Code Revision Comm'n Ex Rel. Gen. Assembly of Ga. v. Public.Resource.Org, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11589
________________________
D.C. Docket No. 1:15-cv-02594-RWS
CODE REVISION COMMISSION,
for the Benefit of and on behalf of General Assembly of Georgia,
STATE OF GEORGIA,
Plaintiffs - Counter
Defendant - Appellees,
versus
PUBLIC.RESOURCE.ORG, INC.,
Defendant - Counter
Claimant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 19, 2018)
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Before MARCUS and HULL, Circuit Judges, and BUCKLEW, * District Judge.
MARCUS, Circuit Judge:
Today, we are presented with the question of whether the annotations
contained in the Official Code of Georgia Annotated (OCGA), authored by the
Georgia General Assembly and made an inextricable part of the official
codification of Georgia’s laws, may be copyrighted by the State of Georgia.
Answering this question means confronting profound and difficult issues about the
nature of law in our society and the rights of citizens to have unfettered access to
the legal edicts that govern their lives. After a thorough review of the law, and an
examination of the annotations, we conclude that no valid copyright interest can be
asserted in any part of the OCGA.
From the earliest day of the Republic, under federal copyright law, copyright
interests have vested in the author of the work. Authorship, therefore, is central to
many questions that arise under the Copyright Act, 17 U.S.C. § 101 et seq. This
case is no exception. In most states the “official” code is comprised of statutory
text alone, and all agree that a state’s codification cannot be copyrighted because
the authorship is ultimately attributable to the People. Conversely, all agree that
annotations created by a private party generally can be copyrighted because the
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
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annotations are an original work created by a private publisher. But the annotations
in the OCGA are not exactly like either of these two types of works. Rather, they
fall somewhere in between -- their legal effect and ultimate authorship more
indeterminate. To resolve this question, then, we reason by analogy, and drill down
on the core attributes that make the OCGA annotations what they are -- namely an
exercise of sovereign power.
The general rule that legislative codifications are uncopyrightable derives
from an understanding of the nature of law and the basic idea that the People, as
the reservoir of all sovereignty, are the source of our law. For purposes of the
Copyright Act, this means that the People are the constructive authors of those
official legal promulgations of government that represent an exercise of sovereign
authority. And because they are the authors, the People are the owners of these
works, meaning that the works are intrinsically public domain material and,
therefore, uncopyrightable.
That the law itself, whether it takes the form of a legislative enactment or of
a judicial opinion, is subject to the rule is clear and not contested. This is because
these works represent the quintessential exercise of sovereign power. 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
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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.
To navigate the ambiguities surrounding how to characterize this work, we
resort to first principles. Because our ultimate inquiry is whether a work is
authored by the People, meaning whether it represents an articulation of the
sovereign will, our analysis is guided by a consideration of those characteristics
that are the hallmarks of law. In particular, we rely on the identity of the public
officials who created the work, the authoritativeness of the work, and the process
by which the work was created. These are critical markers. Where all three point in
the direction that a work was made in the exercise of sovereign power -- which is
to say where the official who created the work is entrusted with delegated
sovereign authority, where the work carries authoritative weight, and where the
work was created through the procedural channels in which sovereign power
ordinarily flows -- it follows that the work would be attributable to the constructive
authorship of the People, and therefore uncopyrightable.
The question is a close one -- and important considerations of public policy
are at stake on either side -- but, at the end of the day, we conclude that the
annotations in the OCGA are sufficiently law-like so as to be properly regarded as
a sovereign work. Like the statutory text itself, the annotations are created by the
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duly constituted legislative authority of the State of Georgia. Moreover, the
annotations clearly have authoritative weight in explicating and establishing the
meaning and effect of Georgia’s laws. Furthermore, the procedures by which the
annotations were incorporated bear the hallmarks of legislative process, namely
bicameralism and presentment. In short, the annotations are legislative works
created by Georgia’s legislators in the exercise of their legislative authority.
As a consequence, we conclude that the People are the ultimate authors of
the annotations. As a work of the People the annotations are inherently public
domain material and therefore uncopyrightable. Because we conclude that no
copyright can be held in the annotations, we have no occasion to address the
parties’ other arguments regarding originality and fair use.
I.
A.
The Official Code of Georgia Annotated (OCGA or the Code) is an
annotated compilation of Georgia statutes that has been published annually since
1982. The statutory text contained in the OCGA has been “enacted and [has] the
effect of statutes enacted by the General Assembly of Georgia.” O.C.G.A. § 1-1-1.
As the Code itself explains, the statutory text in the OCGA is the official published
version of Georgia’s laws, and when the Georgia General Assembly enacts a new
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law, the bill typically reads “An Act… To amend… the Official Code of Georgia
Annotated.”
Appearing alongside the statutory text are various annotations, consisting of
history lines, repeal lines, cross references, commentaries, case notations, editor’s
notes, excerpts from law review articles, summaries of opinions of the Attorney
General of Georgia, summaries of advisory opinions of the State Bar, and other
research references. The Code itself makes clear that these annotations are a part of
the official Code, stating that the statutory portions of the Code “shall be merged
with annotations… and [are] published by authority of the state …and when so
published [are to] be known and may be cited as the ‘Official Code of Georgia
Annotated.’” O.C.G.A. § 1-1-1.
Despite the fact that they are part of the official Code, Georgia law says that
the annotations themselves do not have the force of law in the way that the
statutory portions of the Code do. One provision of the Code explains that:
Unless otherwise provided in this Code, the descriptive headings or
catchlines immediately preceding or within the text of the individual Code
sections of this Code, except the Code section numbers included in the
headings or catchlines immediately preceding the text of the Code sections,
and title and chapter analyses do not constitute part of the law and shall in no
manner limit or expand the construction of any Code section. All historical
citations, title and chapter analyses, and notes set out in this Code are given
for the purpose of convenient reference and do not constitute part of the law.
O.C.G.A. § 1-1-7. Laws passed during each session of the Georgia General
Assembly that reenact the OCGA as the state’s official code similarly provide that
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the annotations “contained in the Official Code of Georgia Annotated are not
enacted as statutes by the provisions of this Act.” See, e.g., 2015 Ga. Laws 9, § 54.
The annotations were initially prepared by Mathew Bender & Co., Inc., an
operating division of the LexisNexis Group, (Lexis), pursuant to an agreement it
entered into with the State of Georgia. 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. The agreement also provides that the Code Revision Commission (the
“Commission”) supervises the work of Lexis and has final editorial control over
the contents of the OCGA.
The Commission is a body established by the Georgia General Assembly in
1977 that was originally tasked with undertaking the recodification of all of
Georgia’s laws, a project that had not been done since 1933. The Commission is
comprised of Georgia officials, including the Lieutenant Governor, four members
of the Georgia Senate, the Speaker of the Georgia House of Representatives, four
additional members of the Georgia House of Representatives, and five members
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appointed by the president of the State Bar of Georgia. Following its successful
recodification of Georgia law and the publication of the OCGA in 1982, the
Commission is now responsible for updating the OCGA and supervising Lexis’s
editing and publication of the OCGA.
In addition to providing instructions to Lexis about how the annotations
should be created, compiled, and arranged, the publication agreement establishes a
number of other conditions governing the relationship between Lexis and the State
of Georgia. First, the agreement requires that Lexis create a free, unannotated,
online version of the Code for use by the general public. Second, the agreement
limits the price that Lexis can charge for the OCGA. While other commercial
annotations of the Georgia Code can cost as much as $2,570, the price of the
OCGA is currently $404. Third, it grants Lexis the exclusive right to produce and
sell print, CD-ROM, and online versions of the OCGA. Finally, it provides that the
Commission shall receive royalties on the sale of CD-ROM and online versions of
the OCGA, but shall not receive royalties from the sale of print volumes.
The publication agreement also provides that “[a]ll the contents of the
Code… shall be copyrighted in the name of the State of Georgia… [and] [t]he
copyrights shall cover all copyrightable parts of the Code.” The Commission
asserts a copyright in all portions of the OCGA except for the statutory text, which
it recognizes cannot be copyrighted. Despite the copyright and the exclusive
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publishing rights granted to Lexis, the State of Georgia makes the CD-ROM
version of the OCGA available to the general public at over 60 state and county-
operated facilities throughout Georgia, such as libraries and universities. In
addition, state agencies are granted the right to print and distribute or sell to the
public portions of the OCGA that they are responsible for administering.
B.
Public.Resource.Org (PRO) is a non-profit organization with a mission of
improving public access to government records and primary legal materials. Thus
for example, PRO has been responsible for the free, online publication of all U.S.
Supreme Court opinions and every post-1950 U.S. Court of Appeals opinion. PRO
has also been responsible for the online publication of various state statutory codes.
In 2013 PRO purchased all 186 volumes of the print version of the OCGA
and its supplements, scanned them, and uploaded them to its website to be freely
accessible to the public. It also placed digital copies of the OCGA onto USB drives
and mailed them to various Georgia legislators. Additionally, PRO distributed
copies of the OCGA to other organizations and on other websites in order to
facilitate its further dissemination by other parties.
On multiple occasions the Commission sent letters to PRO demanding that it
cease and desist from publishing the OCGA on the grounds that publication
infringes on the State of Georgia’s copyright in the work. PRO refused to comply,
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arguing that there was no valid copyright in the OCGA because the law cannot be
copyrighted. The Commission, acting on behalf of the Georgia General Assembly
and the State of Georgia, sued PRO on July 21, 2015 in the United District Court
for the Northern District of Georgia. The complaint sought injunctive relief against
PRO’s “widespread and unauthorized copying and distribution of the copyrighted
annotations in the Official Code of Georgia Annotated through the distribution of
thumb drives containing copies of the O.C.G.A. and the posting of the O.C.G.A. on
various websites.” On September 14, 2015, PRO filed its answer to the complaint,
acknowledging its widespread publication of the OCGA, but denying that the State
of Georgia holds an enforceable copyright in the Code. PRO also asserted the
defense of fair use. Finally, PRO counterclaimed seeking a declaratory judgment
that “the State of Georgia has no valid copyright in any portion of the O.C.G.A.
because the O.C.G.A. is in the public domain.”
Following briefing and argument, the district court granted the
Commission’s motion for partial summary judgment and denied PRO’s motion.
The court concluded that because the annotations in the OCGA lack the force of
law, they are not public domain material. Also, it rejected PRO’s other challenges
to the validity of Georgia’s copyright as well as its fair use defense. Soon
thereafter, the district court entered a permanent injunction against PRO enjoining
it “from all unauthorized use, including through reproduction, display, distribution,
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or creation of derivative works, of the Official Code of Georgia Annotated
(O.C.G.A.).” The injunction also ordered PRO to “remove all versions of the
O.C.G.A. from its website,” and to cease any fundraising activities connected with
PRO’s publication of the OCGA.
This timely appeal ensued.
II
We review the grant of summary judgment de novo, applying the same legal
standards which bound the district court. Whatley v. CNA Ins. Cos, 189 F.3d 1310,
1313 (11th Cir. 1999). In doing so, we consider “the evidence and all factual
inferences therefrom in the light most favorable to the party opposing the motion.”
Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1282 (11th Cir 2003). Summary
judgment is proper only where there is no genuine issue of material fact. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact
exists where the dispute is “over facts that might affect the outcome of the suit
under the governing law” and where the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. We also review a district
court’s decision to grant equitable relief for abuse of discretion, considering
questions of law de novo and findings of fact for clear error. Preferred Sites, LLC
v. Troup Cty., 296 F.3d 1210, 1220 (11th Cir. 2002).
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In order to establish a prima facie case of copyright infringement, “a plaintiff
must show that (1) it owns a valid copyright in the [work] and (2) defendants
copied protected elements from the [work].” Peter Letterese And Assocs., Inc. v.
World Inst. of Scientology Enters., 533 F.3d 1287, 1300 (11th Cir. 2008). A valid
copyright registration “constitute[s] prima facie evidence of the validity of the
copyright.” 17 U.S.C. § 410 (c). Once the plaintiff has produced a valid copyright
registration, the burden shifts to the defendant to establish that the copyright is
invalid. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1233 (11th Cir. 2010).
There is no dispute that the State of Georgia has a registered copyright in the
OCGA annotations. Nor do the parties contest that PRO copied the OCGA in its
entirety. Thus, at the heart of this case is the question whether Georgia’s copyright
in the OCGA is valid; on this issue PRO carries the burden of proof.
A.
The Constitution grants Congress the power “[t]o promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.” Art. I, Sec. 8, cl.
8. Congress has exercised this power by passing the Copyright Act. 17 U.S.C. §
101 et seq. Under the Copyright Act:
Copyright protection subsists… in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which
they can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device.
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17 U.S.C. § 102.
As this provision makes clear, “authorship” is central to the statutory
scheme. Only “original works of authorship” are eligible for copyright protection.
What’s more, authorship generally determines who has a possessory interest in a
work. “Copyright in a work… vests initially in the author or authors of the work.”
17 U.S.C. § 201(a). Indeed, authorship allows a person to claim copyright
protection regardless of whether the work has been registered with the United
States Copyright Office. As we have explained, “[c]opyright inheres in authorship
and exists whether or not it is ever registered.” Arthur Rutenberg Homes, Inc. v.
Drew Homes, Inc., 29 F.3d 1529, 1531 (11th Cir. 1994). In consequence, to
ascertain who holds a copyright in a work, we ordinarily must ascertain the identity
of the author.
The meaning of authorship takes on special significance in cases like this
where we consider the copyrightability of a government edict. A long line of
authority, stretching back more than 180 years, establishes that, with respect to
certain governmental works, the term “author” should be construed to mean “the
People,” so that the general public is treated as the owner of the work. This means
that a work subject to the rule is inherently public domain material and thus not
eligible for copyright protection. The foundations of the case law establishing this
doctrine are far from clear. Few courts have fully explained the basis for this idea
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and the Supreme Court last addressed the question in 1888. Thus, before
explaining why we construe the “author” of the OCGA to mean “the People,” it’s
worth examining the principal cases in some detail in order to understand the
considerations that guided them.
The Supreme Court first addressed whether a government edict can be
copyrighted in Wheaton v. Peters, 33 U.S. 591 (1834). The Court unanimously
held that “no reporter has or can have any copyright in the written opinions
delivered by this Court; and that the judges thereof cannot confer on any reporter
any such right.” Id. at 668. The Court was interpreting the Copyright Act of 1790,
but it did not explain the foundations for the rule that “the law” was excluded from
copyright protection. See id. at 593.
The Court revisited the question in Banks v. Manchester, 128 U.S. 244
(1888), and held that the opinions of state court judges, just like Supreme Court
opinions, were not copyrightable. In Banks the Court considered an infringement
suit filed by a publishing firm that had published official reports containing the
decisions of the Supreme Court of Ohio against a defendant who had published the
same material in the American Law Journal. Id. at 249. An Ohio statute provided
for the appointment of an official reporter for the Supreme Court of Ohio, and
tasked him with compiling the decisions and other materials authored by the judges
and securing “for the benefit of the state” a copyright on the compilations. Id. at
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245, 249. The Ohio statute also required the Secretary of State to contract with a
publisher, who would be given the exclusive right to publish the reports compiled
by the official court reporter “so far as the state can confer [such right].” Id. at 246.
The plaintiff publishing firm in Banks was the chosen publisher, and, in suing, was
attempting to enforce a copyright interest in the work of the Ohio judges assigned
to it by the State of Ohio.
The Court found the copyright invalid. Id. at 252. It emphasized that under
then-extant copyright law only “authors” could obtain a copyright in their work.
The Court determined that the reporter who had created the compilations did not
qualify as the author of the opinions or the other materials written by the judges
since he had not created the works. Id. Moreover, the Supreme Court explained
that “[i]n no proper sense can the judge who, in his judicial capacity, prepares the
opinion or decision, the statement of the case, and the syllabus, or head-note, be
regarded as their author.” Id. at 253. Thus, the Court rested its decision on a
construction of the statutory term “author” that excluded both the judges and the
reporter from qualifying as authors of the material in question, which in turn meant
that neither the judges nor the reporter could have conveyed a valid copyright
interest to the publishing firm bringing suit.
The Court offered a number of reasons for holding that the judges could not
be considered the “authors” of their work. In the first place judges “receive from
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the public treasury a stated annual salary, fixed by law,” and therefore can “have
no pecuniary interest or proprietorship, as against the public at large, in the fruits
of their judicial labors.” Id. Furthermore, although the Court said that it was only
construing the statutory meaning of the term “author,” it also acknowledged that,
fundamentally, “[t]he question is one of public policy.” Id. In articulating this
public policy interest, the Court explained that “[t]he whole work done by the
judges constitutes the authentic exposition and interpretation of the law, which,
binding every citizen, is free for publication to all, whether it is a declaration of
unwritten law, or an interpretation of a constitution or a statute.” Id. Banks
expressly relied on a ruling of the Massachusetts Supreme Judicial Court in Nash
v. Lathrop, 142 Mass. 29 (1886), which had similarly observed that “it needs no
argument to show that justice requires that all should have free access to the
opinions, and that it is against sound public policy to prevent this, or to suppress
and keep from the earliest knowledge of the public the statutes, or the decisions
and opinions of the justices.” Id. at 35.
The next, and to date last time the Supreme Court considered the rule that
government edicts cannot be copyrighted came less than a month after the Court
had decided Banks, in Callaghan v. Myers, 128 U.S. 617 (1888). There, a publisher
of a set of reports containing the opinions of the Supreme Court of Illinois, known
as the Illinois Reports, brought suit for copyright infringement against a rival
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publisher that had copied and published the reports. Id. at 619-22. The original
publisher had obtained a proprietary interest in the reports from a salaried official
of the State of Illinois whose duties, defined by statute, consisted of compiling the
Illinois Reports; organizing the cases; writing annotations such as headnotes and
syllabi to appear alongside the opinions in the reports; and providing a certain
number of copies of the final product to the Secretary of State of Illinois. Id. at
645-46. Having fulfilled his statutory duties, the reporter sold whatever proprietary
interest he had in the Illinois Reports to the publishing firm. When the firm sued
for copyright infringement, the alleged infringer attempted to defend, claiming that
the reports were public property because they had been created by a state-
employed reporter who could himself have no proprietary interest in the work
since he created the reports as part of his public duties and therefore was not their
“author.” Id. at 645-47.
The Court began its analysis by reinforcing the basic rule announced in
Banks that “there can be no copyright in the opinions of the judges, or in the work
done by them in their official capacity as judges.” Id. at 647. Nevertheless it
rejected the claim that the copyright in the Illinois Reports was invalid. It
explained that the underlying rationale of Banks did not apply, observing that
“there is no ground of public policy on which a reporter who prepares a volume of
law reports, of the character of those in this case, can… be debarred from obtaining
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a copyright for the volume which will cover the matter which is the result of his
intellectual labor.” Id. The Court further suggested that, since the court reporter
was a “sworn public officer, appointed by the authority of the government… [and]
paid a fixed salary for his labors,” the state government might have taken any
proprietary interest in his work for itself, but the fact that it had not done so
suggested that there was “a tacit assent by the government to his exercising such
privilege” on his own. Id. The Court thus reasoned that federal copyright law as
explicated in Banks did not prevent the reporter from holding a valid copyright in
the work and that the state had not reserved the copyright to itself. As a result, the
copyright the reporter obtained and conveyed to the publishing firm was valid. The
compilation of judicial decisions and other explanatory material like headnotes,
tables, and indices, was different from Banks in two ways: first, the reporter, who
had been appointed by the Illinois Supreme Court, and not the judges, had written
the material accompanying the opinion; and, second, the reporter, and not the State
of Illinois, claimed to hold the copyright.
The Supreme Court has not examined the doctrine since it decided
Callaghan in 1888. However, since Banks and Callaghan the lower courts have
further explored the nature and application of the rule. Thus, for example, the Sixth
Circuit, in an opinion authored by Justice Harlan, applied the rule to state statutes.
Howell v. Miller, 91 F. 129 (6th Cir. 1898). The Fifth Circuit has extended the rule
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to encompass regulatory materials. Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293
F.3d 791 (5th Cir. 2002) (en banc). However, other courts have declined to extend
the rule in other, related contexts. See, e.g., CCC Info. Servs., Inc. v. Maclean
Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994) (declining to apply the rule
to a privately prepared listing of automobile values that several states required
insurance companies to use in calculating insurance payouts); Practice Mgmt. Info.
Corp. v. Am. Med. Ass'n, 121 F.3d 516 (9th Cir. 1997), amended, 133 F.3d 1140
(9th Cir. 1998) (declining to apply the rule to a privately authored coding system
that was incorporated into a government reimbursement scheme through
publication in the Federal Register); Cty. of Suffolk v. First Am. Real Estate Sols.,
261 F.3d 179, 193 (2d Cir. 2001) (declining to apply the rule to tax maps created
by a county assessor’s office); John G. Danielson, Inc. v. Winchester-Conant
Properties, Inc., 322 F.3d 26 (1st Cir. 2003) (declining to apply the rule to the
terms of a restrictive covenant a town entered into as part of a zoning scheme).
It is also worth observing that Congress has partially codified the rule
announced in Banks. Specifically, the 1909 version of the Copyright Act provided
that “no copyright shall subsist in the original text of any work which is in the
public domain… or in any publication of the United States Government, or any
reprint, in whole or in part, thereof.” 17 U.S.C. § 8 (repealed 1976). This
prohibition persists under current copyright law, enacted in 1976, which, in turn,
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provides that “[c]opyright protection under this title is not available for any work
of the United States Government.” 17 U.S.C. § 105.This partial codification of
Banks for works created by the federal government leaves unmodified the rule as it
applies to works created by the states. As the Copyright Office’s 1961 Register’s
Report stated, even though Congress enacted a prohibition that only applies to the
federal government, “the judicially established rule [] still prevent[s] copyright in
the text of state laws, municipal ordinances, court decisions, and similar official
documents.” 1961 Register’s Report, at 129-30.
Although case precedent and congressional enactments have long
established the rule that government works are not copyrightable, the foundations
of the rule are generally implicit and unstated. Since the Court in Banks was not
especially clear about the legal source of the rule it had announced and since the
issue has not been raised before in our Court, we start with a relatively clean
canvas. What is clear, however, is that the rule enunciated in Banks was grounded
on the Court’s interpretation of the term “author” in the Copyright Act of 1790,
that works created by courts in the performance of their official duties did not
belong to the judges, and that public policy compelled the conclusion that these
works were in the public domain and uncopyrightable.
Thus, we understand the rule in Banks to derive from first principles about
the nature of law in our democracy. Under democratic rule, the People are
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sovereign, they govern themselves through their legislative and judicial
representatives, and they are ultimately the source of our law. Under this
arrangement, lawmakers and judges are draftsmen of the law, exercising delegated
authority, and acting as servants of the People, and whatever they produce the
People are the true authors. When the legislative or judicial chords are plucked it is
in fact the People’s voice that is heard. Not surprisingly, then, for purposes of
copyright law, this means that the People, as the constructive authors are also the
owners of the law. And in this way, any work of which the People are the
constructive authors is intrinsically public domain material and is freely accessible
to all so that no valid copyright can ever be held in it.
The concept of popular sovereignty is deeply rooted in our politics, our law,
and our history. The seminal statement of America’s political creed boldly
proclaims that “[g]overnments . . . deriv[e] their just powers from the consent of
the governed.” THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). During
the ratification debates that followed the Revolution, James Madison similarly
began with the foundational idea that the People were sovereign, and that under the
proposed form of government “the public voice” was “pronounced by the
representatives of the people.” THE FEDERALIST No. 10 at 77 (James Madison)
(Clinton Rossiter ed., 1961). Still again, in the midst of the Civil War, President
Lincoln etched an indelible description of this form of government in the national
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memory, describing ours as a “government of the people, by the people, for the
people.” Abraham Lincoln, Gettysburg Address (November 19, 1863).
In fact, the United States Reports are filled with invocations of the
sovereignty of the People. As Chief Justice Marshall expressed the fundamental
idea many years ago: “[t]he government proceeds directly from the people; is
‘ordained and established,’ in the name of the people… [and] is emphatically and
truly, a government of the people. In form, and in substance, it emanates from
them. Its powers are granted by them, and are to be exercised directly on them, and
for their benefit.” M’Culloch v. Maryland, 17 U.S. 316, 403-05 (1819); see also
Chisholm v. Georgia, 2 U.S. 419 (1793); Luther v. Borden, 48 U.S. 1 (1849). See
also TOCQUEVILLE, DEMOCRACY IN AMERICA 53 (Mansfield ed. 2002). (“In
America, the principle of the sovereignty of the people… is recognized by mores,
proclaimed by laws; [] spreads with freedom and reaches its final consequences
without obstacle… when one wants to speak of the political laws of the United
States, it is always with the dogma of the sovereignty of the people that one must
begin.”).
While Banks is not explicit in grounding its holding in this conception of
sovereignty, other federal courts have ruled that government works are intrinsically
public domain material precisely because the People are sovereign and are
therefore the authors and owners of the law. Thus, for example, in Banks & Bros.
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v. W. Pub. Co., 27 F. 50 (C.C.D. Minn. 1886), the court justified the rule on the
grounds that “[e]ach citizen is a ruler,— a law-maker,— and as such has the right
of access to the laws he joins in making and to any official interpretation thereof. If
the right of property enters into the question, he is a part owner, and as such cannot
be deprived of equal access by his co-owners.” Id. at 57.
In the same vein, and more recently, several courts have applied the rule
announced in Banks and understood the rule to rest on foundational principles
about the nature of law in a democratic society. Thus, in Veeck, the Fifth Circuit,
sitting en banc, confronted the question of whether a model building code, once
adopted by two municipalities, lost its copyright protection. Veeck, 293 F.3d at
796. In concluding that the work was uncopyrightable, the court asserted as a basic
principle that the law is in “the public domain and thus not amenable to copyright,”
and that cases like Wheaton and Banks evince a “broad understanding of what
constitutes ‘the law’” so as to make judicial opinions in addition to statutes
ineligible for copyright protection. Id. at 795-96. On this basis, the court held that,
“[a]s governing law,” the municipal building codes also could not be copyrighted.
Id. at 796.
The court went on to explain that its holding rested on a deeper principle, a
“metaphorical concept of citizen authorship.” Id. at 799. As the court reasoned,
“[l]awmaking bodies in this country enact rules and regulations only with the
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consent of the governed. The very process of lawmaking demands and incorporates
contributions by ‘the people,’ in an infinite variety of individual and organizational
capacities… In performing their function, the lawmakers represent the public will,
and the public are the final ‘authors’ of the law.” Id. The court discerned that there
are strong public policy interests in giving the public unfettered access to the law.
“[P]ublic ownership of the law means precisely that ‘the law’ is in the ‘public
domain’ for whatever use the citizens choose to make of it. Citizens may reproduce
copies of the law for many purposes, not only to guide their actions but to
influence future legislation, educate their neighborhood association, or simply to
amuse.” Id. Thus, the “metaphorical concept of citizen authorship together with the
need for citizens to have free access to the laws are the ultimate holding of Banks.”
Id. (quotation omitted).
The First Circuit has also emphasized popular sovereignty as being
foundational to its understanding of the rule announced in Banks. In Building.
Officials & Code Administrators v. Code Technology, Inc., 628 F.2d 730 (1st Cir.
1980), the court considered, on an interlocutory appeal challenging the issue of a
preliminary injunction, a copyright infringement suit brought by the private sector
author of a model building code against a publisher of the Massachusetts building
code, which the Massachusetts legislature had based in large measure on the model
code. The court ruled that the inclusion of the otherwise copyrightable model
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building code in the official Massachusetts building code likely rendered those
materials, just like the rest of the materials in the Massachusetts building code,
“freely available for copying by anyone.” Id. at 732.
After reviewing case precedent going as far back as Wheaton, a panel of the
First Circuit asserted that “[t]he law thus seems clear that judicial opinions and
statutes are in the public domain and are not subject to copyright.” Id. at 734. The
court reasoned that this principle extends to regulatory codes as much as it does to
statutes and judicial opinions. While acknowledging that cases like Banks and
Wheaton seemed to rest in part on the identity of the creators of the works in
question, namely salaried public officials performing official duties, it explained
that a more fundamental principle was at work. In particular, “citizens are the
authors of the law, and therefore its owners, regardless of who actually drafts the
provisions, because the law derives its authority from the consent of the public,
expressed through the democratic process.” Id. The reason why judges and
legislators cannot copyright works they create, was not because they are working
for the government rather than for themselves, but rather because of a
“metaphorical concept of citizen authorship,” which means that, once it adopts a
text as law, the body politic becomes the author of the work in question, leaving
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the original drafter with no proprietary interest. Id. The court reasoned that this was
true even where the original creator of the work was a private sector actor.1
III.
The ultimate inquiry posed by the rule in Banks is thus whether a work is
attributable to the constructive authorship of the People, which is to say whether it
was created by an agent of the People in the direct exercise of sovereign authority.
Statutes and judicial opinions are the most obvious examples of what falls within
the ambit of the rule. See Veeck, 293 F.3d at 796 (“Banks represents a continuous
understanding that ‘the law,’ whether articulated in judicial opinions or legislative
acts or ordinances, is in the public domain and thus not amenable to copyright.”)
This does not mean that statutes, judicial opinions, and other texts that carry
the clear force of law are the only works that may be subject to the rule. For one
thing, relying, as the district court did, on a bright line distinction between edicts
that have the force of law and those that do not to apply the Banks rule simply does
1
It is also worth observing that rooting Banks in this understanding of sovereignty helps make
the rule congruent with other, closely related copyright doctrines. The work-for-hire doctrine, as
well as §105 -- the partial codification of Banks -- are both operationalized by identifying a
master-servant relationship and attributing authorship to the master. See, e.g., Comty. For
Creative Non-Violence v. Reid, 490 U.S. 730 (1989); United States v. First Tr. Co. of St. Paul,
251 F.2d 686, 690 (8th Cir. 1958); see also H.R. Rep. No. 94-1476 at 58 (1976) (“Although the
wording of the definition of ‘work of the United States Government’ differs somewhat from that
of the definition of ‘work made for hire,’ the concepts are intended to be construed in the same
way.”). Similarly, under our view of Banks, the People are the master, and therefore the owners
of the works created by their legislative and judicial agents. See Veeck, 293 F.3d at 797 (“Banks
refers to the source of the judges' salary in order to explain that it is the public at large, not the
judges, who have the ‘pecuniary interest or proprietorship’ in ‘the fruits of their judicial
labors.’”).
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not work in some cases. This is one of them. It is clear to us that there exists a zone
of indeterminacy at the frontier between edicts that carry the force of law and those
that do not. See Jean v. Nelson, 711 F.2d 1455, 1480-83 (11th Cir. 1983), on
reh'g, 727 F.2d 957 (11th Cir. 1984), aff'd, 472 U.S. 846 (1985). In this small band
of cases a government work may not be characterized as law, and yet still be so
sufficiently law-like as to implicate the core policy interests undergirding Banks.
Statutory texts are the kinds of works most obviously subject to the rule
announced in Banks. Because statutes are the prototypical works to which the rule
applies, we rely on the statutory example as the lodestar for our inquiry. Whether
or not a work is subject to the rule is dependent on whether the work is the law, or
sufficiently like the law, so as to be deemed the product of the direct exercise of
sovereign authority, and therefore attributable to the constructive authorship of the
People. Basing the inquiry on whether a work is similar enough to the law so as to
be attributable to the People, of course, does little to diminish the difficulty of
applying the Banks rule in the unique circumstances presented here. See John G.
Danielson, Inc. v. Winchester-Conant Properties, Inc., 322 F.3d 26, 38 (1st Cir.
2003) (“[The] straightforward general rule [of Banks] has proven difficult to apply
when the material in question does not fall neatly into the categories of statutes or
judicial opinions.”). But it does point us toward the right way of structuring our
analysis.
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Put simply, there are certain things that make the law what it is. The law is
written by particular public officials who are entrusted with the exercise of
legislative power; the law is, by nature, authoritative; and the law is created
through certain, prescribed processes, the deviation from which would deprive it of
legal effect. Each of these attributes is a hallmark of law. These characteristics
distinguish written works that carry the force of law from all other works. Since we
are concerned here with whether a work is attributable to the constructive
authorship of the People, these factors guide our inquiry into whether a work is law
or sufficiently law-like so as to be subject to the rule in Banks.
An analysis of these factors yields the conclusion that the annotations in the
OCGA, while not having the force of law, are part and parcel of the law. They are
so enmeshed with Georgia’s law as to be inextricable. 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. They are therefore uncopyrightable.
A.
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
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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.
While it is true that the annotations were initially prepared by a private
party, in this case Lexis, it is also the case that Lexis drafts the annotations
pursuant to highly detailed instructions contained in the contract it entered into
with the Code Revision Commission. In particular, the publication agreement not
only lists the types of materials that Lexis must include in the OCGA, but also
provides punctiliously specific instructions on how these materials are to be
prepared. Thus, by way of example, in addition to instructing Lexis to include
annotations summarizing court decisions that are relevant to various statutory
provisions in the OCGA, the publication contract tells Lexis which court decisions
to include. Moreover, the contract specifies the content of these summaries,
instructing Lexis to include discussion of those portions of judicial opinions that
involve “direct constructions” of a statute, including “constructions concerning
constitutionality, purpose, intent, and the meaning of words and phrases as well as
illustrations as to what a particular provision applies and to what a particular
provision does not apply.” Leaving even less to Lexis’s independent judgment, the
contract also instructs Lexis what not to include in the judicial summaries, ordering
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Lexis’s editors to “avoid long factual annotations where they do not bear directly
upon the statute involved.” Further, the agreement tells Lexis the order in which
the various case annotations are to be arranged.
The annotations containing summaries of judicial opinions are not the only
ones for which the publication contract provides highly specific directions. The
agreement also requires Lexis to include research references in the annotations,
and names the specific reference sources that must be included. Similarly, the
contract directs Lexis to include annotations dealing with legislative history and
specifies just how far back into a statutory provision’s history the annotations may
go.
In addition to providing detailed instructions that guide the creation of the
OCGA annotations, the Commission acts in a supervisory capacity as well,
monitoring Lexis’s work throughout the process. The contract says that the
annotations are prepared under the “direct supervision” of the Commission. The
contract spells out in some detail what this supervision means. In addition to
including the research references listed in the publication agreement, Lexis is
required to “include any new [references]… as required by the Commission.”
Sections of the agreement dealing with other annotations similarly allow the
Commission to direct the inclusion of new material. Indeed, the very first section
of the agreement states that the OCGA shall include, in addition to the various,
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specified annotations, “other material related to or included in such Code at the
direction of the Commission.”
Finally, the publication agreement describes in detail how the Commission is
to give its final assent to the annotations. First, as for each type of annotation, the
agreement affirms the Commission’s role in approving Lexis’s work. Thus, with
respect to the summaries of judicial opinions, the agreement provides that “the
form of the annotations shall be subject to the approval of the Commission.” The
agreement contains similar provisions with respect to the other annotations. More
generally, the agreement provides that the “ultimate right of editorial control over
all material contained in the Code shall be in the Commission, and in the event of
any disagreement between the Commission and the Publisher over the material to
be included, the decision of the Commission shall control.” A separate provision of
the agreement similarly provides that in the event of any disagreement “the
Commission shall prevail.” Moreover, the agreement requires that the Commission
have an opportunity to conduct pre-publication review of all subsequent
supplements, replacement volumes, and other updates to the OCGA.
In short, the Commission exercises direct, authoritative control over the
creation of the OCGA annotations at every stage of their preparation. The
Commission provides initial instructions to Lexis, directly supervises Lexis’s work
throughout the preparation process, and must give its final editorial assent to the
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annotations before they can become part of the OCGA. In this way, the
Commission undeniably controls the creation of the OCGA annotations.
The Commission’s intimate involvement in the creation of the annotations is
of great significance. This is because a close examination of the nature of the
Commission confirms that it is for all intents and purposes an arm of the Georgia
General Assembly. As we’ve noted, the Commission is composed of fifteen
members, nine of whom are sitting members of the Georgia General Assembly,
along with the Lieutenant Governor of the State. Further, funding for the
Commission comes directly from appropriations “provided for the legislative
branch of state government.” O.C.G.A. § 28-9-2. In addition, Georgia law provides
that “[t]he Office of Legislative Counsel shall serve as staff for the commission.”
O.C.G.A. § 28-9-4. This is notable because, under Georgia law, the Office of
Legislative Counsel is tasked with providing various advisory and legal services
“for the legislative branch of government” and is therefore properly seen as an
adjunct to the General Assembly. O.C.G.A. § 28-4-3. Thus, not only is the
Commission funded by legislative branch appropriations, but its staff is drawn
from an office that is itself an agency of the Georgia General Assembly.
Further confirming the Commission’s deep connection to the Georgia
General Assembly, the Georgia Supreme Court has held that the Commission’s
work is properly characterized as “legislative” in nature, and that it is therefore
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proper for the Commission to be largely composed of officials from the legislative
branch. Harrison Co. v. Code Revision Comm'n, 244 Ga. 325 (1979). Thus, in light
of how it is funded and staffed, and since its work is legislative in nature, it is
abundantly clear that the Commission is a creation and an agent of the Georgia
General Assembly.
Indeed, the connection between the Commission and the elected legislators
who make up the General Assembly is so close that the Commission may be
properly regarded as one in the same with the legislators for our purposes. As the
Supreme Court has explained in another context, “it is literally impossible, in view
of the complexities of the modern legislative process… for [legislators] to perform
their legislative tasks without the help of aides and assistants…the day-to-day work
of such aides is so critical to the Members' performance that they must be treated
as the latter's alter egos.” Gravel v. United States, 408 U.S. 606, 616-17 (1972). 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; 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.”). “The test for applicability of this
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derivative legislative immunity is whether the legislator, counsel or aide was
engaged within a legitimate sphere of legislative activity.” Id.
The basic intuition underlying cases applying the Speech and Debate Clause
seems to us equally instructive in identifying which entity in the Georgia state
government is the creative force behind the OCGA annotations. While the
Commission’s staff and six of its fifteen members are not Georgia legislators, the
Commission is plainly an adjunct of the General Assembly. As we have detailed,
its staff, funding, and responsibilities all fall under the legislative umbrella. The
Commission is therefore, in a real sense, the “alter ego” of the General Assembly,
meaning that the creative force behind the annotations are Georgia’s elected
legislators. Acting through the Commission, the legislators closely supervise and
direct the production of the annotations.
Moreover, and of even greater importance to our analysis, the OCGA
annotations, once completed, are subject to the approval not only of the
Commission, but also to the approval of the Georgia General Assembly. The
General Assembly actually votes (and must vote) to make the OCGA the official
codification of Georgia’s laws and, in doing so, also votes to incorporate the
annotations as part of the OCGA. O.C.G.A. § 1-1-1 (“The statutory portion of such
codification shall be merged with annotations, captions, catchlines, history lines,
editorial notes, cross-references, indices, title and chapter analyses, and other
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materials pursuant to the contract and shall be published by authority of the state
pursuant to such contract and when so published shall be known and may be cited
as the ‘Official Code of Georgia Annotated.’”). In other words, the OCGA
annotations are not only authored at the direction and under the close supervision
of the Georgia General Assembly, but they also obtain their peculiar status as
official annotations because they are adopted annually by the General Assembly.
That Georgia’s legislators are in a very real way the creators of the
annotations is a powerful indication that the annotations are subject to the Banks
rule. To begin, it is apparent that the rule established by Banks that government
edicts cannot be copyrighted, as applied to the works of state governments, is more
limited than the statutory prohibition on copyright protection for works of the
federal government. As we have explained, § 105 states that “[c]opyright
protection… is not available for any work of the United States Government,” and §
101 defines a “work of the United States Government” as “a work prepared by an
officer or employee of the United States Government as part of that person's
official duties.” Thus, under this prohibition, the work of any federal employee,
made in his capacity as a government employee, is uncopyrightable. See, e.g.,
Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969); United States v.
First Tr. Co. of St. Paul, 251 F.2d 686, 690 (8th Cir. 1958); Pub. Affairs Assocs.,
Inc. v. Rickover, 268 F. Supp. 444, 448 (D.D.C 1967). By contrast, the rule in
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Banks is more circumscribed, applying to a limited subclass of government works.
Thus, some works made by state employees, that would be subject to § 105 if made
by a federal employee, are nevertheless copyrightable under Banks. See, e.g.,
Callaghan, 128 U.S. at 645-46 (upholding the validity of a copyright in the work
created by a state employee that was created pursuant to his statutorily imposed
duties); County of Suffolk, 261 F.3d at 193 (declining to apply the rule in Banks to
tax maps created by a county assessor’s office).
The reasoning of Banks points to why the rule it has announced is applicable
to a more limited class of public officials than those governed by § 105’s
prohibition. The Court in Banks explained, “[i]n no proper sense can the judge
who, in his judicial capacity, prepares the opinion or decision, the statement of the
case, and the syllabus, or head-note, be regarded as their author or their
proprietor…Judges, as is well understood, receive from the public treasury a stated
annual salary, fixed by law, and can themselves have no pecuniary interest or
proprietorship, as against the public at large, in the fruits of their judicial labors…
The whole work done by the judges constitutes the authentic exposition and
interpretation of the law, which, binding every citizen, is free for publication to
all.” Banks, 128 U.S. at 253. Thus, like § 105, the Banks decision emphasizes the
fact that judges are producing works in their capacity as employees, but it also goes
further than § 105 and emphasizes that judges are unique among government
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employees. In addition to receiving “from the public treasury a stated annual
salary,” judges are empowered to create “authentic exposition[s] and
interpretation[s] of the law, which[] bind[] every citizen.” Id.
As a result, the mere fact that a work was created by a state-paid employee
in his capacity as an employee is not enough to trigger the rule in Banks.
Something more is needed. Specifically, the government official must be entrusted
with unique powers beyond those possessed by the typical government employee,
such as the power to pronounce official interpretations of the law.
In short, it is clear that the rule in Banks is not concerned, as § 105 is, with
the works of all government employees, but rather only with the works of certain
government employees, which is to say government employees who are possessed
of particular powers, namely the ability to promulgate official, binding edicts. This
distinction between the rules is no doubt attributable to the difference in their
underlying rationales. Section 105’s prohibition is justified on the grounds that the
public paid for the work and is therefore entitled to access it, and because wide
dissemination of federal government materials strengthens democratic discourse.
See Scherr, 297 F. Supp. at 110 (“[The]fundamental purpose underlying the
prohibition [] is based on the necessity of wide public dissemination of the contents
of materials produced by and relating to issues and problems of national interest,
which policy is unquestionably a desirable one in a democracy, much of whose
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success is dependent on a well-informed public.”) (quotations omitted and
alterations adopted); Hearings on H.R. 4347, H.R. 5680, H.R. 6831, H.R. 6835,
before Subcomm. No. 3 of the House Comm. on the Judiciary, 89th Cong., 1st
Sess. 1924 (1965) (statement of Sen. 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. As a result, while § 105 is concerned with any work
created by a federal employee, since all government works are paid for by the
taxpayer and, as a policy matter, are potentially useful to conscientious and
informed citizens, the rule in Banks is concerned with works created by a select
group of government employees, because only certain public officials are
empowered with the direct exercise of the sovereign power. 2
2
Among other things, there is a substantial public policy interest in public access to state-created
legal edicts for many of the same reasons that Congress decided to make all works of the federal
government uncopyrightable under § 105, namely because providing free access to such works
promotes an informed citizenry. See Veeck, 293 F.3d at 799 (“Citizens may reproduce copies of
the law for many purposes, not only to guide their actions but to influence future legislation,
educate their neighborhood association, or simply to amuse.”). And it is worth remembering that
the Supreme Court grounded the meaning of the word “author” in Banks on its understanding of
public policy.
Appellees suggest, nevertheless, that Georgia’s citizens can access the OCGA in over 60
libraries, so we ought not to be concerned about public access. Moreover, they say, citizens can
access the unannotated version of the Code on a free LexisNexis webpage provided pursuant to
Georgia’s contact with LexisNexis. We are unpersuaded. In the first place public ownership of
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This explains why the state-paid court reporter acting pursuant to his
statutory duties in Callaghan did not run afoul of the rule in Banks and could hold
a valid copyright in his work even though the work he created likely would fall
within § 105’s prohibition if he had been a federal employee. See Callaghan, 128
U.S. at 645-47. Though paid by the state, and acting pursuant to his official duties,
the court reporter was tasked with essentially administrative and clerical
responsibilities, to wit compiling and summarizing judicial decisions, rather than
the promulgation of binding legal edicts. Id. at 646. There was therefore “no
ground of public policy” standing in the way of his works’ copyrightability. Id. at
647.
In contrast, the judges in Banks, when considered in their relationship to the
sovereignty of the People, fulfill a different function than the court reporter in
Callaghan. Legislators and judges, unlike other government workers, are peculiarly
entrusted with the exercise of sovereign power to write or officially interpret the
law. Since the power to make law rests ultimately and exclusively with the People,
the primary, official duty of lawmakers and judges is therefore to act as agents of
the People. While government workers like the reporter in Callaghan might also be
the law by Georgia’s ten and a half million citizens means, as the Fifth Circuit put it, “‘the law’
is in the ‘public domain’ for whatever use the citizens choose to make of it.” Id. at 799. As for
access to an unannotated version of the Code, the unannotated version is not the authoritative law
in Georgia and may not be cited as such. Indeed, as the appellees themselves acknowledge, the
OCGA “contains the official, or State of Georgia-approved, codified statutory text.”
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said to be engaged in conducting the People’s business, their relation to the
exercise of sovereign power is more attenuated. As a result, if a government work
is created by a public official who is so empowered, it is substantially more likely
that the work is constructively authored by the people.3
In light of these considerations, that the Georgia General Assembly is the
driving force behind and ultimately adopts the OCGA annotations is significant.
Like the Ohio Supreme Court in Banks, the Georgia General Assembly is not
simply composed of ordinary government employees but rather of public officials
whose official duties peculiarly include the direct exercise of sovereign power. See
Ga. Const. Art. III, § I, Para. I (“The legislative power of the state shall be vested
in a General Assembly which shall consist of a Senate and a House of
Representatives.”). Of the many government workers employed by the state of
Georgia, the creators of the OCGA annotations are unique insofar as they are
entrusted by the sovereign with legislative power.
3
It is also worth remarking that basic principles of republican government show why the identity
of the official who created the work matters. Sovereign power isn’t delegated to the government
at large -- it is given to specific public officials to exercise in particular ways. See Marbury v.
Madison, 5 U.S. 137, 176 (1803) (“[The] original and supreme will organizes the government,
and assigns, to different departments, their respective powers.”). As a consequence, whether an
act represents a valid exercise of sovereign power depends on who undertook it. See, e.g., A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Bowsher v. Synar, 478 U.S. 714
(1986); Mistretta v. United States, 488 U.S. 361 (1989); Commodity Futures Trading Comm'n v.
Schor, 478 U.S. 833 (1986). Reasoning from this proposition, it takes only a small leap to
recognize that the identity of the officials who created the work is an important factor to consider
in applying Banks.
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This is not to say that every work produced by a legislative body is
automatically uncopyrightable. As we detail below, still more is necessary to
demonstrate that the OCGA annotations are the kind of work that is attributable to
the constructive authorship of the People. However, because the OCGA
annotations were created by public officials entrusted with sovereign, legislative
authority, just like the opinions in Banks were created by justices on the Ohio
Supreme Court entrusted with sovereign, judicial authority, this weighs in favor of
a determination that the OCGA annotations belong in the public domain.
B.
We are also persuaded because, while not carrying the force of law in the
way that the statutory portions of the OCGA do, the annotations are “law-like” in
the sense that they are “authoritative” sources on the meaning of Georgia statutes.
Having been merged by the General Assembly with the statutory text into a single,
unified edict, stamped with the state’s imprimatur, and created and embraced by
the same body that wrote the text that they explicate, the annotations have been
suffused with powerful indicia of legal significance that is impossible to ignore.
The annotations cast an undeniable, official shadow over how Georgia laws are
interpreted and understood. Indeed, Georgia’s courts have cited to the annotations
as authoritative sources on statutory meaning and legislative intent. The
annotations’ authoritativeness makes them closely analogous to the types of works
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that ordinarily represent an exercise of sovereign authority. The nature of the work,
like the identity of its creator, therefore impels us further toward the conclusion
that these annotations are attributable to the constructive authorship of the People.
The nature of the OCGA annotations is spelled out in some detail by
Georgia’s General Assembly. While disclaiming any legal effect in the
annotations, the Georgia law providing for the creation of the OCGA also states
that the “statutory portion of such codification shall be merged with annotations,
captions, catchlines, history lines, editorial notes, cross-references, indices, title
and chapter analyses, and other materials.” O.C.G.A. § 1-1-1 (emphasis added).
This language is telling. In various dictionaries, the word “merge” is defined as
meaning to combine or unite, often in such a way that the constituent elements of
the merger lose their distinct identity or characteristics and become one. The
Random House Dictionary of the English Language defines “merge” as “to lose or
cause to lose identity by uniting or blending” and “to combine or unite into a single
unit.” RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 550 (1980).
Similarly, Webster’s Third New International Dictionary defines “merge” as “to
become combined into one” and to “lose identity by absorption or intermingling.”
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1414 (1981). And the Oxford
English Dictionary variously defines “merge” as “to be absorbed and disappear, to
lose character or identity by absorption into something else; to join or blend,” and
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“to combine to form a single entity.” OXFORD ENGLISH DICTIONARY (3rd ed.
2001). The use of the word “merge” thus carries with it strong connotations of
unification or combination of disparate elements into a single whole in which the
previously distinct attributes of each element become intermingled and shared.
The question then becomes, what is the nature of the new thing created when
the Georgia General Assembly explicitly chose to merge the annotations with
statutory text? Here too Georgia law supplies an answer. In particular, Georgia law
provides that the merged text “shall be published by authority of the state … and
when so published shall be known and may be cited as the ‘Official Code of
Georgia Annotated.’” O.C.G.A. § 1-1-1. Thus, the product of the merger is an
official state publication, labelled and cited as the authoritative embodiment of the
laws of the State of Georgia.
It of course remains true that portions of the OCGA clearly carry the force of
law while O.C.G.A. § 1-1-7 disclaims any legal effect in the annotations. Yet the
significance of the legislature’s decision to “merge” these two things into a single
edict remains. The Georgia legislature was not required to merge the annotations
with the statutes in order to create the OCGA, which it then stamped with the
imprimatur of the State. But the bicameral legislature chose to do so. By
combining these two components into a unified whole, their attributes have been
intermingled and their distinct character altered. While this does not mean that the
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annotations, by virtue of appearing alongside statutory text, are suddenly possessed
of binding legal effect, it does mean that their combination with the statutory text
imbues them with an official, legislative quality.
The statutory text, having been merged with these legislatively authored
expositions on the meaning of Georgia law, must be read in pari materia with
them. The annotations’ combination with the statutes means that any understanding
of the statutory text arrived at without reference to the annotations is axiomatically
incomplete. Because Georgia law tells us that the official codification of Georgia
statutes contains not only statutory text but also annotations that have been
combined and unified with the statutory text into a single edict, a full
understanding of the laws of Georgia necessarily includes an understanding of the
contents of the annotations. In this way, the annotations are clearly laden with legal
significance.
Their significance is strengthened further by the legislature’s decision to
label the unified whole “Official.” The OCGA is not simply one of a number of
competing annotated codifications of Georgia laws. It does not stand on equal
footing with West’s annotated Georgia code. Rather, it is the official codification
of Georgia laws, stamped with the imprimatur of the state. This status necessarily
causes the annotations to cast a long shadow over how the statutory portions of the
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OCGA are understood. Because these are the official comments to the Code, they
are to be read as authoritative in a way that annotations ordinarily are not.
Indeed, demonstrating the importance of the state’s decision to stamp the
OCGA with its imprimatur, the very first annotation in the very first section of the
OCGA favorably cites to a court case that warns that “[a]ttorneys who cite
unofficial publication of 1981 Code do so at their peril.” O.C.G.A. § 1-1-1 (citing
State of Ga., ex rel. v. Harrison Co., 548 F. Supp. 110 (N.D. Ga. 1982)). Similarly,
the importance the Georgia legislature attached to its branding of the Code as
“Official” is further demonstrated by its enactment of a law allowing the publisher
of the “official Code… to use the state emblem on the cover of the publication,”
whereas all other private parties are prohibited from using the state emblem in any
context. O.C.G.A. § 50-3-8. Thus, while stamping the annotations with the state’s
imprimatur and labelling it official does not suddenly elevate the annotations to the
status of binding law, it too enhances their already potent cachet in a way that is
undeniable and also impossible to ignore.
Moreover, as we have already noted, the annotations are not simply adopted
by the legislature as an official reference work, but also, in a very meaningful
sense, are written by the General Assembly -- a fact that further accentuates their
legal significance. The annotations are not merely expositions on the meaning of
statutes, but rather are official comments authored by the same body that also
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wrote the statutes. Thus, it would be only natural for the citizens of Georgia to
consider the annotations as containing special insight into the meaning of the
statutory text, and to therefore confer upon the annotations a special status. Cf.
Stigars v. State, 674 A.2d 477, 483 (Del. 1996) (“In the search for legislative
intent, considerable weight is given to an official commentary written by the
drafters of the statute.”); Horenkamp v. Van Winkle And Co., 402 F.3d 1129, 1132
(11th Cir. 2005) (“Although not binding, the interpretations in the Advisory
Committee Notes [in the Federal Rules of Civil Procedure] are nearly universally
accorded great weight in interpreting federal rules.”); Tome v. United States, 513
U.S. 150, 167 (1995) (Scalia, J., dissenting) (“Having been prepared by a body of
experts, the [official Notes to the Federal Rules of Evidence] are assuredly
persuasive scholarly commentaries—ordinarily the most persuasive—concerning
the meaning of the Rules.”); Schiavone v. Fortune, 477 U.S. 21, 31 (1986)
(“Although the Advisory Committee's comments [to the Federal Rules of Civil
Procedure] do not foreclose judicial consideration of the Rule’s validity and
meaning, the construction given by the Committee is ‘of weight.’”); Auer v.
Robbins, 519 U.S. 452, 461 (1997) (giving substantial deference to an agency’s
interpretation of a regulation that the agency itself authored).
Our view is reinforced by an examination of how the annotations have been
treated by Georgia’s courts. In particular, the state courts frequently have
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characterized OCGA comments as conclusive statements about statutory meaning
and legislative intent. See, e.g., Jackson v. S. Pan & Shoring Co., 258 Ga. 401
(1988) (explaining that “[t]he express intent of [the statutory provision] … is set
out in the Comment to O.C.G.A. § 14-2-86”); Cox v. Fowler, 279 Ga. 501 (2005)
(citing OCGA comments as showing the “legal effect” of and “the General
Assembly’s intention” with respect to a statutory provision); Prodigy
Centers/Atlanta No. 1 L.P. v. T-C Assocs., Ltd., 269 Ga. 522 (1998) (citing OCGA
comment as establishing the scope of a statutory definition); Quinn v.
Cardiovascular Physicians, P.C., 254 Ga. 216 (1985) (citing OCGA comment as
stating “the purpose” of a statutory provision); Chaney v. Burdett, 274 Ga. 805
(2002) (citing OCGA comment as stating the purpose behind a revision to a
statutory provision); Grace Bros. v. Farley Indus., Inc., 264 Ga. 817 (1994) (citing
OCGA comment as defining the nature of a statutory remedy); Magner v. One Sec.
Corp., 258 Ga. App. 520 (2002) (citing OCGA comment as giving the definition of
a statutory term); VSI Enterprises, Inc. v. Edwards, 238 Ga. App. 369 (1999)
(citing OCGA comment as stating the “intent of the legislature” and what the
“legislature expected” when enacting a statutory provision); Leventhal v. Post
Properties, Inc., 276 Ga. App. 742 (2005) (citing OCGA comment as showing the
meaning of statutory provision); Rosenfeld v. Rosenfeld, 286 Ga. App. 61 (2007)
(citing OCGA comments as establishing the burden of proof that a party must carry
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under a statutory provision); Weir v. Kirby Const. Co., 213 Ga. App. 832 (1994)
(citing OCGA comment as stating the purpose of a statutory provision).
The nature and authoritativeness of the work, like the identity of the author,
are material in determining whether the work is attributable to the constructive
authorship of the People. After all, the decision in Banks not only emphasized the
identity of the creator of the work but also the nature of the work, reasoning that
the work was uncopyrightable precisely because it was an “authentic exposition
and interpretation of the law [] binding [on] every citizen.” Banks, 128 U.S. at 253.
Many other courts applying the rule in Banks, or a rule like it, have
emphasized that the law, as an authoritative work that governs people’s lives, is
uncopyrightable. See, e.g., Nash v. Lathrop, 142 Mass. 29 (1886) (“The decisions
and opinions of the justices are the authorized expositions and interpretations of
the laws, which are binding upon all the citizens… justice requires that all should
have free access to the opinions, and [] it is against sound public policy to prevent
this, or to suppress and keep from the earliest knowledge of the public the statutes,
or the decisions and opinions of the justices.”); 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.”); State of Connecticut v.
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Gould, 34 F. 319, 319 (C.C.N.D.N.Y. 1888) (“[C]onsiderations of public policy
which, it is said, demand, in a country where every person is presumed and
required to know the law, that the fullest and earliest opportunity of access to the
expositions of the judicial tribunals should be afforded to all.”).
By way of contrast, a judge might create a work in his capacity as an
employee of the government that bears little relation to his role as an official
expositor of the law. A speech delivered by a judge, depending on the
circumstances of the address, may or may not count as a work created by a
government employee. See Pub. Affairs Assocs., Inc. v. Rickover, 268 F. Supp.
444 (D.D.C 1967). But such a work assuredly does not count as a work made in the
exercise of the sovereign power to make or interpret the law. A judicial speech is
assigned no authoritative weight -- it binds no one and has no official effect on the
law or on how it is understood. Only those works that derive from the legitimate
exercise of sovereign power, such as official interpretations of the law and the law
itself, are assigned authoritative weight.
Put another way, whether or not a work is assigned the authoritative weight
associated with law is deeply intertwined with the question of whether the work
was made by the agents of the People in the legitimate exercise of delegated,
sovereign power. As Hamilton explained during the ratification debates, “[n]o
legislative act [] contrary to the Constitution, can be valid. To deny this, would be
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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 FEDERALIST No. 78 at 466 (Alexander
Hamilton) (Clinton Rossiter ed., 1961). As a result, the authoritativeness of a work
is probative on the question of whether a work is created in an exercise of
sovereign power, and is also probative on the question of whether a work falls
within the scope of the rule in Banks. Thus, in addition to whether the work was
prepared by a judicial or legislative body, an examination of the nature of the
work, which is another way of asking whether it carries authoritative weight, may
indicate whether the work is uncopyrightable.
These annotations carry authoritative weight and therefore make it more
likely that the work is attributable to the constructive authorship of the People.
Quite simply, they are much closer to resembling the judicially authored materials
found in Banks than other works produced by state employees, such as the
materials produced by the Court reporter in Callaghan.
C.
The final factor we consider is the process by which the annotations were
created. While the process by which the annotations were made into an official
edict of the State of Georgia is not identical to the process by which the statutory
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provisions were made into binding law, they are very closely related. As a result,
like the identity of the work’s creator and the nature of the work, the process also
weighs in favor of the conclusion that the work is uncopyrightable.
Both parties acknowledge that the Georgia General Assembly does not
individually enact each separate annotation as part of the ordinary legislative
process. In this respect the annotations are different than the statutory portions of
the OCGA. The statutory portions of the Code are introduced as bills in the
Georgia legislature, generally pass through the committee process where
legislators can directly influence the text of the bill, are voted on by both Houses,
and are signed by the Governor. See Tracking a Bill Through the General
Assembly, http://www.legis.ga.gov/Legislation/en-US/default.aspx.
The enacted laws of a session of the legislature are then “published
in Georgia Laws as a collection of session laws, representing all of the acts and
resolutions passed during that particular legislative session.” Austin Williams,
“Researching Georgia Law,” 34 Ga. St. U.L. Rev. 741, 761 (2015). Later, the laws
are incorporated into the OCGA. Id. Each year, the Georgia legislature then votes
to “reenact the statutory portion of [the] Code as amended, in furtherance of the
work of the Code Revision Commission,” thereby voting on the statutory text in
the form in which it has been incorporated into the OCGA. See, e.g., 2017 Ga.
Laws 275, § 54; 2016 Ga. Laws 625, § 54; 2015 Ga. Laws 9, § 54.
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Further, under Georgia law, it is the responsibility of the Code Revision
Commission to “prepare and have introduced at each regular session of the General
Assembly one or more bills to reenact and make corrections in the Official Code of
Georgia Annotated.” O.C.G.A. § 28-9-5. In this way, the statutory portions of the
OCGA are voted on at least twice, once when they are voted on as individual bills
after having gone through the regular legislative process, and once as part of the
Georgia legislature’s vote to reenact the updated OCGA as prepared by the
Commission. By contrast, the annotations are prepared by the Commission outside
of the normal channels of the legislative process in the manner we have detailed,
and are not voted on individually in the way that Georgia session laws are.
However, it is also the case that the Georgia General Assembly voted to
adopt the annotations as prepared by the Commission as an integral part of the
official Code. See O.C.G.A. § 1-1-1. Further, it did so through a legislative act that
necessarily passed both Houses of the legislature and was signed into law by the
Governor. Moreover, and significant for our purposes, the General Assembly votes
each year to amend the OCGA and reaffirm its status as the official codification of
Georgia’s laws.
Under the American system of government, the essential hallmarks of
legislative process are bicameralism and presentment. See I.N.S. v. Chadha, 462
U.S. 919 (1983); see also Ga. Const. Art. V, § II, Para. IV; Ga. Const. Art. III, § V,
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Para. V. While legislative processes may ordinarily include the introduction of an
individual bill and its passage through the relevant committee before it receives a
vote of the full House, those are not the essential steps that endow the bill with its
legal status. Rather, the vote of both Houses of the legislature, and presentment to
an executive are the defining moments in an exercise of the sovereign authority.
This is so even when the legislature adopts as its own a work authored outside the
normal channels of the legislative process. See Veeck., 293 F.3d at 799 (“Even
when a governmental body consciously decides to enact proposed model building
codes, it does so based on various legislative considerations, the sum of which
produce its version of ‘the law.’ In performing their function, the lawmakers
represent the public will, and the public are the final ‘authors’ of the law.”).
That the process by which the OCGA annotations were created is similar to
the ordinary process by which laws are enacted also is relevant to our inquiry. The
importance of this consideration is apparent from well settled procedural
mechanisms by which the power to make and interpret the law is exercised, and
from the observation that deviating from the process may deprive the edict of its
legal effect. As we’ve noted, bicameral passage of a bill and its presentment to the
executive are the ordinary means by which a legislative body exercises the
sovereign power entrusted to it. See Chadha, 462 U.S. at 957 (invalidating a
purported exercise of the legislative power that failed to adhere to “the standards
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prescribed in Article I” for the exercise of such power); U.S. Const. art. I, § 7, cl. 2.
Similarly, the judicial power to propound the meaning of the law must be exercised
according to established procedures. In particular, judges issue official
interpretations of the law as part of deciding a case or controversy, after
considering the arguments made by both parties to the case. See Hayburn’s Case, 2
U.S. 408 (1792). 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. See Correspondence of the Justices (1793) (found in 3
Johnston, Correspondence and Public Papers of John Jay 486–89 (1891)).
In short, as is the case with the identity of the creator of the work and the
nature of the work, fundamental principles that govern how sovereign power is
exercised under a republican form of government suggest that the process by
which an edict is promulgated is probative as well on the question of whether a
work was created through the exercise of such power. Cf. Clinton v. City of New
York, 524 U.S. 417 (1998) (invalidating the Line Item Veto Act on the grounds
that it impermissibly deviated from the “finely wrought” constitutional processes
established for the exercise of legislative power). Just as an action is not deemed a
legitimate exercise of sovereign power if it is undertaken by the wrong official, so
too it may be invalid if undertaken outside the proper procedural channels. The
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converse follows naturally: if an action is undertaken through the ordinary
procedural channels by which the sovereign power is exercised, it is more likely
that the action represents an exercise of sovereign power.
The importance of process was suggested long ago in Banks when the
Supreme Court emphasized that only those works created by judges in “the
discharge of their judicial duties” are uncopyrigthable. Banks, 128 U.S. at 253. In
other words, a work made by a judge outside the normal channels by which
judicial action is taken would not be subject to the rule in Banks. See Veeck, 293
F.3d at 799 (“The very process of lawmaking demands and incorporates
contributions by ‘the people.’”). It is therefore fair to say that, just as the Court in
Banks emphasized that the justices of the Supreme Court of Ohio had authored the
work in question “in the discharge of their judicial duties,” the Georgia
legislature’s use of bicameralism and presentment to adopt the annotations as their
own and merge them with statutory text indicates that the work was created by the
legislators in the discharge of their official duties. This too bolsters our conclusion
IV.
Our inquiry has focused on whether the official annotations represent a
direct exercise of sovereign power, and are therefore attributable to the
constructive authorship of the People. In making this determination, we have
compared the work in question to works that represent the prototypical exercise of
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sovereign power, which is to say statutes and official interpretations of the law. We
have been guided by three factors that may be regarded as the defining
characteristics of law -- the identity of the public official who created the work; the
nature of the work; and the process by which the work was produced.
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. From these principles, the
corollary logically follows: when the action taken is of the type entrusted by the
People to their agents, when it is wielded by a public official whose assigned duties
include the exercise of sovereign power, and when it is exercised pursuant to
constitutionally designated processes, it more likely represents an exercise of the
sovereign authority. The reasoning found in Banks also suggests the importance of
these factors.
All of them point strongly toward the conclusion that the OCGA annotations
are not copyrightable. The OCGA annotations are created by Georgia’s legislative
body, which has been entrusted with exercising sovereign power on behalf of the
people of Georgia. While the annotations do not carry the force of law in the way
that statutes or judicial opinions do, they are expressly given legal significance so
that, while not “law,” the annotations undeniably are authoritative sources on the
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meaning of Georgia statutes. The legislature has stamped them “official” and has
chosen to make them an integral part of the official codification of Georgia’s laws.
By wrapping the annotations and the statutory text into a single unified edict, the
Georgia General Assembly has made the connection between the two inextricable
and, thereby, ensured that obtaining a full understanding of the laws of Georgia
requires having unfettered access to the annotations. Finally, the General
Assembly’s annual adoption of the annotations as part of the laws of Georgia is
effected by the legislative process -- namely bicameralism and presentment -- that
is ordinarily reserved for the exercise of sovereign power.
Thus, we conclude that the annotations in the OCGA are attributable to the
constructive authorship of the People. To advance the interests and effect the will
of the People, their agents in the General Assembly have chosen to create an
official exposition on the meaning of the laws of Georgia. In creating the
annotations, the legislators have acted as draftsmen giving voice to the sovereign’s
will. The resulting work is intrinsically public domain material, belonging to the
People, and, as such, must be free for publication by all.
As a result, no valid copyright can subsist in these works. We, therefore,
reverse the judgment of the district court, direct that judgment be entered for
appellant PRO, vacate the district court’s order granting the State of Georgia
injunctive relief, and remand for further proceedings consistent with this opinion.
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REVERSED IN PART, VACATED IN PART AND REMANDED
58