Posts Tagged: "Georgia v. Public.Resource.Org"

On Monday, the U.S. Supreme Court ruled in Georgia et al. v. Public.Resource.Org., Inc. that a state code revision commission cannot claim copyright protection over annotated state code. The ruling upheld the U.S. Court of Appeals for the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org, Inc., which reversed-in-part, vacated-in-part and remanded a lower court’s ruling in a copyright infringement case involving an annotated version of Georgia’s official state code. The decision was not a shock, but could have serious implications going forward. Here is what some members of the copyright bar had to say.

Yesterday, the U.S. Supreme Court affirmed the U.S. Court of Appeals for the Eleventh Circuit’s decision that a state code revision commission cannot claim copyright protection over annotated state code in Georgia et al. v. Public.Resource.Org., Inc. The Court dove into the judicially created “edicts doctrine,” which has not really been explored since the 1800s. The “original works” in question were supplementary annotations accompanying the statutes in Georgia’s Official Code, known as the Official Code of Georgia Annotated (“OCGA”). These annotations and summaries of judicial decisions were owned by Georgia’s Code Revision Commission (“Commission”), although they were originally authored by a division of the LexisNexis Group under a “work made for hire” contract.

On December 2, the U.S. Supreme Court heard oral argument in the matter of Georgia v. Public.Resource.Org, Inc. The issue on appeal was on whether annotations to the Official Code of the State of Georgia, which were prepared by Mathew Bender & Co under the supervision of Georgia’s Code Revision Commission, which was itself created by Georgia’s General Assembly, were capable of copyright protection, or whether they were an integral part of the laws of the State of Georgia, which, like all legislation, is part of the public domain and cannot be copyrighted. The outcome of this decision will affect legal publishing schemes in a number of states which, similar to Georgia, contract the work of preparing annotations to private sector companies, which then monetize those copyrights through a license fee structure. Indeed, concern for states’ publishing schemes led to the Solicitor General’s office and various other states joining in on the side of petitioner, the State of Georgia, who is seeking to establish that the annotations are subject to copyright. The case also presents a fascinating, almost philosophical discussion on the nature of annotations and the legal or persuasive force they should be afforded.

Next week, the Supreme Court will hear the first of six IP cases granted cert last term. On Monday, the Court will hear Peter v. NantKwest, in which the question presented is “Whether the phrase ‘[a]ll the expenses of the proceedings’ in 35 U.S.C. 145 encompasses the personnel expenses the USPTO incurs when its employees, including attorneys, defend the agency in Section 145 litigation.” The Court will heard other IP cases in November and December, while Google v. Oracle, Berkheimer v. HP, and Hikma v. Vanda await a decision on cert, and petitions in Straight Path IP Group, LLC v. Apple Inc., et al. and Athena Diagnostics v. Mayo Collaborative Services have the patent world holding its collective breath.

That an open government is inseparable from a free society is one of the basic tenets supporting American democracy. If people are to be ruled by laws, they have a fundamental right to access those laws. To that end, in 17 U.S.C. § 105, the U.S. Copyright Office makes clear that binding and official government edicts may not be copyrighted by the United States government. However, the Supreme Court has not addressed the issue as it pertains to state governments since a series of cases in the late 1800s. But are there limits to that access, or are there certain situations in which government edicts may, in fact, fall under the scope of copyright protection? The U.S. Supreme Court hopefully will provide some clarity on this issue when it hears the case Georgia, et al. v. Public.Resource.Org, Inc. in the upcoming term.