Argument analysis: Justices debate copyrightability of state legislative annotations

The Supreme Court brought a surprising amount of attention to the second argument yesterday morning, in Georgia v Public.Resource.Org. After the argument involving Second Amendment rights in New York State Rifle & Pistol Association v. City of New York, you might have expected the justices to sit back and relax a bit in a dispute about the copyrightability of the annotations in Georgia’s official legislative code. To the contrary, they were active, engaged and opinionated.

Perhaps this case interests the justices because it turns less on the language of the Copyright Act than it does on the meaning of a trilogy of 19th-century Supreme Court cases, which established that the opinions that courts issue cannot be copyrighted: Anyone can copy those opinions, even if the copier finds the opinions in a published volume. As applied to this case, all agree that the same rule prevents any party (including Georgia) from claiming the exclusive right to reproduce statutes adopted by the Georgia legislature.

The problem is that the published volumes in which those statutes appear include not only the laws themselves, but also a series of annotations that for the most part summarize judicial decisions that interpret the laws. The question for the justices is whether Georgia can enforce a copyright in those annotations, which as a practical matter would prevent third parties from copying the published volume that includes the non-copyrightable Georgia statutes.

Defending Georgia’s assertion that it can copyright the annotations, Joshua Johnson faced a line of questioning from Justice Neil Gorsuch that dominated much of Johnson’s presentation. Gorsuch emphasized the approval of the annotations by the Georgia legislature. As he noted, although the annotations might be drafted by a commission rather than the legislature, the legislature seems to approve them in much the same way it does legislation. As Gorsuch put it: “I thought they were at least approved as a whole by the legislature. So, if that’s the case …. [w]hy would we allow the official law enacted by a legislature … to be hidden behind a pay wall?”

In the same vein, Justice Sonia Sotomayor asked how the annotations differ from annotations that a judge might prepare, which can’t be copyrighted: “The state is the one who’s requiring this to be done. It reviews it. It approves it. It is setting it out there as a merged document with the actual laws.”

As the argument progressed, though, other justices appeared more receptive to Georgia’s position. In particular, Justice Stephen Breyer seemed to take a steadily stronger view of the matter, drawing on his expertise in the copyright area (about which he wrote in his years as a professor). Early on, for example, while Johnson was still speaking, Breyer commented:

I thought this isn’t that difficult. If a judge does something in his judicial capacity, it is not copyrightable. If a legislator does something … in their legislative capacity, it is not copyrightable. I mean, who cares who the author is? There are public policy reasons that have existed forever in the law that you make those two things not copyrightable.

Breyer continued to press that perspective during the presentation of Assistant to the Solicitor General Anthony Yang, who appeared as an amicus curiae in support of Georgia. When justices challenged Yang’s effort to draw a distinction between legislative and executive acts, Breyer interjected: “Where you have some words on a paper and they are performing a function that is a legislative function or a judicial function, … we don’t allow it [to be copyrighted] because to let a monopolist get a hold of that is dangerous.”

The general emphasis on the importance of a “legislative function” grew during the presentation of Eric Citron, representing Public.Resource.Org, the entity claiming a right to copy the annotations. Early in Citron’s presentation, Justice Elena Kagan suggested that the annotations are not law, but rather a summary of what courts have thought about the law. As she put it, “[t]he State is doing no more and no less than what Westlaw does. So the State’s view of the law is just like Westlaw’s view of the law. Why should we treat the two differently?” Justice Ruth Bader Ginsburg struck a similar note, asking, “[W]hy … shouldn’t it matter that these annotations are in no sense the law, they’re just useful information on how the law has been interpreted and applied by others?”

Working from that point, Breyer commented to Citron that PRO’s problem is showing “[w]hat function does this particular set of words [namely, the annotations] play in the law?” For Breyer, “if we look at the precedent, … it’s hard for me to see that it plays much more of a … role than [the] annotations [found copyrightable previously].” Thus, for Breyer, PRO would “have to show that the official Westlaw actually plays a larger role in the law, in a law-making function, than does Westlaw. I doubt that there’s something here that shows that, but maybe there is.”

Justice Brett Kavanaugh also challenged Citron repeatedly on a variety of points. One set of comments emphasized the same distinction as Breyer’s, between the law and the annotations describing it. Kavanaugh pressed Citron to agree that it “would be a mistake” to treat the annotations as having any significance in the articulation of law.  As Kavanaugh put it, “if you cited the annotations as binding law, that would be wrong.”

Another question from Kavanaugh pointed to an amicus brief by a group of states, which made what Kavanaugh described as “a very strong argument” that depriving the states of copyright protection for works like this likely would mean “that there’ll be fewer of these annotations.” Finally, Kavanaugh asked Citron whether he thought the justices should “interpret” the old Supreme Court cases (which predate the Copyright Act by more than a century) “in the direction of the Copyright Act, which clearly says states can get copyright protection for annotations?”

We should find out how the justices resolve this case by the end of June.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel for the respondents in this case. The author of this post is not affiliated with the firm.]

Editor’s Note: Analysis based on transcript of oral argument.