Code Revision Commissioner v. Public.Resource.Org, Inc.

Citation: 906 F.3d 1229Docket: 17-11589

Court: Court of Appeals for the Eleventh Circuit; October 19, 2018; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The case before the Eleventh Circuit addresses whether the annotations in the Official Code of Georgia Annotated (OCGA), created by the Georgia General Assembly, can be copyrighted by the State of Georgia. The court emphasizes the importance of public access to legal materials and examines the nature of the OCGA annotations, which do not fit neatly into existing copyright categories. It establishes that copyright interests are typically held by the author of a work, with the general understanding that state codifications cannot be copyrighted because they are ultimately authored by the People. In contrast, private annotations can be copyrighted as original works. The court argues that the OCGA annotations are a unique blend of both types and should be viewed as an exercise of sovereign power, asserting that the People are the constructive authors of legislative codifications, thus making them public domain and uncopyrightable. The ruling reiterates that legislative acts and judicial opinions, as expressions of sovereign authority, are also public domain. The court's analysis is informed by principles evaluating the identity of the creators, the work's authority, and its creation process, in determining whether the OCGA annotations represent the sovereign will of the People.

A work created under sovereign authority, characterized by the official's delegated power, authoritative weight, and adherence to procedural channels of sovereign power, is deemed to have constructive authorship by the People and thus is uncopyrightable. The annotations in the Official Code of Georgia Annotated (OCGA) are deemed sufficiently law-like to be considered a sovereign work, as they are produced by the legislative authority of Georgia, hold authoritative weight in interpreting the state's laws, and follow the legislative process of bicameralism and presentment. Consequently, the ultimate authorship of these annotations lies with the People, making them public domain material. Since no copyright exists for the annotations, the court need not address arguments regarding originality or fair use. The OCGA, published annually since 1982, serves as the official compilation of Georgia statutes, with annotations that include historical lines, case notations, and other references, which are part of the official Code but do not hold the force of law. Georgia law stipulates that these annotations are for reference purposes and are not enacted as statutes. Initially, the annotations were prepared by Mathew Bender & Co., Inc., under contract with the State of Georgia.

Lexis is tasked with the ongoing publication and maintenance of the Georgia Code, covering all editorial, publication, and distribution costs, in exchange for exclusive publishing rights from Georgia. However, Georgia retains copyright over the annotations. The publication agreement outlines specific requirements for annotations and grants the Georgia Code Revision Commission (the 'Commission') supervisory and final editorial authority over the OCGA. Established in 1977, the Commission consists of various Georgia officials and is responsible for updating the OCGA post-recodification in 1982. 

Key stipulations of the agreement include: Lexis must provide a free, unannotated online version of the Code; the price of the OCGA is capped at $404, significantly lower than other commercial annotations; Lexis has exclusive rights to produce and sell various formats of the OCGA; and the Commission will receive royalties from CD-ROM and online sales but not from print volumes. The agreement asserts that the Code's contents are copyrighted in the name of the State of Georgia, excluding the statutory text.

Despite Lexis's exclusive rights, the State of Georgia makes the CD-ROM version available at over 60 facilities and allows state agencies to print and distribute portions of the OCGA. Public.Resource.Org (PRO), a non-profit committed to enhancing public access to legal materials, purchased, scanned, and uploaded the OCGA for free public access in 2013, including distribution to legislators and other organizations. The Commission has repeatedly demanded PRO cease this publication, claiming it infringes on Georgia's copyright; however, PRO contends that the OCGA cannot be copyrighted as it is law.

On July 21, 2015, the Georgia General Assembly and the State of Georgia filed a lawsuit against PRO in the United States District Court for the Northern District of Georgia, seeking injunctive relief for PRO's unauthorized copying and distribution of copyrighted annotations in the Official Code of Georgia Annotated (O.C.G.A.). PRO acknowledged its widespread publication of the O.C.G.A. but denied that the State holds an enforceable copyright, claiming fair use as a defense and counterclaiming for a declaratory judgment that the O.C.G.A. is in the public domain. The district court granted the Commission’s motion for partial summary judgment, concluding that the annotations do not constitute public domain material and rejecting PRO's challenges to Georgia's copyright validity and its fair use defense. The court issued a permanent injunction against PRO, prohibiting unauthorized use and requiring the removal of O.C.G.A. versions from its website and cessation of related fundraising activities. PRO appealed the decision. The appellate court reviews summary judgment de novo, considering evidence in favor of the nonmoving party and determining whether a genuine issue of material fact exists. To establish copyright infringement, the plaintiff must prove ownership of a valid copyright and that the defendant copied protected elements; Georgia's registered copyright in the O.C.G.A. annotations is not disputed, placing the burden on PRO to demonstrate the copyright's invalidity.

The Constitution empowers Congress to promote science and the arts by granting authors and inventors exclusive rights to their works for limited times, as stated in Article I, Section 8, Clause 8. Congress has enacted this authority through the Copyright Act, codified at 17 U.S.C. § 101 et seq., which protects original works of authorship fixed in any tangible medium. Central to copyright eligibility is the concept of "authorship," which determines possessory rights; initially, copyright vests in the author(s) of a work, regardless of registration with the Copyright Office. Copyright exists inherently in authorship, as affirmed by case law.

In cases involving government works, "authorship" is interpreted to mean "the People," categorizing such works as public domain and thus ineligible for copyright protection. The legal precedent for this interpretation is longstanding but ambiguously defined, with the Supreme Court last addressing it in 1888. Key cases include *Wheaton v. Peters* (1834), where the Court ruled that no copyright exists for judicial opinions, and *Banks v. Manchester* (1888), which reaffirmed the non-copyrightability of state court opinions, concluding that an Ohio statute attempting to assign copyright for judicial decisions was invalid. These cases illustrate the principle that governmental works are not subject to copyright protection.

Under existing copyright law at the time, only 'authors' could obtain copyright protection for their works. The Court ruled that the reporter who compiled judicial opinions did not qualify as an author since he did not create the original materials authored by the judges. Consequently, neither the judges nor the reporter could convey a valid copyright to the publishing firm involved in the lawsuit. The Court provided several reasons for its conclusion that judges are not considered authors of their judicial opinions. First, judges receive a fixed salary from the public treasury, eliminating any financial proprietary interest in their judicial outputs. The Court emphasized that its interpretation of the term 'author' also reflects public policy considerations, asserting that judicial work represents an authentic exposition of the law, which should be freely accessible to all citizens. This principle aligns with a previous Massachusetts ruling advocating for public access to judicial opinions. The Court's stance was reiterated in the subsequent case of Callaghan v. Myers, where a publisher claimed copyright on Illinois Supreme Court opinions generated by a state reporter. The defense argued that the reports were public property since they were created as part of the reporter's official duties, thus reinforcing the notion that government-generated works cannot be copyrighted.

The Court reaffirmed the principle from Banks that judges' opinions and their official work cannot be copyrighted. However, it upheld the validity of the copyright in the Illinois Reports, stating that the rationale from Banks does not apply to the reporter's work, which is the result of intellectual labor. The Court noted that the Illinois court reporter, a government-appointed public officer, maintained a copyright because there was no indication that the state claimed ownership of the reporter's work. The reporter's copyright claim was valid, distinguishing this case from Banks on two grounds: the reporter authored the accompanying material, and the copyright was held by the reporter rather than the state. Subsequent court interpretations have expanded the application of the rule, with some lower courts applying it to various legal and regulatory materials, while others have refrained from extending it in different contexts. Additionally, Congress has partially codified this rule, establishing that no copyright exists for works in the public domain or any U.S. government publications, a principle that remains in current copyright law.

The partial codification of the rule concerning copyright for federal government works does not alter the existing rule for state-created works, which remain uncopyrightable. The 1961 Register’s Report indicates that despite a congressional prohibition against federal copyright, state laws, municipal ordinances, and court decisions are still not protected by copyright. The foundational principle of this rule, as articulated in the Banks decision, is based on interpreting the term "author" within the context of the Copyright Act of 1790, asserting that works produced by government officials in their official capacities do not belong to them but to the public. This aligns with the concept of popular sovereignty, where the People, as the ultimate source of law, are seen as the true authors of legislative and judicial outputs. Consequently, any work they effectively produce is regarded as public domain, ensuring no valid copyright can be claimed. Historical references highlight the deep roots of this principle in American governance, emphasizing that the government operates with authority derived from the consent of the governed, as reflected in foundational documents and speeches by figures like James Madison and Abraham Lincoln. The idea that the government is a "government of the people, by the people, for the people" underscores the notion that any legal work is inherently public and accessible to all. This principle is recognized throughout American law and political philosophy, establishing that the sovereignty of the people is central to the nation's identity and legal framework.

Federal courts have established that government works are inherently public domain due to the principle of popular sovereignty, wherein the People are considered the authors and owners of the law. In the case of Banks Bros. v. W. Pub. Co., the court affirmed that each citizen, as a lawmaker, has the right to access the laws they contribute to creating, supporting the notion that citizens cannot be deprived of equal access to their shared ownership of the law. 

This foundational principle was echoed in Veeck, where the Fifth Circuit concluded that a municipal building code, once adopted, was uncopyrightable because legal materials are public domain and not subject to copyright. The court emphasized that lawmaking reflects the public will, with citizens being the ultimate authors of the law, which necessitates unrestricted access for the public for various purposes.

Similarly, the First Circuit, in Building Officials Code Administrators v. Code Technology, Inc., upheld that the incorporation of a model building code into the Massachusetts building code rendered it freely available for copying, reinforcing that judicial opinions and statutes are public domain. This principle extends to regulatory codes, confirming that the law is not subject to copyright restrictions.

The excerpt emphasizes that the authorship of legal works, such as statutes and judicial opinions, belongs to the public, as citizens are the true authors of the law. This principle arises from the democratic process, where the authority of the law is derived from public consent, not from the individual creators, including salaried public officials. As a result, judges and legislators cannot claim copyright over their creations because once a legal text is adopted, the public, as the body politic, becomes its author, leaving the original drafter without proprietary rights. The overarching inquiry is whether a work is attributable to the "constructive authorship of the People," particularly when created by agents exercising sovereign authority. The Banks rule establishes that such legal texts are in the public domain and not subject to copyright. The discussion also notes that there are nuances in distinguishing between legal edicts and those that do not carry the force of law, recognizing a "zone of indeterminacy" where some government works may resemble law without being legally binding. Ultimately, the classification of a work under the Banks rule hinges on its direct relation to the exercise of sovereign authority and public authorship.

The inquiry into whether a work is similar enough to the law to be attributable to the People is complicated by the Banks rule, especially when the material does not fit neatly into established legal categories. The law is characterized by certain attributes: it is authored by designated public officials, is inherently authoritative, and is produced through specific processes critical to its legal effect. These factors are essential in determining whether a work is law or sufficiently law-like to be governed by the Banks rule. 

The analysis reveals that the annotations in the Official Code of Georgia Annotated (OCGA), while lacking the force of law, are deeply integrated into Georgia’s legal framework and are therefore law-like. They are considered constructively authored by the People due to their creation process and their role in the legislative and judicial contexts. 

The Georgia General Assembly plays a crucial role in the creation of these annotations through the Code Revision Commission, an entity that operates under the Assembly's authority. While initially prepared by Lexis, the annotations are created under strict guidelines outlined in a contract with the Commission that details the materials to be included and the specific instructions for their preparation. This contract mandates Lexis to summarize relevant court decisions and includes precise instructions on the content of these summaries, ensuring their alignment with legislative intent and statutory interpretation. Consequently, the annotations are deemed uncopyrightable, akin to the statutes themselves.

The contract between the Commission and Lexis dictates specific guidelines for judicial summaries, instructing Lexis to avoid lengthy factual annotations that do not pertain directly to the relevant statutes. It outlines the required order of case annotations and mandates the inclusion of particular research references and legislative history, specifying the extent of such historical references. The Commission oversees Lexis’s work, ensuring that annotations are prepared under its direct supervision and that any new references or materials requested by the Commission are incorporated. The agreement grants the Commission ultimate editorial control over all materials in the Official Code of Georgia Annotated (OCGA), stating that in case of disputes, the Commission's decisions take precedence. Additionally, the Commission must review all updates, supplements, and replacement volumes prior to publication. This level of involvement indicates that the Commission functions effectively as an extension of the Georgia General Assembly, maintaining significant control over the creation of the OCGA annotations.

The Commission consists of fifteen members, including nine current members of the Georgia General Assembly and the Lieutenant Governor. Its funding is sourced from appropriations designated for the legislative branch, as noted in O.C.G.A. 28-9-2. The Office of Legislative Counsel serves as the Commission's staff, which is significant because this office provides advisory and legal services to the legislative branch, further highlighting the Commission's connection to the General Assembly (O.C.G.A. 28-4-3). The Georgia Supreme Court has classified the Commission's activities as legislative in nature (Harrison Co. v. Code Revision Comm'n, 244 Ga. 325 (1979)), reinforcing its status as an entity created by and acting on behalf of the General Assembly. The close relationship between the Commission and legislators allows the Commission to be viewed as an extension of the legislative body. Legislative immunity extends to both members and their aides when performing protected legislative acts (Gravel v. United States, 408 U.S. 606, 616-17; Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1192), indicating that the Commission, as an adjunct to the General Assembly, shares this immunity. Although not all members are legislators, the Commission remains fundamentally connected to the General Assembly, operating under its authority and direction, thus positioning the legislators as the principal influencers behind the annotations produced by the Commission.

The OCGA annotations require approval from both the Commission and the Georgia General Assembly before being officially codified as part of Georgia's laws. The General Assembly must vote to incorporate these annotations into the Official Code of Georgia Annotated (OCGA), which includes various supplementary materials such as captions and cross-references. The close involvement of the General Assembly in the creation of these annotations supports their classification as official government works, thereby subjecting them to the Banks rule on copyright. This rule indicates that government edicts cannot be copyrighted, but its application is more limited for state works compared to federal works, which are entirely uncopyrightable when created by federal employees in their official capacity. Consequently, certain works by state employees may still be copyrightable under the Banks rule. The Banks case emphasizes that judges, when performing their judicial duties, do not hold ownership over their judicial outputs, which are considered public property and thus free for publication.

The Banks decision highlights that judges, as state employees, create legal interpretations that uniquely bind all citizens, distinguishing their roles from typical government employees. Unlike Section 105, which broadly applies to all government workers, the Banks rule applies specifically to those with the authority to issue official legal interpretations. This distinction arises from different rationales: Section 105 aims to ensure public access to all government-produced works, fostering democratic discourse and an informed citizenry, while the Banks rule is rooted in the principle of popular sovereignty, focusing on works created by officials exercising sovereign power. Public policy supports access to legal edicts as it promotes citizen education and engagement, allowing individuals to reproduce laws for various purposes, including influencing legislation and community education.

The Supreme Court's interpretation of the term "author" in Banks is based on public policy considerations. Appellees argue that Georgia citizens have access to the Official Code of Georgia Annotated (OCGA) through over 60 libraries and a free LexisNexis webpage, suggesting public access is sufficient. However, this argument is refuted on the grounds that public ownership does not equate to copyrightability. The case of Callaghan illustrates that a state-paid court reporter, while acting in an official capacity, performed administrative tasks and did not create binding legal edicts, allowing for copyright protection of his work. In contrast, judges and legislators exercise sovereign power, acting as agents of the People, which impacts the copyright status of their work. The OCGA annotations created by the Georgia General Assembly, composed of officials with legislative authority, are distinct from works produced by other government employees. This distinction is significant because it emphasizes that works produced by those exercising sovereign power are more likely to be viewed as authored by the public, reinforcing the notion that the OCGA annotations are part of the public domain and carry authoritative weight, unlike unannotated versions that lack official status.

The identity of the official who created a work is crucial in determining its validity as an exercise of sovereign power, as sovereign authority is delegated to specific public officials rather than the government as a whole. This principle is supported by cases such as Marbury v. Madison and others that emphasize the importance of the creator's identity in assessing whether an act reflects legitimate sovereign power. While not every legislative work is automatically uncopyrightable, the creation of the Official Code of Georgia Annotated (OCGA) annotations by public officials with legislative authority suggests that these annotations should be considered public domain. Although the annotations do not have the same legal force as the statutory text, they are deemed "law-like" and authoritative regarding Georgia statutes, having been integrated with the statutory text and recognized by the General Assembly. The annotations have significant legal implications, as they are referenced by Georgia courts for interpreting statutory meaning and legislative intent, thus further supporting the conclusion that they reflect the constructive authorship of the People. The Georgia General Assembly's language regarding the merging of statutory and annotation elements indicates a loss of distinct identity, reinforcing the notion that these annotations represent a unified legal framework rather than separate entities.

Webster’s Third New International Dictionary defines "merge" as the act of combining into one entity, losing distinct identity through absorption. Similarly, the Oxford English Dictionary describes "merge" as being absorbed and losing character or identity, emphasizing unification of disparate elements into a single whole. In the context of Georgia law, when the General Assembly chose to merge annotations with statutory text, the resultant entity is officially published as the "Official Code of Georgia Annotated" (O.C.G.A. 1-1-1). This merger creates an official state publication that embodies Georgia laws, with certain portions carrying legal force, while O.C.G.A. 1-1-7 indicates that annotations do not have binding legal effect.

Despite the lack of binding authority for annotations, the legislature's decision to merge them with statutes alters their distinct character and endows them with an official legislative quality. Understanding the statutory text requires considering the annotations, as they enhance the interpretation of the law. The OCGA is designated as the authoritative codification of Georgia laws, distinctly positioned above other annotated codes, such as West’s. Consequently, the annotations are treated as authoritative and significant, reflecting the official commentary on the Code. The first annotation in the OCGA even cites a court case, underscoring the importance of the state's endorsement of the OCGA's content.

Attorneys referencing the unofficial publication of the 1981 Code do so at significant risk. The Georgia legislature emphasizes the importance of its "official" designation by permitting the official Code's publisher to use the state emblem, while restricting all other entities from its use. Although the Code's annotations do not constitute binding law, they hold considerable persuasive authority due to their official status and the fact that they are authored by the same legislature that created the statutes. Consequently, citizens may view these annotations as carrying special insights into legislative intent. Courts in Georgia have treated these comments as definitive indicators of statutory meaning and legislative intent, frequently citing them to elucidate the legal effect, purpose, and scope of statutory provisions.

The excerpt outlines several legal cases that reference the Official Code of Georgia Annotated (OCGA) comments as authoritative sources for interpreting statutory provisions. These cases establish that OCGA comments can define the nature of statutory remedies, clarify legislative intent, determine the meaning of statutes, and outline the burden of proof required by law. It asserts that works of law, being authoritative expositions, are uncopyrightable and must be freely accessible to the public, as emphasized in historical cases and legal principles. The text discusses the public policy rationale for ensuring access to legal statutes and judicial opinions, arguing that knowledge of the law is essential for obedience. Additionally, it distinguishes between works created by judges in their official capacity, which hold authoritative weight, and other works, such as judicial speeches, which do not carry official legal effect. The excerpt concludes with a reference to Hamilton's perspective on the limitations of legislative power in relation to constitutional authority.

The authoritativeness of a work plays a crucial role in determining whether it is created under sovereign power and whether it is uncopyrightable under the rule in Banks. The nature of the work, particularly its authoritative weight, suggests that certain annotations are likely attributable to the constructive authorship of the People, resembling judicially authored materials more than state employee-produced works, as in the case of Callaghan. 

The process of creating these annotations, while not identical to the legislative process for statutory provisions, is closely related. Unlike the statutory portions of the Official Code of Georgia Annotated (OCGA), which undergo a thorough legislative process including committee review and gubernatorial approval, the annotations are not enacted individually by the Georgia General Assembly. Instead, they are prepared by the Code Revision Commission outside of the regular legislative channels and lack the same formal voting process as the statutory text. This distinction further supports the conclusion that the annotations are uncopyrightable.

The Georgia General Assembly formally adopted annotations prepared by the Commission as part of the official Code of Georgia, as evidenced by O.C.G.A. 1-1-1. This legislative act required approval from both Houses and the Governor's signature. Annually, the General Assembly votes to amend the Official Code of Georgia Annotated (OCGA), reaffirming its status as the state's official codification of laws. The principles of bicameralism and presentment are essential to the legislative process, defining the lawful enactment of legislation. Even when legislation is adopted from external sources, it must still go through these fundamental steps to possess legal standing. The process of creating OCGA annotations aligns with ordinary legislative practices, emphasizing the importance of procedural adherence in law-making to ensure legal validity. Deviations from this process can render legislative actions ineffective. Furthermore, judicial interpretations of law must also follow established procedures, ensuring that any official exposition is conducted within recognized legal frameworks. The manner in which laws and interpretations are promulgated is critical in determining whether they result from the legitimate exercise of sovereign power in a republican government.

The Line Item Veto Act was invalidated for straying from established constitutional procedures for legislative power. Actions taken outside proper channels are deemed illegitimate, paralleling the notion that only authorized officials can exercise sovereign power. The Supreme Court's ruling in Banks highlighted that works produced by judges during their official duties are not subject to copyright, implying that works created outside formal judicial channels lack this protection. The process of lawmaking inherently involves public participation, as illustrated by the Georgia legislature’s bicameral adoption of annotations that merge with statutory text, indicating these works are produced in the legislators' official capacity. 

The inquiry centers on whether official annotations embody a legitimate exercise of sovereign power, guided by factors such as the identity of the creator, the nature of the work, and the production process. An act is invalid if performed by unauthorized officials, outside legal scope, or improper procedures. Conversely, actions that align with constitutional processes and involve duly authorized officials better reflect legitimate sovereign authority. The principles discussed suggest that the OCGA annotations, created by Georgia's legislative body, are not copyrightable. Although they do not hold the same legal weight as statutes or judicial opinions, they possess recognized legal significance.

Annotations associated with Georgia statutes are recognized as authoritative sources, integral to the state's official codification of laws. The Georgia General Assembly has designated these annotations as "official," thereby establishing a necessary link between them and the statutory text. This connection mandates that a comprehensive understanding of Georgia law includes unrestricted access to the annotations. The annual legislative adoption of these annotations follows a formal process, indicating that they reflect the collective will of the People, with legislators acting as representatives in this role. Consequently, the annotations are classified as public domain material, meaning they cannot be copyrighted. The court reversed the district court's judgment, ordered a judgment for the appellant PRO, vacated the state’s injunctive relief, and remanded the case for further proceedings consistent with this ruling.