`
`3511 the $upreme QEuurt at the @Hniteh $tate§
`
`STATE OF GEORGIA, ET AL., PETITIONERS,
`
`U.
`
`PUBLIC.RESOURCE.ORG, INC.
`
`0N PETITION FOR A WRIT OF CERTIORARI
`
`TO THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`ANTHONY B. ASKEW
`
`JOHN P. ELWOOD
`
`LISA C. PAVENTO
`
`JOSHUA S. JOHNSON
`
`MEUNIER CARLIN &
`CURFMAN LLC
`
`Counsel of Record
`MATTHEW X. ETCHEMENDY
`
`.999 Peachtree Street
`
`VINSON & ELKINS LLP
`
`2200 Pennsylvania Ave.,
`NW, Suite 500 West
`
`Washington, DC 20037
`(202) 63.9- 6623
`joshjohnson@velaw. com
`
`NE, Suite 1300
`Atlanta, GA 30309
`
`(404) 645- 7700
`
`DANIEL R. ORTIZ
`
`UNIVERSITY OF
`
`VIRGINIA SCHOOL OF
`
`LAW SUPREME COURT
`
`LITIGATION CLINIC
`
`580 Massie Road
`
`Charlottesville, VA
`22903
`
`
`
`
`QUESTION PRESENTED
`
`This Court has held, as a matter of “public policy,”
`that judicial opinions are not copyrightable. Banks v.
`Manchester, 128 U.S. 244, 253-254 (1888). Lower
`courts have extended that holding to state statutes.
`See, e.g., John G. Danielson, Inc. v. Winchester- Conant
`Props., Inc., 322 F.3d 26, 38 (1st Cir. 2003). But the
`rule that “government edicts” cannot be copyrighted
`has “proven difficult to apply when the material in
`question does not fall neatly into the categories of
`statutes or judicial opinions.” Ibid.
`
`The question presented is:
`
`Whether the government edicts doctrine extends
`to—and thus renders uncopyrightable—works that
`lack the force of law, such as the annotations in the
`Official Code of Georgia Annotated.
`
`(I)
`
`
`
`II
`
`PARTIES TO THE PROCEEDINGS
`
`1. Petitioners, the State of Georgia and the Georgia
`Code Revision Commission, on behalf of and for the
`benefit of the General Assembly of Georgia, were
`plaintiffs and counter-defendants in the district court,
`and appellees below.
`
`2. Respondent Public.Resource.Org, Inc., was the
`defendant and counter-claimant in the district court,
`and the appellant below.
`
`
`
`III
`
`TABLE OF CONTENTS
`
`Page
`
`Question Presented...................................................... I
`
`Parties To The Proceedings ........................................ II
`
`Appendix Contents ................................................... IV
`
`Table Of Authorities ................................................... V
`
`Opinions Below ........................................................... 1
`
`Jurisdiction ................................................................. 1
`
`Constitutional And Statutory Provisions
`Involved ................................................................. 1
`
`Introduction ................................................................ 1
`
`Statement .................................................................... 3
`
`Reasons For Granting The Petition ......................... 15
`
`I.
`
`The Decision Below Exacerbates An
`
`Acknowledged Split Of Authority On The
`Scope Of The Government Edicts Doctrine ...... 15
`
`A. Courts Of Appeals Are Sharply Divided On
`The Government Edicts Doctrine .................... 16
`
`B. The OCGA Annotations Would
`
`Be
`
`Copyrightable In Other Circuits ..................... 22
`
`II. The Decision Below Is Wrong .......................... 24
`
`III. This Case Presents An Ideal Vehicle For
`
`Issue Of Unquestionable
`Resolving An
`Importance ......................................................... 32
`
`Conclusion ................................................................. 36
`
`
`
`IV
`
`APPENDIX CONTENTS
`
`Page
`
`APPENDIX A: Opinion of the U.S. Court of
`Appeals for the Eleventh Circuit
`(Oct. 19, 2018) ........................................................... 1a
`
`APPENDIX B: Order of the U.S. District
`
`Court for the Northern District of Georgia
`(Mar. 23, 2017) ........................................................ 54a
`
`APPENDIX C: Permanent Injunction
`Order of the U.S. District Court for the
`
`Northern District of Georgia (Apr. 7, 2017) ........... 74a
`
`APPENDIX D: Constitutional and
`
`Statutory Provisions ............................................... 76a
`
`
`
`V
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page(s)
`
`Banks L. Pub. v. Laws.’ Co-Operative Pub.
`
`Co., 169 F. 386 (2d Cir. 1909) .............................. 29
`
`Banks v. Manchester,
`
`128 U.S. 244 (1888) ...................................... passim
`
`BUC Int’l Corp. v. Int’l Yacht Council Ltd.,
`489 F.3d 1129 (11th Cir. 2007) ............................ 12
`
`Callaghan v. Myers,
`128 U.S. 617 (1888) ...................................... passim
`
`CCC Information Services, Inc. v. Maclean
`Hunter Market Reports, Inc.,
`44 F.3d 61 (2d Cir. 1994) ................................ 19, 23
`
`County of Suffolk v. Experian Info.
`Solutions, Inc.,
`
`No. 99-cv-8735, 2000 WL 628731
`(S.D.N.Y. May 15, 2000) ....................................... 17
`
`County of Suffolk v. First Am. Real Estate
`Sols.,
`261 F.3d 179 (2d Cir. 2001) .......................... passim
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) .......................................... 4, 27
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991) .......................................... 4, 25
`
`Gray v. Russel,
`10 F. Cas. 1035 (C.C.D. Mass. 1839) ................... 29
`
`Harrison Co. v. Code Revision Comm’n,
`260 S.E.2d 30 (Ga. 1979) ............................ 8, 23, 27
`
`
`
`Cases—Continued:
`
`Page(s)
`
`Howell v. Miller,
`91 F. 129 (6th Cir. 1898) ...................... 3, 18, 19, 22
`
`Inhale, Inc. v. Starbuzz Tobacco, Inc.,
`755 F.3d 1038 (9th Cir. 2014) .............................. 26
`
`John G. Danielson, Inc. v. Winchester-
`
`Conant Props, Inc.,
`322 F.3d 26 (1st Cir. 2003) ........................... 3, 4, 15
`
`Klaxon Co. v. Stentor Electric Mfg. Co.,
`313 U.S. 487 (1941) .............................................. 28
`
`Mills Music, Inc. v. Snyder,
`469 U.S. 153 (1985) .............................................. 26
`
`New State Ice Co. v. Liebmann,
`285 U.S. 262 (1932) .............................................. 33
`
`Practice Management Information Corp. v.
`American Medical Ass’n,
`121 F.3d 516 (9th Cir. 1997) ........................ passim
`
`Rosemond v. United States,
`572 U.S. 65 (2014) ................................................ 35
`
`Seago v. Horry County,
`663 S.E.2d 38 (8.0. 2008) ..................................... 18
`
`Skidmore v. Swift & Co.,
`323 U.S. 134 (1944) .............................................. 26
`
`Veeck v. Southern Building Code Congress
`Int’l, Inc.,
`
`293 F.3d 791 (5th Cir. 2002) ........................ passim
`
`Wheaton v. Peters,
`33 U.S. 591 (1834) ........................................ passim
`
`
`
`VII
`
`Cases—Continued:
`
`Page(s)
`
`Zivotofsky v. Clinton,
`566 U.S. 189 (2012) .............................................. 35
`
`Constitutional Provisions:
`
`Ga. Const. art. III, §V ............................................... 27
`
`Ga. Const. art. V, § II, para. IV ................................. 27
`
`U.S. Const. art. I, § 8, c1. 8 .......................................... 3
`
`Statutes:
`
`17 U.S.C. § 101 ....................................................... 6, 25
`
`17 U.S.C. § 102 ........................................................... 32
`
`17 U.S.C. § 102(a) ........................................................ 3
`
`17 U.S.C. § 102(b) ........................................................ 4
`
`17 U.S.C. § 103 ....................................................... 6, 25
`
`17 U.S.C. § 103(b) ...................................................... 25
`
`17 U.S.C. § 105 ................................................. 5, 25, 33
`
`17 U.S.C. § 106 ............................................................. 4
`
`17 U.S.C. § 107 ........................................................... 12
`
`17 U.S.C. § 410(c) ....................................................... 26
`
`28 U.S.C. § 1254(1) ...................................................... 1
`
`2016 Ga. Laws 882, § 54(b) ......................................... 8
`
`2016 Ga. Laws 882-883, § 54 ....................................... 8
`
`2017 Ga. Laws 819, § 54(b) ......................................... 8
`
`2017 Ga. Laws 819-820, § 54 ....................................... 8
`
`2018 Ga. Laws 1123, § 54 ............................................ 8
`
`2018 Ga. Laws 1123, § 54(b) .................................. 8, 27
`
`
`
`VIII
`
`Statutes—Continued:
`
`Page(s)
`
`Act of Mar. 3, 1817, ch. 63, 3 Stat. 376 ..................... 28
`
`Ark. Code Ann. § 1-2-102(b) ...................................... 34
`
`Ga. Code Ann. § 14-2-1302 (West 2018) ................... 27
`
`NY. Real Prop. Tax Law § 503(1)(a)
`(McKinney 2000) .................................................. 17
`
`O.C.G.A. § 1-1-1 ............................................... 7, 27, 34
`
`O.C.G.A. § 1-1-7 ..................................................... 8, 27
`
`O.C.G.A. § 28-9-2(a) ..................................................... 6
`
`O.C.G.A. § 28-9-5(c) ..................................................... 8
`
`O.C.G.A. § 34-9-260 ..................................................... 9
`
`O.C.G.A. § 34-9-260 (2017) .......................................... 9
`
`O.C.G.A. § 34-9-260(3) ................................................. 9
`
`Other Authorities:
`
`Brief of Defendant-Appellee-Cross-Appellant
`First American Real Estate Solutions,
`L.L.C., County of Suffolk v. First Am.
`Real Estate Sols., 261 F.3d 179 (2d Cir.
`2001) (No. 00-9011), 2001 WL 34113786 ............. 17
`
`Carl Malamud, 10 Rules for Radicals,
`https://bit.ly/2LcM9U7 ......................................... 10
`
`Compendium of U. S. Copyright Office
`Practices (3d ed. 2017),
`https://Www.copyright.gov/comp3 .................... 5, 26
`
`
`
`IX
`
`Other Authorities—Continued:
`
`Page(s)
`
`Copyright Law Revision: Report of the
`Register of Copyrights on the General
`Revision of the U.S. Copyright Law, 87th
`Cong., 1st Sess. (H.R. Judiciary Comm.
`Print 1961) ...................................................... 26, 33
`
`Craig A. Joyce, The Rise of the Supreme
`Court Reporter: An Institutional
`Perspective on Marshall Court
`Ascendency, 83 Mich. L. Rev. 1291
`(1985) ........................................................ 28, 29, 30
`
`Craig Joyce, A Curious Chapter in the
`History of Judicature: Wheaton v. Peters
`and the Rest of the Story (of Copyright in
`the New Republic), 42 Hous. L. Rev. 325
`(2005) .................................................................... 30
`
`O.C.G.A., vol. 12, at 1-2 (2017 ed.) ............................ 27
`
`O.C.G.A., vol. 40, at 166-167 (2011 ed.) .................... 27
`
`Public.Resource.Org, Official State Codes,
`Internet Archive, https://bit.1y/2C9KLyQ ............ 10
`
`Terry A. McKenzie, The Making of a New
`Code, 18 Ga. St. B.J. 102 (1982) ........................ 6, 7
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`The State of Georgia and the Georgia Code
`Revision Commission, on behalf of and for the benefit
`of the General Assembly of Georgia,
`respectfully
`petition for a writ of certiorari to review the judgment
`of the United States Court of Appeals for the Eleventh
`Circuit.
`
`OPINIONS BELOW
`
`The opinion of the court of appeals, App., infra, 1a-
`53a, is reported at 906 F.3d 1229. The district court’s
`order granting petitioners’ motion for partial summary
`judgment and denying respondent’s motion for
`summary judgment, App., infra, 54a-7 3a, is reported
`at 244 F. Supp. 3d 1350.
`The district court’s
`permanent injunction order, App., infra, 74a-75a, is
`unreported.
`
`JURISDICTION
`
`The judgment of the court of appeals was entered
`on October 19, 2018. On December 20, 2018, Justice
`Thomas extended the time for filing a certiorari
`petition to March 4, 2019. The jurisdiction of this
`Court is invoked under 28 U.S.C. § 1254(1).
`
`CONSTITUTIONAL AND STATUTORY
`
`PROVISIONS INVOLVED
`
`Pertinent constitutional and statutory provisions
`are set forth in the appendix to this petition. App.,
`infra, 7 6a-84a.
`
`INTRODUCTION
`
`Based on a novel expansion of the doctrine that
`copyright protection is not available for “government
`
`(1)
`
`
`
`2
`
`edicts” such as judicial decisions—an extratextual,
`policy-based rule that this Court has not addressed
`since creating it in the 1800s (and which has generated
`sharp disagreement among the courts of appeals ever
`since)—the Eleventh Circuit invalidated the State of
`Georgia’s copyright in annotations appearing in the
`Official Code
`of Georgia Annotated (“OCGA”),
`consisting of such materials as summaries of judicial
`decisions and state Attorney General opinions. That
`decision
`threatens
`to upend the
`longstanding
`arrangements of Georgia and numerous other states
`that rely on copyright’s economic incentives to create
`and distribute annotations useful
`to guide legal
`research, while ensuring that the states’ laws are
`widely disseminated and easily accessible.
`It also
`conflicts with decisions of the Second, Fifth, Sixth, and
`
`Ninth Circuits. Those courts disagree regarding the
`scope and rationale of the government edicts doctrine,
`but under each of their divergent approaches,
`the
`annotations here would be copyrightable because they
`undisputedly lack “the force of law” (App.,
`infra,
`26a)—the
`essential
`condition for
`applying the
`government edicts doctrine under precedents of this
`Court and other courts of appeals.
`
`Indeed, the Eleventh Circuit’s decision rejecting
`Georgia’s
`infringement claim against
`respondent
`Public.Resource.Org, Inc. (“PRO”) squarely conflicts
`with this Court’s last statement on the doctrine, which
`recognized the copyrightability of annotations in
`Illinois’s official
`reporter of state supreme court
`decisions. See Callaghan v. Myers, 128 US. 617, 645-
`650 (1888). And it is impossible to square with a Sixth
`Circuit decision authored by Circuit Justice Harlan (a
`
`
`
`3
`
`member of the Callaghan Court) and joined by then-
`Judge Taft,
`affirming
`the
`copyrightability
`of
`annotations in a government-approved publication of
`Michigan’s statutes. See Howell v. Miller, 91 F. 129
`(1898).
`
`the
`This Court should grant review to correct
`Eleventh Circuit’s misapplication of
`this Court’s
`decisions and resolve the lower courts’ considerable
`
`confusion regarding the government edicts doctrine,
`which has “proven difficult to apply” and produced
`“arguably inconsistent results” across a broad array of
`cases where “the material in question does not fall
`neatly into the categories of statutes or judicial
`opinions.”
`John G. Danielson, Inc. v. Winchester-
`Conant Props, Inc., 322 F.3d 26, 38 (1st Cir. 2003); see
`also Veeck v. Southern Building Code Congress Int’l,
`Inc., 293 F.3d 791, 796-800 (5th Cir. 2002) (en banc)
`(rejecting tests applied by Second and Ninth Circuits);
`id. at 815-817 (Wiener, J., joined by King, C.J., and
`Higginbotham, Davis, Stewart, and Dennis, JJ.,
`dissenting) (endorsing those tests).
`
`STATEMENT
`
`1. a. Federal copyright protection is a statutory
`right, not a common-law one. See Wheaton v. Peters,
`33 U.S. 591, 661-662 (1834). The Constitution empow-
`ers Congress “[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.” U.S. Const. art. I, § 8, cl. 8.
`To promote and protect “original works of authorship,”
`17 U.S.C. § 102(a), Congress enacted the nation’s first
`copyright statute in 1790.
`It has overhauled federal
`copyright law several times since, with the most recent
`
`
`
`4
`
`comprehensive revision being the Copyright Act of
`1976. See Eldred v. Ashcroft, 537 U.S. 186, 194-195
`(2003).
`
`The statutory scheme grants copyright owners a
`bundle of exclusive rights, including the rights of re-
`production and distribution.
`17 U.S.C. §106. This
`protection only extends to original expressions of
`ideas, not the ideas themselves.
`Id. § 102(b). How-
`ever, even if certain elements in a work are ineligible
`for copyright protection, other elements can still be
`protected. See, e.g., Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340, 348-349 (1991).
`
`b. This case involves the “government edicts” doc-
`trine, a narrow,
`judicially created exception to
`copyright protection for certain works having the force
`of law. That doctrine originated in three cases this
`Court decided in the 1800s—Wheaton v. Peters,
`33 U.S. 591 (1834), Banks v. Manchester, 128 U.S. 244
`(1888), and Callaghan v. Myers, 128 U.S. 617 (1888).
`Those cases, which addressed the copyrightability of
`works reporting court decisions, held that judicial
`opinions are not copyrightable. See Wheaton, 33 U.S.
`at 667-668 (analyzing copyright protection for this
`Court’s first official reporter); Banks, 128 U.S. at 252-
`254 (denying copyright protection for state supreme
`court decisions); Callaghan, 128 U.S. at 647 -650 (rec-
`ognizing copyright
`in original matter authored by
`state supreme court’s official reporter, but not in “the
`judicial opinions” themselves).
`
`Lower courts have extended that holding to state
`statutes. See John G. Danielson, Inc. v. Winchester-
`
`Conant Props, Inc., 322 F.3d 26, 38 (1st Cir. 2003)
`(discussing case law). Accordingly,
`the Copyright
`
`
`
`5
`
`Office, which registers copyrights and administers
`many copyright laws, recognizes a “longstanding pub-
`lic policy” that “government edict [s]” having “the force
`of law” cannot be copyrighted, including “legislative
`enactments, judicial decisions, administrative rulings,
`public ordinances, or similar types of official legal ma-
`terials.” U.S. Copyright Office, Compendium of U.S.
`Copyright Office Practices § 313.6(C)(2) (3d ed. 2017),
`https://www.copyright.gov/comp3 (Compendium).
`
`No statute directly codifies the government edicts
`doctrine.
`Instead, the Copyright Act provides that
`“[c]opyright protection * * * is not available for any
`work of the United States Government,” regardless of
`whether the work constitutes a “government edict.” 17
`U.S.C. § 105 (emphasis added). There is no parallel
`provision denying copyright protection for works of
`state and local governments. See County of Suffolk v.
`First Am. Real Estate Sols., 261 F.3d 179, 187 (2d Cir.
`2001). Therefore, the Copyright Office recognizes that
`a “work that does not constitute a government edict
`may be registered [as copyrighted], even if it was pre-
`pared by an officer or employee of a state,
`local,
`territorial, or foreign government while acting within
`the course of his or her official duties.” Compendium
`§ 313.6(C)(2).
`
`The Copyright Office also recognizes that copyright
`protection is available for “annotations that summa-
`rize or comment upon legal materials issued by a
`federal, state, local, or foreign government, unless the
`annotations themselves have the force of law.” Com-
`
`That
`§ 717.1.
`pendium § 313.6(C)(2); accord id.
`guidance accords with this Court’s decision in Calla-
`ghan, which held that
`annotations of
`judicial
`
`
`
`6
`
`re-
`opinions—including those of a court’s official
`porter—may be copyrighted.
`128 U.S. at 649-650
`(“[T]he reporter of a volume of law reports can obtain
`a copyright for it as an author, and * * * such copyright
`will cover the parts of the book of which he is the au-
`thor, although he has no exclusive right in the judicial
`opinions published.”). And it is consistent with the
`Copyright Act, which provides that “annotations” are
`copyrightable
`as
`“derivative works”—i.e., works
`“based upon one or more preexisting works.” 17 U.S.C.
`§§ 101, 103.
`
`In 1977, the Georgia General Assembly cre-
`2. a.
`ated the Code Revision Commission (“Commission”) to
`assist with recodifying Georgia’s laws for the first time
`in decades.1 App., infra, 7a. See generally Appellant’s
`C.A. App. 256-259; Terry A. McKenzie, The Making of
`a New Code, 18 Ga. St. B.J. 102 (1982), available at
`Appellant’s C.A. App. 264-267. The Commission con-
`tracted with the Michie Company to prepare and
`publish the OCGA. App., infra, 55a.
`
`Under the Commission’s supervision, Michie pre-
`pared a manuscript containing an unannotated
`compilation of Georgia statutes. See App., infra, 55a.
`After the General Assembly voted to adopt that manu-
`script
`as Georgia’s official
`code, Michie added
`annotations, such as summaries of judicial decisions
`and Georgia Attorney General opinions interpreting or
`applying statutory provisions.
`See id.; Appellant’s
`
`1 The Commission is composed of Georgia’s Lieutenant Gover-
`nor, four members of the Georgia Senate, the Speaker of the
`Georgia House of Representatives, four additional House mem-
`bers, and five Georgia State Bar members, including a superior
`court judge and a district attorney. OCGA § 28—9-2(a).
`
`
`
`7
`
`CA. App. 258; McKenzie, 18 Ga. St. B.J. at 103. The
`OCGA took effect in 1982. McKenzie, 18 Ga. St. B.J.
`at 103.
`
`Consistent with the approach taken at the time of
`the OCGA’s original enactment, the Georgia General
`Assembly has never reviewed and voted to approve in-
`dividual OCGA annotations. App., infra, 47a. To the
`contrary, the General Assembly has repeatedly made
`clear that only the statutory portion of the OCGA has
`the force of law, and that the OCGA’s annotations are
`merely research aids lacking any legal effect. The first
`section of the OCGA explains:
`
`The statutory portion of the codification of Geor-
`gia laws prepared by the Code Revision
`Commission and the Michie Company pursuant
`to a contract entered into on June 19, 1978, is
`enacted and shall have the effect of statutes en-
`
`acted by the General Assembly of Georgia. 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 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.”
`
`OCGA§ 1-1-1 (emphasis added). Thus, at the very be-
`ginning of the code,
`the legislature distinguishes
`between the OCGA’s “statutory portion,” which “ha[s]
`the effect of statutes enacted by the General Assem-
`bly,” and “annotations,” which do not. A nearby
`provision likewise states that “[a]ll historical citations,
`
`
`
`8
`
`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.” Id. § 1-1-7 (em-
`phasis added).
`
`The General Assembly also acknowledges annota-
`tions’ lack of legal effect
`in annual “reviser acts”
`making technical changes to the OCGA, such as cor-
`recting typographical errors. PRO’s Mot. for Summ.
`J., Ex. G, § 9.1 (May 17, 2016), ECF No. 29-9 (OCGA
`publication manual); see also OCGA§ 28-9-5(c). Those
`bills reenact the “statutory portion” of the OCGA. E.g.,
`2018 Ga. Laws 1123, §54; 2017 Ga. Laws 819-820,
`§ 54; 2016 Ga. Laws 882-883, § 54. At the same time,
`they expressly provide that the OCGA’s “[a]nnota-
`tions” are “not enacted as statutes,” and thus do not
`have the force of law. E.g., 2018 Ga. Laws 1123,
`§54(b); 2017 Ga. Laws 819, §54(b); 2016 Ga. Laws
`882, § 54(b).
`
`Consistent with this clear statutory language, the
`Georgia Supreme Court has explained that “the inclu-
`sion of annotations in an ‘official’ Code [does] not * * *
`give the annotations any official weight.” Harrison Co.
`v. Code Revision Comm’n, 260 S.E.2d 30, 35 (Ga.
`1979).
`Indeed, PRO itself has noted that “[o]nly the
`laziest student or lawyer would rely on a judicial sum-
`mary [in the OCGA] without reading the actual
`judicial decision.” Appellees’ C.A. App., Tab 29-2, at
`23-24.
`
`b. The Commission now contracts with Matthew
`
`Bender & Co., part of the LexisNexis Group (“Lexis”),
`to maintain, publish, and distribute the OCGA. App.,
`infra, 55a. Like the Commission’s original contract
`with Michie, the current agreement requires Lexis not
`
`
`
`9
`
`only to compile statutory provisions, but also to pre-
`pare “annotations” to those provisions,
`including
`summaries of relevant judicial decisions and Georgia
`Attorney General opinions.2 Id. at 55a-56a (quoting
`agreement). Lexis undertakes a resource- and time-
`intensive editorial process to prepare the annotations
`and ensure their accuracy and stylistic consistency.
`See Appellees’ C.A. App., Tab 30-5; see also App., in-
`fra, 69a (creating annotations requires “tremendous
`amount of work”).
`
`Georgia does not claim copyright in the OCGA’s
`statutory text and numbering. Pl.’s Mem. Supp. Mot.
`for Partial Summ. J. 1 (May 17, 2016), ECF No. 30-1.
`It does, however, hold a “registered copyright in the
`OCGA annotations.” App., infra, 11a; see also Appel-
`lant’s C.A. App. 289 (“work made for hire” provision in
`Georgia-Lexis agreement).
`The agreement grants
`Lexis an exclusive license to publish and sell the
`OCGA in printed, CD-ROM, and online formats. App.,
`
`2 For example, an annotation to OCGA § 34-9-260, which ad-
`dresses workers’ compensation, summarizes a decision applying
`the statute as follows:
`
`Average weekly wage calculated correctly. — Award
`of workers’ compensation benefits was upheld because
`there was some evidence to support the administrative
`law judge’s calculation of the claimant’s average weekly
`wage under O.C.G.A. § 34-9-260(3) based on the claim-
`ant’s testimony that the claimant was supposed to work
`from the car wash’s opening until its close. Cho Carwash
`Property, LLC v. Everett, 326 Ga. App. 6, 755 S.E.2d 823
`(2014).
`
`OCGA§ 34-9-260 (2017) (case note); see also Brief of Amicus Cu-
`riae Matthew Bender & 00., Ex. 2 (June 27, 2016), ECF No. 38-2
`(reproducing OCGA§ 10-7-21’s annotations).
`
`
`
`10
`
`infra, 7a-8a. The Commission receives royalties on the
`CD-ROM and online versions.
`Id. at 8a. The agree-
`ment also sets price controls: As of 2016, the price for
`a full set of printed OCGA volumes was capped at
`$404—less than one-sixth the cost of West Publishing’s
`competing annotated version of the Georgia code
`($2570).
`Id. at 7a; Appellees’ C.A. App., Tab 33-1, at
`20-21.
`
`To ensure that Georgia’s laws are readily accessible
`by the general public, the agreement requires Lexis to
`publish the code’s unannotated statutory text online,
`free of charge. App., infra, 7a; Appellant’s C.A. App.
`189. The CD-ROM version of the OCGA—complete
`with annotations—is also available to the general pub-
`lic without charge “at over 60 state and county-
`operated facilities throughout Georgia, such as librar-
`ies and universities.” App., infra, 8a.
`
`3. Respondent PRO is a non-profit corporation op-
`erated by Carl Malamud.
`Its primary activity is
`publishing government documents online, including
`several state codes, such as Arkansas’s, Colorado’s,
`Idaho’s, and Mississippi’s, and encouraging the public
`to access them for free. See Carl Malamud, 10 Rules
`for Radicals 1] 120, https://bit.ly/2LcM9U7; Public.Re-
`source.Org, Official State Codes, Internet Archive,
`https://bit.ly/2C9KLyQ (last visited Feb. 27, 2019).
`Despite its knowledge of Georgia’s registered copy-
`right, PRO purchased 186 printed volumes and
`supplements of the OCGA, scanned them, and posted
`them online. App., infra, 8a-9a. PRO also distributed
`digital copies to Georgia legislators. Id. at 9a.
`
`After PRO refused to comply with cease and desist
`letters, Georgia filed an infringement suit in the U.S.
`
`
`
`11
`
`District Court for the Northern District of Georgia.
`App., infra, 9a. PRO counterclaimed for a judgment of
`non-infringement.
`Ibid. PRO continued reproducing
`the OCGA after Georgia filed suit, publishing the 2015
`volumes and supplements on its website. Id. at 58a.
`
`4. a. On cross-motions for summary judgment, the
`district court held that the OCGA annotations were
`
`copyrightable, PRO’s activities constituted infringe-
`ment, and Georgia was entitled to injunctive relief.
`App., infra, 65a, 73a. The district court affirmed the
`principle, established in Wheaton, Banks, and Calla-
`ghan, that “government documents having the force of
`law are uncopyrightable.” Id. at 63a. But it explained
`that the OCGA annotations were copyright eligible be-
`cause the “commentary portions” of the OCGA are “not
`enacted into law by the Georgia legislature and do[]
`not have the force of law.” Ibid. The court cited the
`
`Copyright Act’s and the Copyright Office’s express
`recognition that “annotations” are copyrightable, as
`well as the “long line of cases recogniz[ing] copyright
`protection for annotated cases and statutes,” including
`Callaghan. Id. at 61a-62a. Indeed, PRO itself “admit-
`ted that annotations in an unofficial reporter would be
`copyrightable.” Id. at 62a. The court concluded that
`nothing in Georgia law or the agreement between
`Lexis and the Commission “transform [ed] copyrighta-
`ble material into non-copyrightable material.” Ibid.
`To the contrary, treating the annotations and statu-
`tory text as “one uncopyrightable unit” would be “in
`direct contradiction to current Georgia law,” which ex-
`pressly establishes that the annotations lack “the force
`of law.” Id. at 62a-64a.
`
`
`
`12
`
`b. The district court also rejected PRO’s reliance on
`the merger doctrine, which denies copyright protection
`where “there is only one or so few ways of expressing
`an idea that protection of the expression would effec-
`tively accord protection to the idea itself.” B UC Int’l
`Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1142
`
`(11th Cir. 2007) (citation omitted). The district court
`concluded that because there are a “multitude of ways
`to write a paragraph summarizing a judicial decision,
`and further, a multitude of ways to compile the differ-
`ent annotations throughout the O.C.G.A.,” the “merger
`doctrine is inapplicable.” App., infra, 65a.
`
`The district court likewise rejected PRO’s “fair use”
`defense. The court analyzed the statutory fair use fac-
`tors, see 17 U.S.C. §107, and concluded that PRO’s
`decision to “cop[y] every word of the annotations ver-
`batim and post[] them free of charge” was not fair use.
`App., infra, 72a. The court reasoned that “it is inevi-
`table that [the] market[]” for the OCGA would “be
`substantially adversely impacted” by PRO’s conduct,
`for the straightforward reason that “people would be
`less likely to pay for annotations when they are avail-
`able for free online.” Id. at 71a.
`
`5. a. The Eleventh Circuit reversed. While ac-
`
`knowledging that “[t]he question is a close one” and
`“important considerations of public policy are at stake
`on either side,” the court held that the OCGA annota-
`tions are not copyrightable under the government
`edicts doctrine.3 App., infra, 2a, 4a. It acknowledged
`
`3 Because the Eleventh Circuit reversed based on the govern-
`ment edicts doctrine, it “ha[d] no occasion to address” PRO’s
`merger and fair use arguments. App., infra, 4a-5a.
`
`
`
`13
`
`that courts of appeals have split on the breadth of the
`government edicts doctrine since this Court “last ad-
`dressed the question in 1888.” Id. at 12a-13a, 17a-18a.
`While some courts have expanded the doctrine, the
`Eleventh Circuit observed, “other courts have declined
`to extend the rule in other, related contexts.” Id. at
`17a.
`
`Because of this lack of consensus in the lower
`
`courts, and because the “foundations of the case law
`establishing this doctrine are far from clear,” the Elev-
`enth Circuit concluded it was necessary to “resort to
`first principles” to resolve the “profound and difficult
`issues” it viewed this case as presenting. App., infra,
`2a-3a, 12a. The court interpreted the nineteenth-cen-
`tury decisions of Wheaton, Banks, and Callaghan—
`this Court’s only decisions on the subject—to establish
`that public “authorship” is the basis for the govern-
`ment edicts doctrine, id. at 12a, such that “any work of
`which the People are the constructive authors is in-
`trinsically public domain material and is
`freely
`accessible to all so that no valid copyright can ever be
`held in it,” id. at 19a. Criticizing the district court for
`“relying * * * on a bright line distinction between
`edicts that have the force of law and those that do not,”
`the court of appeals determined that “there exists a
`zone of indeterminacy” where, even if a work “may not
`be characterized as law,” “policy interests” require
`that it be treated as such for purposes of copyright. Id.
`at 24a-25a.
`
`b. In determining that the annotations here were
`“sufficiently law-like” to be attributable to the con-
`structive authorship of the people of Georgia, App.,
`infra, 26a,
`the court analyzed three factors: who
`
`
`
`14
`
`created the annotations, see id. at 25a-26a, whether
`the annotations are “authoritative,” id. at 38a, and
`“the process by which the annotations were created,”
`id. at 47a.
`
`i. While the court of appeals acknowledged that
`“the annotations were initially prepared by a private
`party” (Lexis), and “annotations created by a private
`party generally can be copyrighted,” App., infra, 2a,
`26a-27a, it concluded that this case fell outside that
`general rule because, in its view, “the Georgia General
`Assembly is the driving force behind [the annotations’]
`creation,” id. at 26a. The court emphasized that the
`agreement between the Commission and Lexis con-
`tains instructions for preparing the annotations, id. at
`26a-28a, that the Commission retains editorial control
`over the OCGA’s