Portal:Supreme Court of the United States

“ There is no need to assume inventive or nefarious behavior 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 captured in a tangible form, triggering a panoply of exclusive 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. ”

“ 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 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 copyrightable, why are those created by legislators? The answer lies in the difference between the role of a judge and the role of a legislator. ”

“ Understanding the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied in future judicial opinions. [6] Thus, deprived of access to judicial 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 was even more essential in the 19th century before the proliferation of federal and state regulatory law fundamentally altered the role that common-law judging played in expounding upon the law. ”

“ The tendency 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 discussions. ”

“ Unlike other copyrightable works of authorship, judicial opinions have binding legal 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.” ”

“ 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. ”

“ In addition to being flawed as a textual and precedential 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.” ”

“ 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 annotations comment on statutes already enacted. ”

“ 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 legislation, is not done in a legislator’s law-shaping capacity, I would hold the OCGA annotations copyrightable and therefore reverse the judgment of the Court of Appeals for the Eleventh Circuit. ”

“ This characteristic of the annotations distinguishes them from preenactment legislative materials that touch or concern the correct interpretation of the legislature’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 legislative chambers. [2] Annotations are thus unlike, for example, surveys, work commissioned by a legislature to aid in determining whether existing law should be amended. ”

“ Second, unlike judges and legislators, the creators of annotations 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 analogous to other copyrightable materials. ”

“ 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. ”

“ 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. ”

“ Blackstone described this as a “prerogative copyrigh [t] ,” explaining that “ [t] he king, as the executive magistrate, has the right of promulging to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council.” ”