures a trinity of alternative “origin[s] and justifica-
tion[s]” for the government edicts doctrine that the Court might have had
in mind. See post, at 5–7. Without committing to one or all of these
possibilities, JUSTICE THOMAS suggests that each would yield a rule that
requires federal courts to pick out the subset of judicial and legislative
materials that independently carry the force of law. But a Court moti-
vated by JUSTICE THOMAS’s three-fold concerns might just as easily have
read them as supporting a rule that prevents the officials responsible for
Cite as: 590 U. S. ____ (2020) 17
Opinion of the Court
Georgia minimizes the OCGA annotations as non-bind-
ing and non-authoritative, but that description undersells
their practical significance. Imagine a Georgia citizen in-
terested in learning his legal rights and duties. If he reads
the economy-class version of the Georgia Code available
online, he will see laws requiring political candidates to pay
hefty qualification fees (with no indigency exception), crim-
inalizing broad categories of consensual sexual conduct,
and exempting certain key evidence in criminal trials
from standard evidentiary limitations—with no hint
that important aspects of those laws have been held uncon-
stitutional by the Georgia Supreme Court. See OCGA
§§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at
www.legis.ga.gov). Meanwhile, first-class readers with
access to the annotations will be assured that these laws
are, in crucial respects, unenforceable relics that the legis-
lature has not bothered to narrow or repeal. See §§21–2–
131, 16–6–2, 16–6–18, 16–15–9 (available at https://store.
lexisnexis.com/products/official-code-of-georgia-annotated-
skuSKU6647 for $412.00).
If everything short of statutes and opinions were copy-
rightable, then States would be free to offer a whole range
of premium legal works for those who can afford the extra
benefit. 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.
There is no need to assume inventive or nefarious behav-
ior for these concerns to become a reality. Unlike other
forms of intellectual property, copyright protection is both
instant and automatic. It vests as soon as a work is cap-
tured in a tangible form, triggering a panoply of exclusive
——————
creating binding materials from qualifying as an “author.” Regardless,
it is more “[ ]consistent with the judicial role” to apply the reasoning and
results the Court voted on and committed to writing than to speculate
about what practical considerations our predecessors “may have had
. . . in mind,” what history “may [have] suggest[ed],” or what constitu-
tional concerns “may have animated” our government edicts precedents.
Ibid.
18 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Opinion of the Court
rights that can last over a century. 17 U.S. C. §§102, 106,
302. If Georgia were correct, then unless a State took the
affirmative step of transferring its copyrights to the public
domain, all of its judges’ and legislators’ non-binding legal
works would be copyrighted. And citizens, attorneys, non-
profits, and private research companies would have to cease
all copying, distribution, and display of those works or risk
severe and potentially criminal penalties. §§501–506.
Some affected parties might be willing to roll the dice with
a potential fair use defense. But that defense, designed to
accommodate First Amendment concerns, is notoriously
fact sensitive and often cannot be resolved without a trial.
Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 552, 560–561 (1985). The less bold among us
would have to think twice before using official legal works
that illuminate the law we are all presumed to know and
understand.
Thankfully, there is a clear path forward that avoids
these concerns—the one we are already on. Instead of ex-
amining whether given material carries “the force of law,”
we ask only whether the author of the work is a judge or a
legislator. If so, then whatever work that judge or legislator
produces in the course of his judicial or legislative duties is
not copyrightable. That is the framework our precedents
long ago established, and we adhere to those precedents
today.
* * *
For the foregoing reasons, we affirm the judgment of the
Eleventh Circuit.
It is so ordered.
Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1150
_________________
GEORGIA, ET AL., PETITIONERS v.
PUBLIC.RESOURCE.ORG, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 27, 2020]
JUSTICE THOMAS, with whom JUSTICE ALITO joins, and
with whom JUSTICE BREYER joins as to all but Part II–A
and footnote 6, dissenting.
According to the majority, this Court’s 19th-century “gov-
ernment edicts” precedents clearly stand for the proposition
that “judges and legislators cannot serve as authors [for
copyright purposes] when they produce works in their offi-
cial capacity.” Ante, at 11. And, after straining to conclude
that the Georgia Code Revision Commission (Commission)
is an arm of the Georgia Legislature, ante, at 9–10, the ma-
jority concludes that Georgia cannot hold a copyright in the
annotations that are included as part of the Official Code of
Georgia Annotated (OCGA). This ruling will likely come as
a shock to the 25 other jurisdictions—22 States, 2 Territo-
ries, and the District of Columbia—that rely on arrange-
ments similar to Georgia’s to produce annotated codes. See
Brief for State of Arkansas et al. as Amici Curiae 15, and
App. to id., at 1. Perhaps these jurisdictions all overlooked
this Court’s purportedly clear guidance. Or perhaps the
widespread use of these arrangements indicates that to-
day’s decision extends the government edicts doctrine to a
new context, rather than simply “confirm[ing]” what the
precedents have always held. See ante, at 5. Because I be-
lieve we should “leave to Congress the task of deciding
whether the Copyright Act needs an upgrade,” American
2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431, 463 (2014)
(Scalia, J., dissenting), I respectfully dissent.
I
Like the majority, I begin with the three 19th-century
precedents that the parties agree provide the foundation for
the government edicts doctrine.
In Wheaton v. Peters, 8 Pet. 591 (1834), the Court first
regarded it as self-evident that judicial opinions cannot be
copyrighted either by the judges who signed them or by a
reporter under whose auspices they are published. Con-
gress provided that, in return for a salary of $1,000, the Re-
porter of Decisions for this Court would prepare reports
consisting of judicial opinions and additional materials
summarizing the cases.
Id., at 614
, 617 (argument).
Wheaton, one of this Court’s earliest Reporters, argued that
he owned a copyright for the entirety of his reports. He con-
tended that he had “acquired the right to the opinions by
judges’ gift” once they became a part of his volume.
Id., at
614 (same). The Court ultimately remanded on the ques-
tion whether Wheaton had complied with the Copyright
Act’s procedural requirements.
Id., at 667–668. In doing
so, it observed in dicta that “the court [was] unanimously of
[the] opinion, that no reporter has or can have any copy-
right in the written opinions delivered by this court; and
that the judges thereof cannot confer on any reporter any
such right.”
Id., at 668.
Fifty-four years later, the Court returned to the same
subject, suggesting a doctrinal basis for the rule that judi-
cial opinions and certain closely related materials cannot be
copyrighted. In Banks v. Manchester,
128 U.S. 244 (1888),
the state-authorized publisher of the Ohio Supreme Court’s
decisions, Banks & Brothers, sued a competing publisher
for copyright infringement. The competing publisher repro-
duced portions from Banks’ reports, including Ohio Su-
preme Court decisions, statements of the cases, and syllabi,
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., dissenting
all of which were originally prepared by the opinion’s au-
thoring judge. This Court held that these materials were
not the proper subject of copyright. In reaching that con-
clusion, the Court grounded its analysis in its interpreta-
tion of the word “author” in the Copyright Act. It anchored
this interpretation in the “public policy” that “the judge
who, in his judicial capacity, prepares the opinion or deci-
sion [and other materials]” is not “regarded as their author
or their proprietor, in the sense of [the Copyright Act], so as
to be able to confer any title by assignment.” Banks, 128
U.S., at 253. The Court supported this conclusion by stat-
ing that “there has always been a judicial consensus . . .
that no copyright could[,] under the statutes passed by Con-
gress, be secured in the products of the labor done by judi-
cial officers in the discharge of their judicial duties.”
Ibid.
(emphasis deleted). And the Court observed that this rule
reflected the view that the “authentic exposition and inter-
pretation of the law . . . is free for publication to all,” which
in turn prevents a judge from qualifying as an author.
Ibid.
Importantly, the Court also briefly discussed whether the
State of Ohio could directly hold the copyright. In answer-
ing this question, the Court did not suggest that States
were categorically prohibited from holding copyrights as
authors or assignees. Instead, the Court simply noted that
the State fell outside the scope of the Act because it was not
a “resident” or “citizen of the United States,” as then re-
quired by statute, and because it did not meet other statu-
tory criteria.
Ibid. The Court felt it necessary to observe,
however, that “[w]hether the State could take out a copy-
right for itself, or could enjoy the benefit of one taken out
by an individual for it, as the assignee of a citizen of the
United States or a resident therein, who should be the au-
thor of a book, is a question not involved in the present case,
and we refrain from considering it.”
Ibid.
Finally, in Callaghan v. Myers,
128 U.S. 617 (1888), the
4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
Court addressed the limits of the government edicts doc-
trine. In that case, the Court settled another dispute be-
tween a publisher of court decisions and an alleged in-
fringer. The plaintiff purchased the proprietary rights to
the reports prepared by the Illinois Supreme Court’s re-
porter of decisions, Freeman, including the copyright to the
reports. Unlike in Banks, these reports also contained ma-
terial authored by Freeman. Callaghan, 128 U.S., at 645.
The alleged infringers copied the judicial decisions and
Freeman’s materials. In finding for the plaintiff, this Court
reiterated that “there can be no copyright in the opinions of
the judges, or in the work done by them in their official ca-
pacity as judges.”
Id., at 647 (citing Banks,
128 U.S. 244).
But the Court concluded that “no [similar] ground of public
policy” justified denying a state official a copyright
“cover[ing] the matter which is the result of his intellectual
labor.”
Callaghan, 128 U.S., at 647.
II
These precedents establish that judicial opinions cannot
be copyrighted. But they do not exclude from copyright pro-
tection notes that are prepared by an official court reporter
and published together with the reported opinions. There
is no apparent reason why the same logic would not apply
to statutes and regulations. Thus, it must follow from our
precedents that statutes and regulations cannot be copy-
righted, but accompanying notes lacking legal force can be.
See Howell v. Miller, 91 F. 129 (CA6 1898) (Harlan, J.) (ex-
plaining that, under Banks and Callaghan, annotations to
Michigan statutes could be copyrighted).
A
It is fair to say that the Court’s 19th-century decisions do
not provide any extended explanation of the basis for the
government edicts doctrine. The majority is nonetheless
Cite as: 590 U. S. ____ (2020) 5
THOMAS, J., dissenting
content to accept these precedents reflexively, without ex-
amining the origin or validity of the rule they announced.
For the majority, it is enough that the precedents estab-
lished a rule that “seemed too obvious to adorn with further
explanation.” Ante, at 6. But the contours of the rule were
far from clear, and to understand the scope of the doctrine,
we must explore its underlying rationale.
In my view, the majority’s uncritical extrapolation of
precedent is inconsistent with the judicial role. An unwill-
ingness to examine the root of a precedent has led to the
sprouting of many noxious weeds that distort the meaning
of the Constitution and statutes alike. Although we have
not been asked to revisit these precedents, it behooves us to
explore the origin of and justification for them, especially
when we are asked to apply their rule for the first time in
over 130 years.
The Court’s precedents suggest three possible grounds
supporting their conclusion. In Banks, the Court referred
to the meaning of the term “author” in copyright law. While
the Court did not develop this argument, it is conceivable
that the contemporaneous public meaning of the term “au-
thor” was narrower in the copyright context than in ordi-
nary speech. At the time this Court decided Banks, the
Copyright Act provided protection for books, maps, prints,
engravings, musical and dramatic compositions, photo-
graphs, and works of art.1 Judicial opinions differ markedly
from these works. Books, for instance, express the thoughts
of their authors. They typically have no power beyond the
ability of their words to influence readers, and they usually
are published at private expense. Judicial opinions, on the
other hand, do not simply express the thoughts of the
judges who write or endorse them. Instead, they elaborate
——————
1 See 1 Stat. 124; 2 Stat. 171; ch. 16, 4 Stat. 436; 11 Stat. 138–139; 13
Stat. 540; 16 Stat. 212.
6 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
and apply rules of law that, in turn, represent the imple-
mentation of the will of the people. Unlike other copyright-
able works of authorship, judicial opinions have binding le-
gal effect, and they are produced and issued at public
expense. Moreover, copyright law understands an author
to be one whose work will be encouraged by the grant of an
exclusive right. See Kirtsaeng v. John Wiley & Sons, Inc.,
579 U. S. ___, ___ (2016) (slip op., at 6). But judges, when
acting in an official capacity, do not fit that description. The
Court in Banks may have had these differences in mind
when it concluded that a judge fell outside the scope of the
term “author.” 128 U.S., at 253.
History may also suggest a narrower meaning of “author”
in the copyright context. In England, at least as far back as
1666, courts and commentators agreed “that the property
of all law books is in the king, because he pays the judges
who pronounce the law.” G. Curtis, Law of Copyright 130
(1847); see also Banks & Bros. v. West Publishing Co.,
27 F.
50, 57 (CC Minn. 1886) (citing English cases and treatises
and concluding that “English courts generally sustain the
crown’s proprietary rights in judicial opinions”). Black-
stone described this as a “prerogative copyrigh[t],” explain-
ing that “[t]he king, as the executive magistrate, has the
right of promulging to the people all acts of state and gov-
ernment. This gives him the exclusive privilege of printing,
at his own press, or that of his grantees, all acts of parlia-
ment, proclamations, and orders of council.” 2 W. Black-
stone, Commentaries on the Laws of England 410 (1766)
(emphasis deleted); see also
Wheaton, 8 Pet., at 659–660.
This history helps to explain the dearth of cases permitting
individuals to obtain copyrights in judicial opinions. But
under the Constitution, sovereignty lies with the people,
not a king. See The Federalist No. 22, p. 152 (C. Rossiter
ed. 1961);
id., No. 39, at 241. The English historical prac-
tice, when superimposed on the Constitution’s recognition
that sovereignty resides in the people, helps to explain the
Cite as: 590 U. S. ____ (2020) 7
THOMAS, J., dissenting
Court’s conclusion that the “authentic exposition and inter-
pretation of the law . . . is free for publication to all.” Banks,
128 U.S., at 253.
Finally, concerns of fair notice, often recognized by this
Court’s precedents as an important component of due
process, also may have animated the reasoning of these
19th-century cases. As one court put it, “[t]he decisions and
opinions of the justices are the authorized expositions and
interpretations of the laws, which are binding upon all the
citizens. . . . Every citizen is presumed to know the law thus
declared, and it needs no argument to show that justice re-
quires that all should have free access to the opinions.”
Nash v. Lathrop,
142 Mass. 29, 35,
6 N.E. 559, 560 (1886)
(cited in
Banks, 128 U.S., at 253–254); see also American
Soc. for Testing and Materials v. Public.Resource.Org, Inc.,
896 F.3d 437, 458–459 (CADC 2018) (Katsas, J., concur-
ring).
B
Allowing annotations to be copyrighted does not run afoul
of any of these possible justifications for the government
edicts doctrine. First, unlike judicial opinions and statutes,
these annotations do not even purport to embody the will of
the people because they are not law. The General Assembly
of Georgia has made abundantly clear through a variety of
provisions that the annotations do not create any binding
obligations. OCGA §1–1–7 states that “[a]ll historical cita-
tions, title and chapter analyses, and notes set out in this
Code are given for the purpose of convenient reference and
do not constitute part of the law.” Section 1–1–1 further
provides that “[t]he statutory portion of the codification of
Georgia laws . . . is enacted and shall have the effect of stat-
utes enacted by the General Assembly of Georgia. The stat-
utory portion of such codification shall be merged with an-
notations . . . and other materials . . . and shall be published
by authority of the state.” Thus, although the materials
8 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
“merge” prior to publication in the “official” code, the very
provision calling for that merger makes clear that the an-
notations serve as commentary, not law.
As additional evidence that the annotations do not repre-
sent the will of the people, the General Assembly does not
enact statutory annotations under its legislative power.
See Ga. Const., Art. III, §1, ¶1 (vesting the legislative power
in the General Assembly). To enact state law, Georgia em-
ploys a process of bicameralism and presentment similar to
that embodied in the United States Constitution. See Ga.
Const., Art. III, §5; Art. V, §2, ¶4. The annotations do not
go through this process, a fact that even the majority must
acknowledge. Ante, at 10; Ga. S. 52, Reg. Sess., §54(b)
(2019–2020) (“Annotations . . . except as otherwise provided
in the Code . . . are not enacted as statutes by the provisions
of this Act”).
Second, unlike judges and legislators, the creators of an-
notations are incentivized by the copyright laws to produce
a desirable product that will eventually earn them a profit.
And though the Commission may require Lexis to follow
strict guidelines, the independent synthesis, analysis, and
creative drafting behind the annotations makes them anal-
ogous to other copyrightable materials. See Brief for Mat-
thew Bender & Co., Inc., as Amicus Curiae 4–7.
Lastly, the annotations do not impede fair notice of the
laws. As just stated, the annotations do not carry the bind-
ing force of law. They simply summarize independent
sources of legal information and consolidate them in one
place. Thus, OCGA annotations serve a similar function to
other copyrighted research tools provided by private parties
such as the American Law Reports and Westlaw, which also
contain information of great “practical significance.” Ante,
at 17. Compare, e.g., OCGA §34–9–260 (annotation for Cho
Carwash Property, L. L. C. v. Everett, 326 Ga. App. 6,
755
S.E.2d 823 (2014)) with Ga. Code Ann. §34–9–260
(Westlaw’s annotation for the same).
Cite as: 590 U. S. ____ (2020) 9
THOMAS, J., dissenting
The majority resists this conclusion, suggesting that
without access to the annotations, readers of Georgia law
will be unable to fully understand the true meaning of Geor-
gia’s statutory provisions, such as provisions that have been
undermined or nullified by court decisions. Ante, at 17.
That is simply incorrect. As the majority tacitly concedes,
a person seeking information about changes in Georgia
statutory law can find that information by consulting the
original source for the change in the law’s status—the court
decisions themselves. See ante, at 17. The inability to ac-
cess the OCGA merely deprives a researcher of one specific
tool, not to the underlying factual or legal information sum-
marized in that tool. See also post, at 4 (GINSBURG, J., dis-
senting).2
C
The text of the Copyright Act supports my reading of the
——————
2 The majority contends that, rather than seeking to understand the
origins of our precedents, we should simply accept the text of the opinions
that the Justices “voted on and committed to writing.” Ante, at 16–17,
n. 4. But that begs the question: What does the text of the relevant opin-
ions tell us? The answer is not much. It is precisely this lack of explica-
tion that makes it necessary to explore the “judicial consensus” and pub-
lic policy referred to in Banks v. Manchester, 128 U.S. 244, 253 (1888).
Instead, the majority attempts to dissect the language of our prior opin-
ions in the same way it would interpret a statute, an approach we have
repeatedly cautioned against. See St. Mary’s Honor Center v. Hicks,
509
U.S. 502, 515 (1993); Reiter v. Sonotone Corp.,
442 U.S. 330, 341 (1979).
The proper approach is to “read general language in judicial opinions . . .
as referring in context to circumstances similar to the circumstances
then before the Court and not referring to quite different circumstances
that the Court was not then considering.” Illinois v. Lidster,
540 U.S.
419, 424 (2004); see also Cohens v. Virginia,
6 Wheat. 264, 399 (1821)
(Marshall, C. J., for the Court) (“[G]eneral expressions, in every opinion,
are to be taken in connection with the case in which those expressions
are used. If they go beyond the case, they may be respected, but ought
not to control the judgment in a subsequent suit when the very point is
presented for decision”).
10 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
precedents.3 Specifically, there are four indications in the
text of the Copyright Act that the OCGA annotations are
copyrightable. As an initial matter, the Act does not define
the word “author,” 17 U.S. C. §101, or make any reference
to the government edicts doctrine. Accordingly, the term
“author” itself does not shed any light on whether the doc-
trine covers statutory annotations. Second, while the Act
excludes from copyright protection “work[s] prepared by an
officer or employee of the United States Government as part
of that person’s official duties,” §101; see also §105, the Act
contains no similar prohibition against works of state gov-
ernments or works prepared at their behest. “Congress’ use
of explicit language in one provision cautions against infer-
ring the same limitation” elsewhere in the statute. State
Farm Fire & Casualty Co. v. United States ex rel. Rigsby,
580 U. S. ___, ___ (2016) (slip op., at 7) (internal quotation
marks omitted); Pacific Operators Offshore, LLP v. Val-
ladolid,
565 U.S. 207, 216 (2012). Third, the Act specifi-
cally notes that annotations are copyrightable derivative
works. §101. Here, again, the Act does not expressly ex-
clude from copyright protection annotations created either
by the State or at the State’s request. Fourth, the Act pro-
vides that an author may hold a copyright in “material con-
tributed” in a derivative work, “as distinguished from the
preexisting material employed in the work.” §103(b); see
also Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340, 359 (1991). These aspects of the statutory
text, taken together, further support the conclusion that the
OCGA annotations are copyrightable.
For all these reasons, I would conclude that, as with the
——————
3 As the majority explains, ante, at 9, the annotations were created as
part of a work-for-hire agreement between the Commission and Lexis.
See
17 U.S. C. §201(b). Because no party disputes the validity of the
contract, I express no opinion regarding whether the contract established
an employer/employee relationship or whether the Commission may be
considered a “person” under §201(b).
Cite as: 590 U. S. ____ (2020) 11
THOMAS, J., dissenting
privately created annotations in Callaghan, Georgia’s stat-
utory annotations at issue in this case are copyrightable.
III
The majority reads this Court’s precedents differently. In
its view, the Court in Banks held that judges are not “au-
thors” within the scope of the Copyright Act for “whatever
work they perform in their capacity as judges,” 128 U.S., at
253, so the same must be true for legislators, see ante, at 8–
9. Accordingly, works created by legislators in their legis-
lative capacity are not “original works of authorship,” §102,
and therefore cannot be copyrighted. This argument is
flawed in multiple respects.
A
Most notably, the majority’s textual analysis hinges on
accepting that its construction of “authorship,” i.e., all
works produced in a judge’s or legislator’s official capacity,
was so well established by our 19th-century precedents that
Congress incorporated it into the multiple revisions of the
Copyright Act. See ante, at 12–13. Such confidence is ques-
tionable, to say the least.
The majority’s understanding of the government edicts
doctrine seems to have been lost on dozens of States and
Territories, as well as the lower courts in this case. As al-
ready stated, the 25 jurisdictions with official annotated
codes apparently did not view this Court’s precedents as es-
tablishing the “official duties” definition of authorship. See
Brief for State of Arkansas et al. as Amici Curiae.4 And if
——————
4 According to one study published in 2000, approximately half of
States owned copyright in official state statutory compilations, court re-
ports, or administrative regulations. Dmitrieva, State Ownership of
Copyrights in Primary Law Materials, 23 Hastings Com. & Entertain-
ment L. J. 81, 83, 97–105 (2000). The majority attempts to undermine
this study by emphasizing that some of these States owned copyright in
primary law materials. Ante, at 13, n. 3. This misunderstands the point.
12 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
“our precedents answer the question” so clearly, ante, at 14,
one wonders why the Eleventh Circuit reached its conclu-
sion in such a roundabout fashion. Rather than following
the majority’s “straightforward” path, ante, at 5, the Elev-
enth Circuit looked to the “zone of indeterminacy at the
frontier between edicts that carry the force of law and
those that do not” to determine whether the annotations
were “sufficiently law-like” to be “constructively authored
by the People.” Code Revision Comm’n v. Public.Re-
source.Org, Inc., 906 F.3d 1229, 1233, 1242, 1243 (2018).
The District Court likewise does not appear to have viewed
the question as well settled. In a cursory analysis, it deter-
mined that the annotations were copyrightable based on
Callaghan. Code Revision Comm’n v. Public.Resource.Org,
Inc.,
244 F. Supp. 3d 1350, 1356 (ND Ga. 2017). It is risible
to presume that Congress had knowledge of and incorpo-
rated a “settled” meaning that eluded a multitude of States
and Territories, as well as at least four Article III judges.
Ante, at 13. Cf. Rimini Street, Inc. v. Oracle USA, Inc., 586
U. S. ___, ___–___ (2019) (slip op., at 9–10).
This presumption of congressional knowledge also pro-
vides the basis for the majority’s conclusion that the anno-
tations are not “original works of authorship.” See ante, at
11–12 (discussing §101). Stripped of the fiction that this
Court’s 19th-century precedents clearly demonstrated that
“authorship” encompassed all works performed as part of a
legislator’s duties, the majority’s textual argument fails.
——————
I do not claim that this evidence demonstrates that the States neces-
sarily interpreted the government edicts doctrine correctly. I merely
point out that these divergent practices seriously undercut the majority’s
claim that its interpretation of “authorship” was well settled and univer-
sally understood. On this score, the majority has no answer but to insin-
uate that the lawmakers of over half the Nation’s jurisdictions disre-
garded federal law and the Constitution to pursue their own agendas in
the face of supposedly clear precedent.
Cite as: 590 U. S. ____ (2020) 13
THOMAS, J., dissenting
The majority does not confront this criticism head on. In-
stead, it simply repeats, without any further elaboration,
its unsupported conclusion that “[t]he Court long ago inter-
preted the word ‘author’ to exclude officials empowered to
speak with the force of law, and Congress has carried that
meaning forward in multiple iterations of the Copyright
Act.” Ante, at 16. This wave of the “magic wand of ipse
dixit” does nothing to strengthen the majority’s argument,
and in fact only serves to underscore its weakness. United
States v. Yermian, 468 U.S. 63, 77 (1984) (Rehnquist, J.,
dissenting).5
B
In addition to its textual deficiencies, the majority’s un-
derstanding of this Court’s precedents fails to account for
the critical differences between the role that judicial opin-
ions play in expounding upon the law compared to that of
statutes. The majority finds it meaningful, for instance,
that Banks prohibited dissents and concurrences from be-
ing copyrighted, even though they carry no legal force.
Ante, at 15. At an elementary level, it is true that the judg-
ment is the only part of a judicial decision that has legal
effect. But it blinks reality to ignore that every word of a
judicial opinion—whether it is a majority, a concurrence, or
a dissent—expounds upon the law in ways that do not map
neatly on to the legislative function. Setting aside sum-
mary decisions, the reader of a judicial opinion will always
gain critical insight into the reasoning underlying a judicial
holding by reading all opinions in their entirety. Under-
——————
5 The majority’s approach is also hard to reconcile with the recognition
in Wheaton v. Peters, 8 Pet. 591 (1834), that annotations prepared by the
Reporter of Decisions could be copyrighted. Wheaton was paid a salary
of $1,000, and it is difficult to say whether this salary funded his work
on the opinions or his work on the annotations. See
id., at 614, 617 (ar-
gument).
14 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
standing the reasoning that animates the rule in turn pro-
vides pivotal insight into how the law will likely be applied
in future judicial opinions.6 Thus, deprived of access to ju-
dicial opinions, individuals cannot access the primary, and
therefore best, source of information for the meaning of the
law.7 And as true as that is today, access to these opinions
——————
6 For instance, this Court has not overruled Lemon v. Kurtzman, 403
U.S. 602 (1971), which pronounced a test for evaluating Establishment
Clause claims. But a reader would do well to carefully scrutinize the
various opinions in American Legion v. American Humanist Assn., 588
U. S. ___ (2019), to understand the markedly different way that this prec-
edent functions in our current jurisprudence compared to when it was
first decided. Moreover, sometimes a separate writing takes on canonical
status, like Justice Jackson’s concurrence regarding the executive power
in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 634–638
(1952) (opinion concurring in judgment and opinion of the Court); see
also Katz v. United States,
389 U.S. 347, 360–361 (1967) (Harlan, J.,
concurring) (reasonable expectation of privacy Fourth Amendment test).
Still other times, the reasoning in an opinion for less than a majority of
the Court provides the explicit basis for a later majority’s holding. See,
e.g., McKinney v. Arizona, 589 U. S. ___, ___ (2020) (slip op., at 5) (dis-
cussing Ring v. Arizona,
536 U.S. 584, 612 (2002) (Scalia J., concur-
ring)); Estelle v. Gamble,
429 U.S. 97, 102 (1976) (incorporating into the
majority the Eighth Amendment “evolving standards of decency” test
first announced in Trop v. Dulles,
356 U.S. 86, 101 (1958) (plurality opin-
ion)). Even “ ‘comments in [a] dissenting opinion,’ ” ante, at 15, some-
times reemerge as the foundational reasoning in a majority opinion. See,
e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019) (discussing
Nevada v. Hall,
440 U.S. 410, 433–439 (1979) (Rehnquist, J., dissent-
ing)); Lawrence v. Texas,
539 U.S. 558, 578 (2003) (“JUSTICE STEVENS’
[dissenting] analysis, in our view, should have been controlling in Bowers
[v. Hardwick,
478 U.S. 186 (1986),] and should control here”). These
examples, and myriad more, demonstrate that the majority treats the
role of separate judicial opinions in an overly simplistic fashion.
7 Banks also stated that judicially prepared syllabi and headnotes can-
not be
copyrighted. 128 U.S., at 253. The majority cites these materials
as further evidence of its broad rule, because the majority finds it beyond
cavil that “these supplementary materials do not have the force of law.”
Ante, at 15. The majority feels it appropriate to assume—without any
historical inquiry—that the words “syllabus” and “headnote” carried the
same meaning, or served the same function, in 1888 as they do now.
Cite as: 590 U. S. ____ (2020) 15
THOMAS, J., dissenting
was even more essential in the 19th century before the pro-
liferation of federal and state regulatory law fundamentally
altered the role that common-law judging played in ex-
pounding upon the law. See also post, at 2 (GINSBURG, J.,
dissenting).
These differences provide crucial context for Banks’ rea-
soning. Specifically, to ensure that judicial “exposition and
interpretation of the law” remains “free for publication to
all,” the word “author” must be read to encompass all judi-
cial duties. Banks, 128 U.S., at 253. But these differences
also demonstrate that the same rule does not a fortiori ap-
ply to all legislative duties.8
C
In addition to being flawed as a textual and precedential
——————
Without briefing on this issue, I am not willing to make that leap. See
Hixson v. Burson, 54 Ohio St. 470, 485,
43 N.E. 1000, 1003 (1896) (“re-
luctantly overrul[ing] the second syllabus” of a previous decision); Hol-
liday v. Brown,
34 Neb. 232, 234,
51 N.W. 839, 840 (1892) (“It is an un-
written rule of this court that members thereof are bound only by the
points as stated in the syllabus of each case”); see also Frazier v. State,
15 Ga. App. 365, 365–367,
83 S.E. 273, 273–274 (1914) (clarifying the
meaning of a court-written headnote and emphasizing that to under-
stand an opinion’s meaning, the headnote and opinion must be read to-
gether); United States v. Detroit Timber & Lumber Co.,
200 U.S. 321,
337 (1906) (acknowledging that some state statutes rendered headnotes
the work of the court carrying legal force).
8 Although legislative history is not at issue in this case, the majority
also contends that its rule is necessary to fend off the possibility that “[a]
State could monetize its entire suite of legislative history.” Ante, at 17.
Putting aside the jurisprudential debate over the use of such materials
in interpreting federal statutes, many States can, and have, specifically
authorized courts to consider legislative history when construing stat-
utes. See, e.g., Colo. Rev. Stat. §2–4–203(1)(c) (2019); Iowa Code §4.6(3)
(2019); Minn. Stat. §645.16(7) (2018); N. M. Stat. Ann. §12–2A–20(C)(2)
(2019); N. D. Cent. Code Ann. §1–02–39(3) (2019); Ohio Rev. Code Ann.
§1.49(C) (Lexis 2019); 1 Pa. Cons. Stat. §1921(c)(7) (2016). Given the
direct role that legislative history plays in the construction of statutes in
these States, it is hardly clear that such States could subject their legis-
lative histories to copyright.
16 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
THOMAS, J., dissenting
matter, the majority’s rule will prove difficult to administer.
According to one group of amici, nearly all jurisdictions
with annotated codes use private contractors that “almost
invariably prepare [annotations] under the supervision of
legislative-branch or judicial-branch officials, including
state legislators or state-court judges.” Brief for State of
Arkansas et al. as Amici Curiae 16–17. Under the major-
ity’s view, any one of these commissions or counsels could
potentially be reclassified as an “adjunct to the legislature.”
Ante, at 11. But the majority’s test for ascertaining the true
nature of these commissions raises far more questions than
it answers.
The majority lists a number of factors—including the
Commission’s membership and funding, how the annota-
tions become part of the OCGA, and descriptions of the
Commission from court cases—to support its conclusion
that the Commission is really part of the legislature. See
ante, at 9–10. But it does not specify whether these factors
are exhaustive or illustrative and, if the latter, what other
factors may be important. The majority also does not spec-
ify whether some factors weigh more heavily than others
when deciding whether to deem an oversight body a legis-
lative adjunct.
And even when the majority does list concrete factors,
pivotal guidance remains lacking. For example, the major-
ity finds it meaningful that 9 out of the Commission’s 15
members are legislators. Ante, at 9; see OCGA §28–9–2
(noting that the other members of the Commission include
the State’s Lieutenant Governor, a judge, a district attor-
ney, and three other state bar members). But how many
legislative members are needed for a commission to become
a legislative adjunct? The majority provides no answers to
any of these questions.
* * *
The majority’s rule will leave in the lurch the many
Cite as: 590 U. S. ____ (2020) 17
THOMAS, J., dissenting
States, private parties, and legal researchers who relied on
the previously bright-line rule. Perhaps, to the detriment
of all, many States will stop producing annotated codes
altogether. Were that to occur, the majority’s fear of an
“economy-class” version of the law will truly become a real-
ity. See ante, at 17. As Georgia explains, its contract ena-
bles the OCGA to be sold at a fraction of the cost of compet-
ing annotated codes. For example, Georgia asserts that
Lexis sold the OCGA for $404 in 2016, while West Publish-
ing’s competing annotated code sold for $2,570. Should
state annotated codes disappear, those without the means
to pay the competitor’s significantly higher price tag will
have a valuable research tool taken away from them.
Meanwhile, this Court, which is privileged to have access to
numerous research resources, will scarcely notice. These
negative practical ramifications are unfortunate enough
when they reflect the deliberative legislative choices that
we as judges are bound to respect. They are all the more
regrettable when they are the result of our own meddling.
Fortunately, as the majority and I agree, “ ‘critics of [to-
day’s] ruling can take their objections across the street,
[where] Congress can correct any mistake it sees.’ ” Ante, at
13 (quoting Kimble v. Marvel Entertainment, LLC, 576
U.S. 446, 456 (2015)).
We have “stressed . . . that it is generally for Congress,
not the courts, to decide how best to pursue the Copyright
Clause’s objectives,” Eldred v. Ashcroft,
537 U.S. 186, 212
(2003), because “it is Congress that has been assigned the
task of defining the scope of the limited monopoly that
should be granted to authors,” Sony Corp. of America v.
Universal City Studios, Inc.,
464 U.S. 417, 429 (1984). Be-
cause the majority has strayed from its proper role, I re-
spectfully dissent.
Cite as: 590 U. S. ____ (2020) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–1150
_________________
GEORGIA, ET AL., PETITIONERS v.
PUBLIC.RESOURCE.ORG, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[April 27, 2020]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
dissenting.
Beyond doubt, state laws are not copyrightable. Nor are
other materials created by state legislators in the course of
performing their lawmaking responsibilities, e.g., legisla-
tive committee reports, floor statements, unenacted bills.
Ante, at 8–9. Not all that legislators do, however, is ineligi-
ble for copyright protection; the government edicts doctrine
shields only “works that are (1) created by judges and leg-
islators (2) in the course of their judicial and legislative du-
ties.” Ante, at 9 (emphasis added). The core question this
case presents, as I see it: Are the annotations in the Official
Code of Georgia Annotated (OCGA) done in a legislative ca-
pacity? The answer, I am persuaded, should be no.
To explain why, I proceed from common ground. All
agree that headnotes and syllabi for judicial opinions—both
a kind of annotation—are copyrightable when created by a
reporter of decisions, Callaghan v. Myers, 128 U.S. 617,
645–650 (1888), but are not copyrightable when created by
judges, Banks v. Manchester,
128 U.S. 244, 253 (1888).
That is so because “[t]he whole work done by . . . judges,”
ibid., including dissenting and concurring opinions, ranks
as work performed in their judicial capacity. Judges do not
outsource their writings to “arm[s]” or “adjunct[s],” cf. ante,
at 9, 11, to be composed in their stead. Accordingly, the
2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
GINSBURG, J., dissenting
judicial opinion-drafting process in its entirety—including
the drafting of headnotes and syllabi, in jurisdictions where
that is done by judges—falls outside the reach of copyright
protection.
One might ask: If a judge’s annotations are not copyright-
able, why are those created by legislators? The answer lies
in the difference between the role of a judge and the role of
a legislator. “[T]o the judiciary” we assign “the duty of in-
terpreting and applying” the law, Massachusetts v. Mellon,
262 U.S. 447, 488 (1923), and sometimes making the appli-
cable law, see Friendly, In Praise of Erie—and of the New
Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See
also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is
emphatically the province and duty of the judicial depart-
ment to say what the law is.”). In contrast, the role of the
legislature encompasses the process of “making laws”—not
construing statutes after their enactment.
Mellon, 262
U.S., at 488; see Patchak v. Zinke, 583 U. S. ___, ___ (2018)
(plurality opinion) (slip op., at 5) (“[T]he legislative power is
the power to make law.”). The OCGA annotations, in my
appraisal, do not rank as part of the Georgia Legislature’s
lawmaking process for three reasons.
First, the annotations are not created contemporaneously
with the statutes to which they pertain; instead, the anno-
tations comment on statutes already enacted. See, e.g.,
App. 268–269 (text of enacted laws are transmitted to the
publisher for the addition of commentary);
id., at 403–404
(publisher adds new case notes on a rolling basis as courts
construe existing statutes).1 In short, annotating begins
——————
1 For example, OCGA §11–2A–213 was enacted, in its current form, in
1993. See 1993 Ga. Laws p. 633. The case notes contained in the OCGA
summarize judicial decisions construing the statute years later. See
§11–2A–213 (2002) (citing Griffith v. Medical Rental Supply of Albany,
Ga., Inc.,
244 Ga. App. 120,
534 S.E.2d 859 (2000); Bailey v. Tucker
Equip. Sales, Inc.,
236 Ga. App. 289,
510 S.E.2d 904 (1999)).
Cite as: 590 U. S. ____ (2020) 3
GINSBURG, J., dissenting
only after lawmaking ends. This sets the OCGA annota-
tions apart from uncopyrightable legislative materials like
committee reports, generated before a law’s enactment, and
tied tightly to the task of law-formulation.
Second, the OCGA annotations are descriptive rather
than prescriptive. Instead of stating the legislature’s per-
ception of what a law conveys, the annotations summarize
writings in which others express their views on a given stat-
ute. For example, the OCGA contains “case annotations”
for “[a]ll decisions of the Supreme Court of Georgia and the
Court of Appeals of Georgia and all decisions of the federal
courts in cases which arose in Georgia construing any por-
tion of the general statutory law of the state.” Id., at 403.
Per the Code Revision Commission’s instructions, each an-
notation should “accurately reflect the facts, holding, and
statutory construction” adopted by the court.
Id., at 404.
The annotations are neutrally cast; they do not opine on
whether the summarized case was correctly decided. See,
e.g., OCGA §17–7–50 (2013) (case annotation summarizing
facts and holdings of nine cases construing right to grand
jury hearing). This characteristic of the annotations distin-
guishes them from preenactment legislative materials that
touch or concern the correct interpretation of the legisla-
ture’s work.
Third, and of prime importance, the OCGA annotations
are “given for the purpose of convenient reference” by the
public, §1–1–7 (2019); they aim to inform the citizenry at
large, they do not address, particularly, those seated in leg-
islative chambers.2 Annotations are thus unlike, for exam-
ple, surveys, work commissioned by a legislature to aid in
——————
2 Suppose a committee of Georgia’s legislature, to inform the public,
instructs a staffer to write a guide titled “The Workways of the Georgia
Legislature.” The final text describing how the legislature operates is
circulated to members of the legislature and approved by a majority.
Contrary to the Court’s decision, I take it that such a work, which entails
no lawmaking, would be copyrightable.
4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
GINSBURG, J., dissenting
determining whether existing law should be amended.
The requirement that the statutory portions of the OCGA
“shall be merged with annotations,” §1–1–1, does not ren-
der the annotations anything other than explanatory, ref-
erential, or commentarial material. See Harrison Co. v.
Code Revision Comm’n, 244 Ga. 325, 331,
260 S.E. 2d 30,
35 (1979) (observation by the Supreme Court of Georgia
that “inclusion of annotations in [the] ‘official Code’ ” does
not “give the annotations any official weight”).3 Annota-
tions aid the legal researcher, and that aid is enhanced
when annotations are printed beneath or alongside the rel-
evant statutory text. But the placement of annotations in
the OCGA does not alter their auxiliary, nonlegislative
character.
* * *
Because summarizing judicial decisions and commentary
bearing on enacted statutes, in contrast to, for example,
drafting a committee report to accompany proposed legisla-
tion, is not done in a legislator’s law-shaping capacity, I
would hold the OCGA annotations copyrightable and there-
fore reverse the judgment of the Court of Appeals for the
Eleventh Circuit.
——————
3 That the Georgia Supreme Court described the Commission’s work as
“within the sphere of legislative authority” for state separation-of-powers
purposes, Harrison Co. v. Code Revision Comm’n, 244 Ga. 325, 330,
260
S.E. 2d 30, 34 (1979), does not resolve the federal Copyright Act question
before us. Cf. Yates v. United States,
574 U.S. 528, 537 (2015) (plurality
opinion) (“In law as in life, . . . the same words, placed in different con-
texts, sometimes mean different things.”); Cook, “Substance” and “Pro-
cedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) (“The ten-
dency to assume that a word which appears in two or more legal rules,
and so in connection with more than one purpose, has and should have
precisely the same scope in all of them, runs all through legal discus-
sions. It has all the tenacity of original sin and must constantly be
guarded against.”).
