SCOTUS Overturns State Copyright on Legal Annotations; Code Commission to Discuss Impact on Publishing Contract

The Code Commission is meeting electronically next week Thursday to discuss, among other things, our contract with Thomson West to publish South Dakota Codified Law. They must preface that discussion with an “Update on Georgia v. Public.Resource.Org and the impact on South Dakota copyrights.”

While we’ve all been focused on coronavirus and the self-destructive idiot running America into third-world status, the United States Supreme Court issued a 5–4 ruling overturning Georgia’s claim to copyright its annotations to its state laws. Writing for the majority, Chief Justice John Roberts says that annotations—explanations of changes, cross-references, historical context, and case law relevant to each statute—produced by the Legislature, whether directly or, as in Georgia, South Dakota, and elsewhere, by private vendors commissioned by the Legislature or its authorized Code Commission, “fall within the government edicts doctrine and are not copyrightable.”

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 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. 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 capacity” 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 exposition and interpretation of the law” and must be “free for publication to all.”

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….

Moreover, just as the doctrine applies to “whatever work [judges] perform in their capacity as judges,” Banks, 128 U. S., at 253, it applies to whatever work legislators perform in their capacity as legislators. That of course includes final legislation, but it also includes explanatory and procedural 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 cannot 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 [Chief Justice John Roberts, majority opinion, Georgia v. Public Resource.Org Inc., United States Supreme Court, 2020.04.27].

Georgia tried to claim that putting its annotations behind a copyright paywall is no big deal since the annotations aren’t authoritative or binding, but Chief Justice Roberts knocks that contention down with a nice equity argument:

Georgia minimizes the OCGA annotations as non-binding and non-authoritative, but that description undersells their practical significance. Imagine a Georgia citizen interested 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), criminalizing 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 unconstitutional 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 legislature 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) [Roberts, 2020.04.27].

Roberts says the court could leave the annotations behind a copyright paywall and let journalists, researchers, and other interested citizens take their chances with fair-use exemptions, but he recognized (as I noted last year in a discussion of code copyright) that fair use is a risky legal gamble. Better, says Roberts, to clearly remove every work judges and legislators produce in the course of their official duties from copyright so that all citizens have equal access to a full understanding of their laws.

Attorney General Jason Ravnsborg signed South Dakota onto an amicus curiae brief with seven other states supporting Georgia and copyrighted annotations of state law. Ravnsborg and friends contended that, under copyright laws like South Dakota’s (see SDCL 2-16-8 and 2-16-8.1), third-party annotators like Thomson West make up the cost of writing up explanations of our laws by selling copies. Strike copyright, allow free dissemination of these valuable legal texts, and “The annotators would likely begin demanding payment for annotating state codes.” The very South Dakota argument that satisfying obligations to inform the public about their own laws costs too much evidently gained no purchase with the Court.

The brief Ravnsborg signed notes that 22 states, the District of Columbia, Puerto Rico, and the Virgin Islands all copyright their official annotated codes… or they used to, before Georgia v. Public.Resource.Org. When our Code Commission meets next week, they’ll have to discuss how to continue providing useful annotations that every South Dakotan can read and share without a copyright paywall.