
Supreme Court rules Georgia state law annotations not copyrightable [pdf] - erjiang
https://www.supremecourt.gov/opinions/19pdf/18-1150_7m58.pdf
======
supernova87a
Aside from the particulars of this case, I feel that the whole subject of
copyright is generally anti-competitive and rent-seeking, as codified in the
laws and time limits being inflated grossly to suit copyright holders in the
current era.

In my opinion, the argument that copyright extension incentivizes
authors/creators doesn't hold much water. I generally observe that there are
plenty of people willing to create and publish things with absolutely no hope
of profit or legal protection, and yet we bend over backwards to extend our
protections for the lucky few to the tune of the author's life + 70 years.
Even more if for hire. Tell me how that's in the public interest.

~~~
henryfjordan
IP laws are anti-competitive and rent-seeking, that's exactly the point. I
agree that the amount of time copyrights are good for is ridiculous, but I
still think it's better than not having them.

Imagine if J.K.Rowling wrote the first 3 Harry Potter books but didn't see a
dime because the second they got popular everyone with a printing press
started selling them royalty-free. Would she have finished the series? I got
to read all 7 books because J.K.Rowling was incentivized to write them by her
copyright.

~~~
jellicle
In the absence of copyright, one supposes that authors would get large up-
front fees for publishing, and that the fee for book 4, book 5 and so on for
JK Rowling would have been quite large, so I suppose she would have done just
fine. Think "Kickstarter, but for authors".

~~~
henryfjordan
The exact opposite would happen. No publisher would pay very much for rights
to a book that they cannot defend. Once that book hits the shelves, everyone
with a printing press will be copying it and selling it at cost, which will
undercut the first publisher because they need to include royalties in the
price. They certainly aren't going to print a million copies if they aren't
sure that they can sell them before someone starts copying them, so that would
naturally limit the size of launches, further driving down the value of a
manuscript.

There'd be a small first-mover advantage for being the first to print a book
and smaller operations not worth copying would still operate but J.K. Rowling
wouldn't be a billionaire.

~~~
zozbot234
In this case, the "rights" would not be those of a _book publisher_ but those
of a _patron /sponsor_. Being among the persons or corporate entities who e.g.
J.K. Rowling officially acknowledges as the "sponsors" of her work would
create a lot of clout, and with that a lot of very real value. Authors used to
be funded like that before the current copyright-based system became
predominant; it's not just a theoretical model.

~~~
megaman821
If the model is so good, what is preventing her from doing it now? There is
nothing in law saying you have to copyright your books, she could simply
release it under creative commons. What even qualifies you to know what is
best for authors and publishers? I love how so many people love volunteering
other peoples work for free or propose they jump through hoop in some
byzantine system to make money in a way that is acceptable to you.

~~~
icebraining
> I love how so many people love volunteering other peoples work for free or
> propose they jump through hoop in some byzantine system to make money in a
> way that is acceptable to you.

Yes, that's called democracy. Copyright must be a system that is acceptable to
most of us. In fact, copyright itself is more "byzantine" than just having the
State issue a stipend to anyone who produces a work of art - yet must we be OK
with such a solution?

Similarly, Joseph Galambos considered that people who coined words were due a
royalty when they were used. Is is unfair that we decide to use that work for
free instead?

------
ISL
Reading the opinions, it is a breath of fresh air to see one of the branches
of government relying upon fact and logical argument when discussing the
issues. This is how America is supposed to work.

~~~
matheusmoreira
You mean this is _not_ the norm? The cases I've read seemed quite reasonable.
They happened in the 90s and early 2000s though.

~~~
ulkesh
It may be the norm, but they also get some completely wrong: Citizens United,
for example.

~~~
bpodgursky
Whether you agree with or disagree with the Citizens United outcome,
describing the majority opinion as a straightforward "completely wrong" (when,
for example, the ACLU supported the verdict) indicates that you have not, in
fact, read any of the opinions or dissents, or done research about the
specific case that was being litigated.

~~~
Retric
They overturned an at the time recent Supreme Court verdict, which is
disruptive and counter to long standing precedent.

[https://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_...](https://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_of_Commerce)

~~~
rayiner
That doesn’t make a decision “wrong.” Lots of Supreme Court opinions are
wrong, and often obviously so. There is nothing wrong with overruling them.

 _Citizens United_ was an instance of the government sliding down a slippery
slope of precedent, which forced that precedent to be re-evaluated. The facts
(the government attempting to punish someone for distributing a political
movie about a political candidate) were so stark, they revealed the defects in
the precedent that may have been obscured previously. Moreover, the government
made clear at oral argument that there was no limiting principle to its
position—it acknowledged that, had the Court ruled the other way, nothing
stopped the government from book banning and other core free speech
violations.

~~~
Retric
Treating the court as a purely political entity which will flip flopping on
issues as the majority changes is counter to it’s design.

The the normal way this is maintained is to have narrow opinions on the
specific issue at hand. As such I can agree politically and still say the
ruling was unequivocally incorrect.

------
tzs
I had never heard of the "government edicts doctrine" before. Doing a little
research, I see why. It is a judicially created doctrine created by the
Supreme Court ~130 years ago, and this is the first time since then it has
been back to the Court.

What they decided way back then was that opinions of state court judges, like
opinions of Federal court judges, were not copyrightable. They also decided a
little later that annotations written by a state-employed annotator where the
state did not claim copyright on the annotator's work could be copyrighted by
the annotator.

What's new in this case compared to those cases that originally established
the government edicts doctrine is that it was a state that was trying to
assert copyright ownership of the annotations.

------
ineedasername
Laws, and their official (albeit non-binding) interpretations should not be
under copyright. This has struck me as an absurd assertion from the very
beginning: We're supposed to live in a nation of laws: how could that ever be
the case if the laws themselves are kept from the people?

~~~
segfaultbuserr
Another related issue is the copyright of technical standards incorporated
into law. A selection of technical standards, especially in the domain of
civil engineering, the standards on fire, electrical safety, energy
efficiency, and test design standards, are effectively laws. The
implementation of standards is explicitly required by the laws and there's no
alternative. Yet, these standards are often sold for-profit with copyright
restriction.

The EFF has some coverage on the issue [0][1].

[0] [https://www.eff.org/deeplinks/2019/11/eff-court-dont-let-
pri...](https://www.eff.org/deeplinks/2019/11/eff-court-dont-let-private-
organizations-control-access-law)

[1] [https://www.eff.org/press/releases/publicresourceorg-
prevail...](https://www.eff.org/press/releases/publicresourceorg-prevails-
free-speech-case-over-publishing-safety-standards)

~~~
danielisaac
I'm pretty eager to see where the ASTM case lands. I'm rooting for
Public.Resource.Org, but given that the DC Circuit remanded on fair use
(rather than copyrightability), the court will probably consider "amount and
substantiality" of the work reproduced relative to the original.

Public.Resource.Org photocopied and distributed the complete standards, cover
to cover, including ASTM's illustrations, logos, etc. But what aspect of the
manuals are the actual law? The technical measurements? From what I
understand, the Georgia annotations became law by reference in their entirety.
I don't think it's obvious here and I worry the court will rule against them
:/

Regardless, I love Public.Resource.Org's work and wish them the best.

~~~
segfaultbuserr
> _I don 't think it's obvious here and I worry the court will rule against
> them :/_

Yes, ultimately, the issue of technical standard is still untested in court
and remains a problem, it will take a prominent lawsuit before it's resolved.

> _But what aspect of the manuals are the actual law? The technical
> measurements?_

What Public.Resource.Org is doing is still a gray area, as you said. But I
guess it will not be a total loss - if there are legal challenges in the
future, they can publish a "censored" version of technical standard and defend
_that_.

------
amerine
It’s a welcome decision, but a very obvious one. Why did Georgia need to get
told that we, the people, own the laws?

~~~
imapluralistyep
As a lawyer, I can chime in here. Annotated statutes are special. They have
cross references to the cases which cite to the statutes. So if you're doing
research on a statute, the annotated version will have the letter of the law
word for word, then at the bottom it will have a little topical index (with
topics based on a part of the statute) under each topic will be the cases
citation which addressed that topic and a brief 1-2 line description of what
that case held. Generally, one of the publishers puts them together instead of
the state because it takes a lot of legwork and constant updating as new cases
interpret the statute. State laws and statutes are obviously not something you
can claim is your intellectual property but when they're annotated you are
actually reading a lot of stuff that isn't the just the statute.

~~~
stefan_
So why did Georgia feel the need to anoint this one the official annotated
code?

There is obviously a market for annotations, what stopped LexisNexis from just
doing the annotations on it's own initiative and selling the result itself?

What doomed their copyright is that they took state money to do it. Is it just
corruption and they figured they can charge both sides?

~~~
metaphor
> _There is obviously a market for annotations, what stopped LexisNexis from
> just doing the annotations on it 's own initiative and selling the result
> itself?_

Because the annotations angle is a red herring? In the Oyez transcript of oral
argument[1], Citron (for the respondent) made what I believe to be a relevant
remark disputing the petitioners' assertion that legal annotations would be
more expensive:

> _One is the actual useful versions of these codes are already plenty
> expensive. There 's a lot of discussion of the cost for a printed volume,
> but online access, which is what really most practitioners need to use, most
> people want to use, it's much more expensive than the $400. But, even
> accepting that the price is lower, I think that favors us, because what's
> going on there is an exchange of -- you're going to accept a price cap in
> exchange for the right to publish this officially, not for publishing the
> annotations, because Westlaw makes the annotations and is allowed to charge
> six times as much. Lexis isn't going to agree to do the annotation work in
> exchange for a price cap. What it wants for the price cap is the right to
> publish it officially._

As I understand the game being played prior to this decision (to be sure,
IANAL): although annotations undoubtedly have market value, the market (for
liability and other reasons) will nevertheless tend towards official sources,
and if you're the official publisher granted monopoly, who cares if the thing
being sold has a price cap ($?) when the subscription to the service that
provides access to said official thing won't ($$!)...and even if said
subscription cost was pragmatically constrained by market forces, the dragnet
scales from typical legal/government/academic players in the arena to
capturing a proverbial crap ton of otherwise unmarketable endusers on the
receiving end of the law ($$$!) while taking share away from direct
competitors ($$$$!!). Then make a free, _unofficial_ version available in an
attempt to pacify public dissent, but seed a mandatory disclaimer that it may
contain errors, so anyone with skin in the game who can pony up will be
compelled to do so.

[1]
[https://www.oyez.org/cases/2019/18-1150](https://www.oyez.org/cases/2019/18-1150)

------
lidHanteyk
There are interesting implications:

> First, the author of the annotations qualifies as a legislator.

Whoa! There is a massive amount of such code, and the folks writing it are
usually thought of as private lawyers, rather than public legislators. That's
a big deal, since the legislative process cannot be unconditionally private,
but has to be balanced to keep the public informed.

------
wsh
Does the Court’s holding that officials cannot be “authors” have any
implications for copyright in _privately written_ documents that have been
adopted as laws or regulations? Is _Veeck v. Southern Bldg. Code Congress Int
'l, Inc._, 293 F.3d 791 (5th Cir. 2002) still good law after today?

------
cure
Yay for public.resource.org. Carl Malamud does excellent work. You can donate
here:
[https://public.resource.org/about/donate.html](https://public.resource.org/about/donate.html)

------
adammunich
This is a huge win for civil liberty.

~~~
SamWhited
I'm not sure that it is. While I agree with the final outcome (seriously, why
would the states be able to copyright annotations?), it sounds like the court
ignored precedent and effectively made up a new law out of whole cloth to
reach this outcome.

We may be okay with this particular outcome, but would we feel the same way if
they did it for say Roe v. Wade (or some other more established opinion that
you like, depending on your political leanings)? I can't tell how serious this
is, but it sounds like another attempt to weaken stare decisis to me (again,
with the disclaimer that I am not a lawyer or legal expert of any kind and
maybe it's not nearly as bad as it sounds to me?)

~~~
NineStarPoint
I’m not so sure it ignores precedent, although it definitely extends it. I
think Ginsberg in her dissent says it well that the issue follows from related
precedent as such: “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.”
She goes on to say “In contrast, the role of the legislature encompasses the
process of ‘making laws’- not construing statutes after their enactment.” and
that, “The OCGA annotations, in my appraisal, do not rank as part of the
Georgia Legislature’s lawmaking process for three reasons.”

Those in the majority instead say “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.” They say this
extends to the annotations as “That of course includes final legislation, but
it also includes explanatory and proce- dural materials legislators create in
the discharge of their legislative duties.”

Whether the majority is correct in their decision or not, I think this is
definitely a reasonable clarification of past precedent. I think Justice
Thomas’s dissent is accurate when it says that this was not as clear cut a
confirmation as the Majority opinion’s writing makes it out to be, but I think
saying the decision is incongruous with previous precedent is also incorrect.

~~~
SamWhited
That may be fair; rereading Ginsburg's dissent though I'm still left wondering
if it makes sense to apply precedent in the way the majority did, or if they
were just making things up. It's quite possible that I'm just misunderstanding
what I'm reading too though.

~~~
NineStarPoint
It’s definitely fair to disagree with the majority here. The written dissents
also make sense, and as a 5:4 decision that wasn’t along party lines you’re in
good company with Supreme Court Justices who think it was an incorrect
decision.

------
sciurus
For background on this, see [https://arstechnica.com/tech-
policy/2019/12/justices-debate-...](https://arstechnica.com/tech-
policy/2019/12/justices-debate-allowing-state-law-to-be-hidden-behind-a-pay-
wall/)

------
metaphor
Surprised no cite to the oral argument on Oyez in current discussion:
[https://www.oyez.org/cases/2019/18-1150](https://www.oyez.org/cases/2019/18-1150)

------
olliej
this is a huge win - although it's interesting that Ginsburg and some other
"liberal" judges seem to side with Georgia in saying that the state should be
able to put the law of the land behind a pay wall.

~~~
tantalor
That dissent refers to "non-binding annotations" which are more like the
opinions of the law-makers, hence not part of their duties because they are
_not_ law.

~~~
pmiller2
Indeed, here is the very first paragraph of the dissenting opinion by Ginsburg
(joined by Breyer), beginning at p. 39 of the linked submission:

> 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._ , legislative committee reports, floor statements,
> unenacted bills. ( _Ante_ , at 8–9). Not all that legislators do, however,
> is ineligible for copyright protection; the government edicts doctrine
> shields only “works that are (1) created by judges and legislators (2) _in
> the course of their judicial and legislative duties_.” ( _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 capacity? The answer, I am persuaded, should be no.

~~~
huffmsa
Which is reasonable, but isn't this publication THE only codified publication
of Georgia's laws?

~~~
alistairSH
Correct.

Also, IANAL, but my understanding is the annotations are de facto required
reading for practitioners of law. They give all the background and history of
the law, without which, you would be at a severe disadvantage in the
courtroom.

~~~
throwaway17_17
I can’t quite agree that the annotations are ‘required reading’ for competent
representation of a litigant. Some state’s official printings of statute are
pretty bare (Louisiana in particular), but Georgia’s official documents are
quite thorough. The area of law, the type of arguments, etc are all facets of
what types of references make good arguments. I’m not aging the annotations
aren’t a good reference, but that some commenters seem to be placing a lot of
emphasis on them, instead of other sources.

~~~
alistairSH
Two related questions...

1\. In a state like LA, where annotations aren't included, would a lawyer
purchase an annotated version from a 3rd party? I assume the information
contained in the annotations is expected to be known, regardless of how it is
obtained.

2\. If a state elects to publish annotations as part of the only published
code, does that lend any extra weight to the annotations (effectively, by
putting them in the same book, and making that book the only copy of the state
code, the state has signaled "these notes are the way we intend you to
read/interpret/practice the law").

~~~
throwaway17_17
The answer to 1 is yes, although it is more common for the information
contained in ‘annotations’ to be accessed via Westlaw or Alexis online
subscriptions.

As to 2, I think the primary evidence for extra weight would be the number of
citations to the ‘official’ annotations in rendered opinions, but that it
would not be an official jurisprudential rule.

------
allears
The point is, judges make decisions based on these annotations. Therefore, if
you're a private citizen, or even an attorney, and you're dealing with the
court system, you must have access to the annotations or you're at a serious
disadvantage. For that reason, hiding them behind a subscription or paywall is
the equivalent of "secret" laws, or perhaps justice reserved for the well-to-
do.

------
jeffdavis
I haven't read the whole opinion yet, but it seems to be arguing that works
produced in the course of a legislative function are not authored, and
therefore not copyrightable. It doesn't seem to have much to do with the
content relating to the law or not.

And if so, what is the larger significance?

------
tantalor
[https://www.scotusblog.com/case-files/cases/georgia-v-
public...](https://www.scotusblog.com/case-files/cases/georgia-v-public-
resource-org-inc/)

