throbber

`
`No. 18-1150
`================================================================================================================
`
`In The
`Supreme Court of the United States
`
`---------------------------------  ---------------------------------
`
`STATE OF GEORGIA, et al.,
`
`Petitioners,
`
`v.
`
`PUBLIC.RESOURCE.ORG, INC.,
`
`Respondent.
`
`---------------------------------  ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Eleventh Circuit
`
`---------------------------------  ---------------------------------
`
`BRIEF OF AMICUS CURIAE INTERNET
`ASSOCIATION SUPPORTING RESPONDENT
`
`---------------------------------  ---------------------------------
`
`JOSEPH C. GRATZ
`Counsel of Record
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`jgratz@durietangri.com
`
`Counsel for Amicus Curiae
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`TABLE OF CONTENTS
`
`4
`
`Page
`INTEREST OF THE AMICUS CURIAE .............
`1
`SUMMARY OF THE ARGUMENT .....................
`2
`ARGUMENT ........................................................
`4
`
`I. Unless parties other than Lexis are per-
`mitted to host the OCGA, the text of the
`OCGA cannot serve its proper role in in-
`forming the public .....................................
` II. Businesses need certainty regarding
`which sources of government data may be
`subject to copyright ...................................
` III. Respondent’s proposed rule should be
`adopted because petitioners’ “force of law”
`rule is underinclusive and difficult to ad-
`minister ..................................................... 11
` IV. Neither the Supremacy Clause nor the
`Takings Clause is relevant here ................ 14
`A. The Supremacy Clause is irrelevant
`because the question is entirely one of
`federal copyright law ........................... 14
`B. The Takings Clause is far afield from
`the questions here ............................... 17
`CONCLUSION ..................................................... 18
`
`
`
`9
`
`

`

`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Allen v. Jones, 269 Ga. App. 607 (2004) ..................... 13
`Banks v. Manchester, 128 U.S. 244 (1888) ....... 4, 11, 17
`Callaghan v. Myers, 128 U.S. 617 (1888) ............... 4, 11
`Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691
`(1984) ....................................................................... 15
`Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ................ 9
`Reno v. Am. Civil Liberties Union, 521 U.S. 844
`(1997) ......................................................................... 4
`Ruckelshaus v. Monsanto Co., 467 U.S. 986
`(1984) ....................................................................... 16
`Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225
`(1964) ....................................................................... 14
`Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173
`(1942) ....................................................................... 14
`Sperry v. Florida ex rel. Fla. Bar, 373 U.S. 379
`(1963) ....................................................................... 15
`
`
`STATUTES
`17 U.S.C. § 504(c)(1) ...................................................... 9
`OCGA § 1-1-1 ................................................................ 5
`OCGA § 1-1-8(d) ............................................................ 6
`OCGA § 8-2-20(9)(B)(i)(I) ............................................. 7
`OCGA § 8-2-25(a) .......................................................... 7
`
`

`

`iii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`OCGA § 10-5-2(a)(26) ................................................. 13
`OCGA § 11-9-521(a) .................................................... 12
`Copyright Act § 201(e) .......................................... 15, 16
`
`RULES AND REGULATIONS
`U.S. Sup. Ct. R. 37.6 ...................................................... 1
`
`OTHER AUTHORITIES
`Amazon Web Services Open Data Registry, at
`https://registry.opendata.aws..................................... 1
`Francis M. Nevins, Jr., When an Author’s Mar-
`riage Dies: The Copyright-Divorce Connection,
`37 J. Copyright Soc’y U.S.A. 382 (1990) .................. 16
`Georgia Attorney General, Unofficial Opinions,
`at https://law.georgia.gov/opinions/unofficial ......... 10
`Georgia State Amendments to the International
`Building Code (2012 Edition), at https://www.dca.
`ga.gov/sites/default/files/2018_ibcamendments.
`pdf .............................................................................. 8
`Google Cloud Public Datasets, at https://cloud.
`google.com/public-datasets/ ...................................... 1
`Google Patents, at https://patents.google.com/ ............ 9
`International Building Code § 503.1 ........................... 8
`Microsoft Azure Open Datasets, at https://azure.
`microsoft.com/en-us/services/open-datasets/ ........ 1
`Nebraska Uniform Commercial Code § 9-521(a) ...... 13
`
`

`

`1
`
`INTEREST OF THE AMICUS CURIAE1
`Internet Association represents roughly forty
`
`leading technology companies. Its membership in-
`cludes a broad range of Internet companies, from
`travel sites and online marketplaces to social network-
`ing services and search engines. Internet Association
`advances public policy solutions that strengthen and
`protect Internet freedoms, foster innovation and eco-
`nomic growth, and empower small businesses and the
`public. It respectfully submits this Brief of Amicus Cu-
`riae in Support of Respondent to encourage this Court
`to consider the importance of authoritative govern-
`ment data to the modern, innovative Internet and its
`users.
`
`In particular, a number of Internet Association
`
`members make open government data available for
`public use.2 Increased certainty regarding the types of
`government information whose dissemination can be
`controlled using copyright, and the types of govern-
`ment information that are available for public use, will
`
`
`1 Counsel for the parties have consented in writing to the fil-
`
`ing of this brief. Pursuant to Rule 37.6, no counsel for either party
`had any role in authoring this brief in whole or in part, and no
`party other than the named amicus or its members has made any
`monetary contribution toward the preparation and submission of
`this brief.
`2 See, e.g., Google Cloud Public Datasets, at https://cloud.
`
`google.com/public-datasets/; Microsoft Azure Open Datasets, at
`https://azure.microsoft.com/en-us/services/open-datasets/; Amazon
`Web Services Open Data Registry, at https://registry.opendata.aws.
`
`

`

`2
`
`permit the members of the Internet Association and
`their customers to better serve and inform the public.
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF THE ARGUMENT
`The Internet facilitates robust debate—and robust
`
`debate, in our democracy, should be informed debate.
`Authoritative sources, and especially authoritative
`government documents, are important inputs to an in-
`formed debate.
`
`Granting exclusive rights to choose who may dis-
`
`seminate those documents, and how, effectively with-
`draws them from the public sphere where they are so
`critically needed. The Court should confirm that texts
`imbued with government authority that help the pub-
`lic to understand their legal obligations cannot be sub-
`ject to copyright.
`
`The OCGA presents a vivid example of the im-
`
`portance of this rule. The only official version of Geor-
`gia’s statutes appears on only one website—that of the
`state’s contractor, Lexis. But that version, because of
`technical choices made by that contractor, cannot be
`searched using Internet search engines, making it
`harder for citizens to find the official version of the law.
`Even worse, some of Georgia’s legal rules are incorpo-
`rated into the OCGA by reference, and the organiza-
`tion that promulgates those laws prevents citizens
`from copy-and-pasting or printing those laws without
`payment of a fee. With a clear rule against copyright in
`such authoritative legal documents, others will be able
`
`

`

`3
`
`to post the official version of the law on fully-function-
`ing websites.
`
`Clear and predictable rules regarding which texts
`
`may be copyrighted and which texts belong to the pub-
`lic will encourage innovators to make authoritative le-
`gal materials accessible to citizens in ways that help
`them find and analyze those texts and understand
`their legal obligations. Because copyright provides for
`massive statutory damages even for unintentional or
`unknowing infringement, uncertainty in this area pre-
`vents investment in the creation of those tools.
`
`Limiting the “government edicts” doctrine to texts
`
`that themselves impose binding legal obligations does
`not provide a predictable or workable rule. Many texts
`that are important to understanding one’s legal obliga-
`tions do not fit that description. For that reason, the
`Court should hold that the “government edicts” doc-
`trine allows unrestricted dissemination and use of
`texts imbued with government authority that help the
`public to understand their legal obligations.
`
`Arguments made by other amici suggesting that
`
`the Supremacy Clause or the Takings Clause stand in
`the way are without merit. The Court should confirm
`that texts imbued with government authority that
`help the public to understand their legal obligations
`cannot be subject to copyright.
`
`
`
`---------------------------------  ---------------------------------
`
`
`
`
`

`

`4
`
`ARGUMENT
`I. Unless parties other than Lexis are permit-
`ted to host the OCGA, the text of the OCGA
`cannot serve its proper role in informing
`the public.
`In this case, this Court has its first opportunity
`
`since 1888 to address the scope of the “government
`edicts” limitation on copyright. Since the time of Banks
`and Callaghan, the way that people access the laws
`that govern them has evolved. Today, citizens are more
`likely to seek out information by searching on Bing or
`Google than by visiting a law library. Technology offers
`today’s citizens unparalleled tools to gather, analyze,
`understand, and disseminate information. An essen-
`tial input to those tools—and to citizens’ resulting un-
`derstanding—is authoritative
`information
`from
`trusted sources.
`
`The Internet empowers individuals to “become a
`
`town crier with a voice that resonates farther than it
`could from any soapbox,” Reno v. Am. Civil Liberties
`Union, 521 U.S. 844, 870 (1997). But just as important
`as the potential to lift up the voices of the citizenry is
`the Internet’s potential to facilitate those citizens’ ac-
`cess to authoritative, trustworthy information. Ready
`access to trustworthy
`information provides the
`grounding for an informed “marketplace of ideas” that
`can yield more of the benefits, and fewer of the draw-
`backs, that come with “encouraging freedom of expres-
`sion in a democratic society.” Id. at 885. And ready
`access to trustworthy information can help to douse
`
`

`

`5
`
`flare-ups of incorrect or untrustworthy information
`more quickly and more effectively.
`
`Authoritative government documents play an im-
`
`portant role as a source of authoritative information—
`both about the law and about other matters of public
`concern. Granting exclusive rights to decide who may
`disseminate that authoritative information, and how,
`effectively withdraws that information from the
`sphere where it is perhaps most needed: the uninhib-
`ited, robust, and wide-open debate on public issues
`that occurs, in venues both lofty and lowly, on today’s
`Internet.
`
`And that brings us to the question before the
`
`Court in this case: whether the only official version of
`Georgia’s statutes may be subject to the power that
`copyright law gives a copyright holder to control
`whether and how a copyrighted work may be dissemi-
`nated. Wielding that power, Georgia and its contractor,
`Lexis, have made choices that effectively withdraw the
`official version of those statutes from being meaning-
`fully accessible on the Internet: the text of the only of-
`ficial version of Georgia’s statutes is not searchable
`through tools like Bing or Google, simply because of
`the technical choices that Georgia’s contractor made.3
`
`
`3 For example, the text of OCGA § 1-1-1 cannot be found by
`
`a search engine on the site that hosts the OCGA. See, e.g.,
`https://perma.cc/QU7B-YBLA (Bing search for the phrase “codifi-
`cation shall be merged with annotations” on the advance.lexis.
`com site that hosts the OCGA); https://perma.cc/RDN3-HZL3
`(same search on Google).
`
`

`

`6
`
`There is no official version of Georgia’s statutes
`
`that can be searched through the most popular search
`engines, since Lexis has chosen to host that version in
`a way that effectively excludes it from searches. But
`more critically, that is because nobody other than Lexis
`is permitted to post the official version of Georgia’s
`statutes; even the state of Georgia itself doesn’t host a
`copy on its own website. According to Georgia, copy-
`right prevents anyone else from posting a version of
`the OCGA that can be located through search engines.
`
`To be sure, others may have posted many of the
`
`same words—but those versions are not the official
`version privileged under Georgia law. They are not the
`authoritative version; only the OCGA is. And the
`OCGA provides that “any citation in any public or pri-
`vate document, writing, or other instrument to a law of
`the State of Georgia which has been codified in the Of-
`ficial Code of Georgia Annotated shall be construed to
`be a reference to such law as contained in the Official
`Code of Georgia Annotated.” OCGA § 1-1-8(d) (empha-
`sis added).
`
`Because federal legal materials are unambigu-
`
`ously free from copyright, there is a wide variety of
`ways to access authoritative copies: through the Cor-
`nell Legal Information Institute, on FindLaw, or on a
`variety of websites operated by the federal govern-
`ment. But state and local materials—even those that
`unambiguously carry the force of law—are frequently
`found only on a single contractor’s website. This places
`the public’s access to the only website that hosts the
`official version of the law at the mercy of business and
`
`

`

`7
`
`technical choices made by a contractor like Lexis for its
`own commercial reasons.
`
`Some technical choices made by such contractors
`
`impose even more serious fetters on the public’s ability
`to access and effectively use legal texts than exclusion
`from search engines. For example, Georgia’s laws gov-
`erning buildings are not contained in the OCGA in
`haec verba; instead, the OCGA enacts those laws by
`adopting model codes. One such law is the Interna-
`tional Building Code, a model code published by the
`International Code Council (“ICC”).4 The State of Geor-
`gia does not make those laws available to its citizens
`on its website; instead, it directs citizens to the ICC for
`copies.
`
`And while the ICC hosts a copy of the Interna-
`
`tional Building Code on its website, it goes even farther
`than excluding the law from being found using search
`engines: ICC takes special technical measures to pre-
`vent Georgia’s citizens from copying-and-pasting the
`text of their laws or printing out a copy of any portion
`of those laws. Instead, ICC chooses to charge for the
`privilege. For example, the text of Georgia’s law gov-
`erning how many stories tall one may build a particu-
`lar type of building appears not on any website
`
`
`4 OCGA § 8-2-25(a) (“On and after July 1, 2004, the state
`
`minimum standard codes enumerated in subdivisions
`. . .
`(9)(B)(i)(I) through (9)(B)(i)(VIII) of Code Section 8-2-20 shall
`have state-wide application and shall not require adoption by a
`municipality or county.”); OCGA § 8-2-20(9)(B)(i)(I) (listing “In-
`ternational Building Code (ICC)” among the “state minimum
`standard codes”).
`
`
`

`

`8
`
`operated by the State of Georgia, but on the website
`operated by the ICC, to which the state directs citizens
`seeking that law.5 When one presses the “Print” button
`on the ICC’s web page containing that provision, one’s
`printer spits out not the text of the law, but the follow-
`ing text:
`
`You must own a premiumACCESS subscrip-
`tion to this title in order to print the content
`and use enhanced features. Please login if you
`own this title and are seeing this message.6
`
`A softcover copy of the law in question costs $147.00,
`and a “premiumACCESS” subscription to it costs $9.83
`per month.7
`
`This is not how the law is supposed to work. The
`
`public’s access to the official versions of the laws that
`govern them should not depend on technical choices
`made by third-party contractors for their own commer-
`cial reasons. A citizen’s ability to search for the official
`
`
`
`5 International Building Code § 503.1 (2012), adopted by
`
`OCGA § 8-2-25(a); see Georgia State Amendments to the Interna-
`tional Building Code (2012 Edition), at https://www.dca.ga.gov/
`sites/default/files/2018_ibcamendments.pdf (identifying “Build-
`ing Construction Types including allowable height” as an area on
`which “The INTERNATIONAL BUILDING CODE, 2012 Edition,
`published by the International Code Council . . . shall constitute
`the official Georgia State Minimum Standard Building Code.”).
`6 https://codes.iccsafe.org/content/IBC2012P13/chapter-5-
`
`general-building-heights-and-areas#IBC2012P13_Ch05_Sec503
`(after “Print” function invoked).
`7 https://shop.iccsafe.org/codes/2012-international-codes/2012-
`
`international-building-code-1.html.
`
`

`

`9
`
`version of the law should not depend on whether Lexis
`has chosen to exclude the law from search engines. A
`citizen’s ability to copy-and-paste the law into a legal
`brief should not depend on whether a private company
`has decided to disable that functionality. And a citi-
`zen’s ability to print the citizen’s own copy of a legal
`provision should not depend on whether a citizen has
`paid a particular private party the monthly fee they
`have chosen to demand.
`
`The way to vindicate every citizen’s right to access
`
`and use the official version of the law is to confirm
`every citizen’s right to speak the official version of the
`law. By securing the public’s right to speak the law, this
`Court can ensure that any private party’s attempt to
`limit the free access to and use of the law is neutered
`by competition. If Lexis or the ICC or any other private
`party chooses to place technological manacles upon the
`law, competitors will be able to unlock them.
`
`
`II. Businesses need certainty regarding which
`sources of government data may be subject
`to copyright.
`“Because copyright law ultimately serves the pur-
`
`pose of enriching the general public through access to
`creative works, it is peculiarly important that the law’s
`boundaries be demarcated as clearly as possible.”
`Fogerty v. Fantasy, Inc., 510 U.S. 517, 517–18 (1994).
`And that is particularly true because copyright law
`provides for statutory damages of up to $30,000 per
`
`

`

`10
`
`work even in the case of inadvertent or unknowing in-
`fringement. 17 U.S.C. § 504(c)(1).
`
` Where many works are involved, the damages can
`quickly become astronomical. For example, someone
`who published each of the Unofficial Advisory Opin-
`ions on points of Georgia law issued by the Georgia At-
`torney General since 1992 could be liable for up to
`$6,060,000 in statutory damages if those works are
`subject to copyright, even if they reasonably believed
`that their acts were not infringing.8 In the absence of
`a clear rule that addresses the full range of texts im-
`bued with government authority that help the public
`to understand their legal obligations, businesses will
`not invest in making those texts more available to cit-
`izens.
`
` While the work of Public Resource in making legal
`texts freely available has been impressive, there is
`more that can be done to make those texts accessible
`and understandable to the public. Legal certainty will
`permit other enterprises to provide even more robust
`tools and information. See, e.g., Google Patents, at
`https://patents.google.com/ (providing free tools for
`searching and analyzing patents).
`
`
`
`
`
`
`
`8 There are 202 such unofficial advisory opinions. See Georgia
`
`Attorney General, Unofficial Opinions, at https://law.georgia.gov/
`opinions/unofficial.
`
`

`

`11
`
`III. Respondent’s proposed rule should be
`adopted because petitioners’ “force of law”
`rule is underinclusive and difficult to ad-
`minister.
`This case is in some ways remarkable for how
`
`much the parties agree upon. Everyone appears to
`agree that, at minimum, “works which in and of them-
`selves set forth binding legal obligations,” SIIA Br. at
`10, cannot be subject to copyright. Everyone appears to
`agree that Banks and Callaghan do not announce a
`clear and administrable rule for when works cannot be
`subject to copyright. And everyone appears to agree
`that this Court should take the opportunity to an-
`nounce such a clear and administrable rule.
`
`But we part with the petitioners (and with the
`
`SIIA) when it comes to what rule best serves that end
`while preventing the law from, in fact or in effect, being
`subject to copyright. The SIIA argues that only “works
`which in and of themselves set forth binding legal obli-
`gations” should be uncopyrightable. This rule is nei-
`ther as straightforward nor as reasonable as it might
`appear.
`
`Not all sources of legal authority set forth binding
`
`legal obligations. Some (like unofficial advisory opin-
`ions of the Georgia attorney general) set forth non-
`binding statements of legal obligations. Others (like
`nonprecedential appellate opinions) help the public to
`understand their legal obligations even though they
`may not define what those obligations are. And regard-
`less of one’s views on the utility of legislative history
`
`

`

`12
`
`in determining those obligations, it is difficult to see
`why legislators or governments should be able to use
`copyright to control who is permitted to disseminate
`materials that could reasonably form the basis for ar-
`guments about statutory interpretation.
`
`That is why this Court should adopt respondent’s
`
`proposed rule: texts imbued with government author-
`ity that help the public to understand their legal obli-
`gations cannot be subject to copyright. That rule
`cleanly, predictably, and correctly resolves the full
`range of likely scenarios.
`
`Text that carries the force of law is thereby imbued
`
`with government authority and is the first and best
`source for understanding legal obligations. That is true
`whether the text was written by a legislator or a staffer
`or a lobbyist or an industry group, and it is true
`whether the text appears in the statute verbatim or is
`incorporated by reference.
`
`For example, Georgia’s laws governing secured
`
`transactions provide that an initial financing state-
`ment is to be set forth “in the form and format set forth
`in the final official text of the 2010 amendments to Ar-
`ticle 9 of the Uniform Commercial Code promulgated
`by the American Law Institute and the National Con-
`ference of Commissioners on Uniform State Laws, and
`such form and format are incorporated into this sub-
`section by reference.” OCGA § 11-9-521(a). The form
`and format specifications set forth in the referenced
`
`

`

`13
`
`document are imbued with legal authority by that stat-
`utory text, just as if they were set forth verbatim.9
`
`At the same time, respondent’s rule clearly per-
`
`mits copyright in private treatises and annotations
`(since they are not imbued with government authority)
`and in state-government works like park maps and
`guidebooks (since they do not help the public to under-
`stand their legal obligations).
`
`And respondent’s rule prevents the confusion that
`
`we see in this case about the role of the annotations in
`question in Georgia’s legal regime. Whether or not the
`legislature intends them to be binding, it’s clear that
`at least some Georgia courts give them special weight.
`See, e.g., Allen v. Jones, 269 Ga. App. 607, 609 n.6 (2004)
`(“See Notes to OCGA § 10-5-2(a)(26).”).10 And those
`who are subject to the jurisdiction of those Georgia
`courts will need to refer to those annotations in order
`to understand what those prior decisions mean in prac-
`tice.
`
`
`9 Indeed, other states set forth the specifications verbatim
`
`rather than incorporating them by reference. See, e.g., Nebraska
`Uniform Commercial Code § 9-521(a), at https://nebraskalegislature.
`gov/laws/ucc.php?code=9-521 (setting forth form and format spec-
`ifications verbatim).
`10 The case relates to whether Georgia’s revision of the defi-
`
`nition of “security” in 2002 to include viatical investments meant
`that viatical investments were not “securities” under Georgia law
`in 1998, at the time of the alleged wrongdoing. The opinion uses
`this citation for the defense’s central proposition—that “Effective
`July 1, 2002, the General Assembly amended the act to include
`the term ‘viatical investment’ in the list of instruments that con-
`stitute securities.” Id.
`
`

`

`14
`
`IV. Neither the Supremacy Clause nor the
`Takings Clause is relevant here.
`In its amicus brief, the International Code Council
`
`raises the Supremacy Clause and the Takings Clause
`as reasons this Court “should steer well clear of any
`ruling that would carry negative implications for the
`rights of private copyright owners.” ICC Br. at 9. As
`discussed above, this Court should take the oppor-
`tunity to establish a clear standard for when laws and
`related official legal materials can be subject to copy-
`right, and when they cannot. Concerns about the Su-
`premacy Clause and the Takings Clause need not
`detain the Court in that task.
`
`
`
`A. The Supremacy Clause is irrelevant be-
`cause the question is entirely one of fed-
`eral copyright law.
`ICC is, of course, correct that federal copyright and
`
`patent statutes are the supreme law of the land, and
`“[w]hen state law touches upon the area of these fed-
`eral statutes, it is ‘familiar doctrine’ that the federal
`policy ‘may not be set at naught, or its benefits denied’
`by the state law.” Sears, Roebuck & Co. v. Stiffel Co.,
`376 U.S. 225, 229 (1964) (quoting Sola Elec. Co. v. Jef-
`ferson Elec. Co., 317 U.S. 173, 176 (1942)).
`
`But ICC is wrong that this has anything to do with
`
`the rule that the law cannot be subject to copyright.
`When particular text is imbued with government au-
`thority, it is federal copyright law, interpreted in light
`of
`federal constitutional principles, that denies
`
`

`

`15
`
`copyright protection to that text. A state enactment
`purporting to deny copyright to a particular federally-
`copyrighted text would be preempted, to be sure, just
`as would a state enactment purporting to grant copy-
`right to a text that was in the public domain under fed-
`eral copyright law. But by enacting the OCGA as the
`only official version of Georgia’s statutes, Georgia did
`not make a pronouncement of copyright law. Instead,
`it made a pronouncement of Georgia law that has the
`effect, by operation of federal copyright rules, of placing
`that text beyond the reach of copyright.
`
`Neither of the cases ICC cites support its argu-
`
`ment. In Capital Cities Cable, Inc. v. Crisp, 467 U.S.
`691, 710 (1984), this Court held that a state-law re-
`quirement to delete certain commercials from rebroad-
`casts of television programming conflicted with a
`Copyright Act requirement that commercials in those
`rebroadcasts be left intact. And in Sperry v. Florida ex
`rel. Fla. Bar, 373 U.S. 379, 404 (1963), this Court held
`that a Florida law requiring a state law license in order
`to practice before the United States Patent and Trade-
`mark Office conflicted with the federal law expressly
`permitting certain qualified non-lawyers to do so. Nei-
`ther of those cases has anything to do with a situation
`where a provision of state law has a collateral conse-
`quence, by application of federal law, on the copyright
`status of a text.
`
`Nor does ICC’s reference to section 201(e) of the
`
`Copyright Act withstand even the lightest scrutiny.
`That section provides:
`
`

`

`16
`
`When an individual author’s ownership of a
`copyright, or of any of the exclusive rights un-
`der a copyright, has not previously been
`transferred voluntarily by that individual au-
`thor, no action by any governmental body or
`other official or organization purporting to
`seize, expropriate, transfer, or exercise rights
`of ownership with respect to the copyright, or
`any of the exclusive rights under a copyright,
`shall be given effect under this title, except as
`provided under title 11.
`
`This provision was enacted to prevent totalitarian gov-
`ernments from suppressing dissent by expropriating
`and then exercising the copyrights in dissident citi-
`zens’ writings.11 It is triply irrelevant to any question
`about the copyrightability of the law: there is no “indi-
`vidual author” at issue (but instead a government or
`private entity that has written a text that has been
`adopted as an official legal document); the copyrights
`at issue have been “previously transferred” (here, to
`the State of Georgia; in ICC’s case, to ICC); and there
`is no attempt to “seize, expropriate, transfer, or exer-
`cise rights of ownership” in a copyright (but instead the
`conclusion that copyright does not extend to certain
`documents). Section 201(e) is no impediment to recog-
`nition that texts imbued with government authority
`that help the public to understand their legal obliga-
`tions cannot be subject to copyright.
`
`
`11 See Francis M. Nevins, Jr., When an Author’s Marriage
`
`Dies: The Copyright-Divorce Connection, 37 J. Copyright Soc’y
`U.S.A. 382, 383 (1990) (discussing history of and impetus for
`§ 201(e)).
`
`

`

`17
`
`B. The Takings Clause is far afield from
`the questions here.
`ICC argues that the Court should shrink from a
`
`bright-line rule regarding whether authoritative legal
`materials can be subject to copyright on the ground
`that such a holding may raise Takings Clause issues.
`It will not, for two reasons.
`
`First, the question whether authoritative legal
`
`materials can be subject to copyright does not depend
`on whether the government is obligated to compensate
`private parties whose texts are adopted. That is simply
`a separate question. It can both be true that govern-
`ment adoption of a text as law extinguishes copyright
`and that the prior copyright holder of that text is due
`compensation as a result of that adoption.
`
`Second, the government is not, in fact, obligated to
`
`compensate private parties whose texts are adopted, at
`least where those private parties sought out the adop-
`tion. Having “come to the nuisance,” and having known
`that the consequence of such adoption was that their
`work would become “free for publication to all,” Banks
`v. Manchester, 128 U.S. 244, 253 (1888), they cannot be
`heard to demand compensation on the ground that the
`government did what they asked the government to do.
`See, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986,
`1006 (1984) (no takings claim where party was “on no-
`tice” of the consequences of a government submission
`for its intellectual-property rights).
`
`---------------------------------  ---------------------------------
`
`
`

`

`18
`
`CONCLUSION
`The judgment of the court of appeals should be af-
`
`firmed, and this Court should confirm that texts im-
`bued with government authority that help the public
`to understand their legal obligations cannot be subject
`to copyright.
`
`Respectfully submitted,
`JOSEPH C. GRATZ
`Counsel of Record
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`Counsel for Amicus Curiae
`
`
`
`

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