United States Court of Appeals, Eleventh Circuit

“ When a legislature enacts a law, or a court writes an opinion rendering an official interpretation of the law in a case or controversy, they are undisputedly speaking on behalf of the People, who are properly regarded as the author of the work. The task we face today is whether we should similarly treat Georgia’s entire official code, which expressly merges its statutes and their official annotations, as the sovereign expression of the People by their legislature, as public domain material. ”

“ West Publishing, 27 F. at 57 (“But it is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws, or the official interpretation of those laws, should be co-extensive with the sweep of the maxim. Knowledge is the only just condition of obedience.”) ”

“ First, and of critical importance to our analysis is that the Georgia General Assembly is the driving force behind their creation. The Code Revision Commission exerts authoritative influence over the creation of the annotations and the Commission indisputably is an arm of the General Assembly. Thus, just as the uncopyrightable works in Banks were created by the Ohio Supreme Court, the annotations are, in a powerful sense, a work created by the Georgia state legislature. ”

“ When the wrong public official exercises a power delegated in the law, when the power exercised is of a type not contemplated by the law, or when the power is exercised outside the procedural channels prescribed by the law, the act cannot be considered a valid exercise of the sovereign power. ”

“ An exposition on the meaning of a law, even if written by a judge, would obviously not qualify as an exercise of the sovereign power to interpret law if it were written outside the ordinary procedural channels by which that power is exercised. ”

“ To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. ”

“ The annotations are themselves law-like insofar as we examine who made them, how they were made, and the role they play in the legislative and jurisprudential spheres of Georgia’s public life. In consequence, they too represent a work, like the statutes themselves, that is constructively authored by the People. ”

“ In consequence, the Court has held that legislative immunity “applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.” Id. at 618, 92 S.Ct. 2614; see also Ellis v. Coffee Cty. Bd. of Registrars, 981 F.2d 1185, 1192 (11th Cir. 1993) (“To the extent that a legislator is cloaked with legislative immunity, an adjunct to that legislative body possesses the same immunity.”) . ”

“ Under the terms of the agreement, Lexis is responsible for the ongoing publication and maintenance of the Code, and all editorial, publication, and distribution costs. In exchange, Lexis was given the exclusive right of publication by Georgia. But, notably, Georgia holds the copyright in the annotations in its own name. The publication agreement also specifies what types of annotations should appear alongside the statutory text, and provides detailed and specific directions as to how Lexis is to generate and arrange this content. ”

“ Russell Long) (“The original and continuing purpose of this prohibition is to assure maximum availability and dissemination of informational material prepared by or for the Government at the expense of the public.”) .
On the other hand, the rule in Banks derives more directly from the concept of popular sovereignty. ”