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 CURRENT AND FORMER
`GOVERNMENT OFFICIALS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENT
`
`
`
`SARANG VIJAY DAMLE
` Counsel of Record
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`sy.damle@lw.com
`
`ANDREW M. GASS
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111
`
`JESSICA STEBBINS BINA
`LATHAM & WATKINS LLP
`10250 Constellation Blvd.
`Suite 1100
`Los Angeles, CA 90067
`Counsel for Amici Curiae
`
`
`
`
`
`
`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 CURRENT AND FORMER
`GOVERNMENT OFFICIALS AS AMICI CURIAE
`IN SUPPORT OF RESPONDENT
`
`
`
`SARANG VIJAY DAMLE
` Counsel of Record
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`sy.damle@lw.com
`
`ANDREW M. GASS
`LATHAM & WATKINS LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111
`
`JESSICA STEBBINS BINA
`LATHAM & WATKINS LLP
`10250 Constellation Blvd.
`Suite 1100
`Los Angeles, CA 90067
`Counsel for Amici Curiae
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES ........................................... iii
`INTEREST OF AMICI CURIAE ...................................... 1
`INTRODUCTION
`AND
`SUMMARY
`OF
`ARGUMENT ................................................................ 1
`ARGUMENT ...................................................................... 4
`I. A Broad Range of Government Works Are And
`Should Be Excluded from Copyright Protection. ...... 4
`A. Governments Produce A Broad Range Of
`Works That Are Not
`“Law,” But
`Nonetheless Are Authoritative And
`Essential To The People’s Understanding
`Of Their Legal Obligations And To Their
`Ability To Engage In Self-Government. .......... 4
`B. The Constitutional Purpose Of Copyright
`Law Is Ill-Served By Extending Copyright
`Protection To Government Works. .................. 9
`C. This Court Long Ago Recognized The Need
`For An Exception To Copyright For
`Government Works. ....................................... 12
`D. The Government Edicts Doctrine Should
`Bar Copyright
`In All Government-
`Authored Works Created In The Exercise
`Of A Distinctly Governmental Function. ...... 14
`E. Petitioner’s Proposal To Limit The
`Government Edicts Doctrine To Works
`Having “The Force of Law” Would Harm
`The Public. ...................................................... 18
`
`
`
`
`
`ii
`TABLE OF CONTENTS—Continued
`
`Page
`F. The United States’ Proposal Is Closer To
`Correct, But Not Quite Right ......................... 21
`II. The Annotations Within The Official Georgia
`Code Are Government Edicts. ................................... 22
`A. The O.C.G.A. Are Effectively Authored By
`Georgia And Distinctly Governmental. ......... 22
`B. This Case Is Unlike Those Involving
`Private Authors Where Copyright Has
`Been Upheld. .................................................. 25
`CONCLUSION ................................................................. 28
`
`APPENDIX
`
`List of Amici Curiae .................................................. 1a
`
`
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`American Society for Testing &
`Materials v. Public.Resource.Org,
`Inc.,
`896 F.3d 437 (D.C. Cir. 2018) .............................. 15
`Banks v. Manchester,
`128 U.S. 244 (1888) ............................ 12, 13, 17, 25
`
`Buillding Officials & Code
`Administrators v. Code Technology,
`Inc.,
`628 F.2d 730 (1st Cir. 1980) ................................ 15
`Callaghan v. Myers,
`128 U.S. 617 (1888) ........................................ 25, 26
`
`County of Suffolk v. First American
`Real Estate Solutions,
`261 F.3d 179 (2d Cir. 2001) ................................. 15
`
`Georgia ex rel. General Assembly, by &
`through Code Revision Commission
`v. Harrison Co.,
`548 F. Supp. 110 (N.D. Ga. 1982),
`vacated, 559 F. Supp. 37 (N.D. Ga.
`1983) ..................................................................... 18
`
`Harrison Co. v. Code Revision
`Commission,
`260 S.E.2d 30 (Ga. 1979) ..................................... 18
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Heine v. Appleton,
`11 F. Cas. 1031 (S.D.N.Y. 1857) .......................... 14
`Howell v. Miller,
`91 F. 129 (6th Cir. 1898) ...................................... 15
`Mazer v. Stein,
`347 U.S. 201 (1954) ................................................ 9
`Perez v. Mortgage Bankers Association,
`135 S. Ct. 1199 (2015) ............................................ 7
`
`Practice Management Information Corp.
`v. American Medical Association,
`121 F.3d 516 (9th Cir. 1997),
`amended, 133 F.3d 1140 (9th Cir.
`1998) ..................................................................... 15
`
`Sony Corp. of America v. Universal City
`Studios, Inc.,
`464 U.S. 417 (1984) .............................................. 10
`Timbs v. Indiana,
`139 S. Ct. 682 (2019) ............................................ 20
`
`Veeck v. Southern Building Code
`Congress International, Inc.,
`293 F.3d 791 (5th Cir. 2002) ................................ 15
`Wheaton v. Peters,
`33 U.S. (8 Pet.) 591 (1834) ............................. 12, 26
`
`
`
`v
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`CONSTITUTIONAL AND
`STATUTORY PROVISIONS
`U.S. Const. art. I, § 5, cl. 3 .......................................... 5
`U.S. Const. art. I, § 7, cl. 2 .......................................... 5
`U.S. Const. art. I, § 8, cl. 8 ........................................ 10
`17 U.S.C. § 105 .......................................................... 14
`Act of Jan. 12, 1895, ch. 23, 28 Stat. 601
`(1895) .................................................................... 14
`Act of Mar. 4, 1909, ch. 320, 35 Stat.
`1075 (1909) ........................................................... 14
`Copyright Act of 1976, Pub. L. No. 94-
`553, 90 Stat. 2541 ................................................ 14
`O.C.G.A. § 1-1-1 ......................................................... 22
`O.C.G.A. § 28-9-5(c) ................................................... 23
`OTHER AUTHORITIES
`Michael Asimow, Guidance Documents
`in the States: Toward a Safe Harbor,
`54 Admin L. Rev. 631 (2002) ................................. 7
`
`
`
`vi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Stephen Breyer, The Uneasy Case For
`Copyright: A Study of Copyright
`Books, Photocopies, and Computer
`Programs, 84 Harv. L. Rev. 281
`(1970) .................................................................... 20
`Code of Georgia - Free Public Access:
`Terms & Conditions,
`http://www.lexisnexis.com/hottopics/
`gacode/Default.asp (last visited Oct.
`11, 2019) ............................................................... 17
`DC.gov, Agency Directory,
`https://dc.gov/directory?tid=All (last
`visited Oct. 11, 2019) ............................................. 4
`Florida Department of Citrus, Captain
`Citrus,
`https://www.floridacitrus.org/captain
`-citrus/ (last visited Oct. 11, 2019) ...................... 16
`Ruth Bader Ginsburg, The Role of
`Dissenting Opinions, 95 Minn.
`L. Rev. 1 (2010) .................................................. 2, 6
`Charles Hughes, The Supreme Court of
`the United States (1936) ........................................ 2
`Lucas Moench, Note, State Court
`Advisory Opinions: Implications for
`Legislative Power and Prerogatives,
`97 B.U. L. Rev. 2243 (2017) ................................... 6
`
`
`
`vii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Rules and Regulations of the State of
`Georgia, Terms and Conditions of
`Agreement for Access to Rules and
`Regulations of the State of Georgia
`Website,
`http://rules.sos.state.ga.us/cgi-
`bin/page.cgi (last visited Oct. 11,
`2019) ..................................................................... 17
`Ryan Rodenberg, Daily fantasy sports
`state-by-state tracker, ESPN (Feb.
`18, 2016),
`https://www.espn.com/chalk/story/_/
`id/14799449/daily-fantasy-dfs-legal-
`your-state-state-state-look .................................... 7
`Antonin Scalia, Lecture, The Dissenting
`Opinion, 1994 J. Sup. Ct. Hist. 33
`(1994) ...................................................................... 6
`Leslie A. Street & David R. Hansen,
`Who Owns The Law? Why We Must
`Restore Public Ownership of Legal
`Publishing, 26 J. Intell. Prop. L. 205
`(2019) ................................................................ 8, 25
`
`
`
`
`
`
`
`INTEREST OF AMICI CURIAE1
`former
`curiae are
`current and
`Amici
`government officials. In their roles as government
`officials, amici have authored and published a
`broad range of government works in several
`different jurisdictions. Amici thus offer a unique
`perspective on the nature of government works, the
`incentives that underlie their formation, and the
`importance of public access to them. A complete list
`of signatories to this brief is attached in the
`Appendix hereto.
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`Americans today are subject to a dizzying array
`of laws, issued by all levels of government—federal,
`state, county, municipal. These binding legal rules
`are not the product of legislatures and the courts
`alone, but are promulgated by a wide assortment of
`government entities: administrative agencies,
`water districts, city councils, school boards, zoning
`commissions, and on and on. In contemporary
`society, there are few activities that a person can
`engage in without implicating one legal regime or
`another.
`Given the legal complexity of modern life, it is
`impossible to expect a citizen lacking legal training
`
`1 No counsel for a party authored this brief in whole or in
`part; and no such counsel or any party made a monetary
`contribution intended to fund the preparation or submission
`of this brief. No person or entity, other than amici and their
`counsel, made a monetary contribution intended to fund the
`preparation or submission of this brief. The parties have
`consented to the filing of this brief.
`
`
`
`
`
`2
`to simply read the text of relevant statutes,
`regulations, or court decisions, and know with
`certainty how to remain on the right side of the law.
`Recognizing this fact, governments publish a
`wealth of material that is not technically or
`precisely “the law” but is nevertheless important to
`explain and provide guidance about what the law
`means—regulatory
`guidance
`documents,
`legislative committee reports, attorney general
`opinion letters, summaries of court decisions, and,
`most relevant to the present proceeding, official
`annotations to legislative enactments.
`Public availability of such government works
`also furthers the ability of the electorate to engage
`in democratic self-government. For instance, this
`Court and others publish dissenting opinions—
`despite their nonbinding nature—for a variety of
`public purposes: to foster “the transparency of the
`judicial process,” “to attract immediate public
`attention and, thereby, to propel
`legislative
`change,” or simply to “‘appeal . . . to the intelligence
`of a future day.’” Ruth Bader Ginsburg, The Role of
`Dissenting Opinions, 95 Minn. L. Rev. 1, 3-6 (2010)
`(alteration in original) (quoting Charles Hughes,
`The Supreme Court of the United States 68 (1936)).
`The question presented in this case is whether
`state and local governments should be permitted to
`claim a copyright in these works—and place them
`behind paywalls—merely because they “lack the
`force of law.” Pet. I. The answer is “no.” Granting
`the government the right to exclude the public from
`freely accessing such content serves neither the
`purposes of copyright nor the interests of our
`constitutional democracy. Far from requiring such
`a senseless result, the Copyright Act—properly
`
`
`
`3
`understood in light of prevailing precedent and
`constitutional constraints—precludes it.
`tradition,
`In
`the American constitutional
`copyright exists to provide incentives for authors to
`create original works to benefit society. Public
`officials do not need these incentives, nor would the
`works they produce be better if produced with an
`eye toward profit. But such works are often of
`critical importance, and have few if any substitutes,
`so permitting the monopoly pricing afforded by
`copyright would yield significant social costs.
`Allowing state and local governments to use
`copyright to leverage their lawmaking authority to
`raise funds is inimical to principles of sound
`government
`and,
`especially
`if Petitioner’s
`argument is accepted, would mark a sea change in
`the ability of the people to access the works of their
`own representatives—works that describe the legal
`obligations under which the People themselves
`must operate.
`Recognizing that copyright is an ill fit for works
`created by the government, this Court more than a
`century ago established the “government edicts”
`doctrine, a public policy-based exception to
`copyright. The annotations to the legislative
`enactments at issue in this case fall squarely in this
`ancient category.
`The suit concerns, of course, official, state-
`sanctioned annotations to the text of Georgia law.
`While Georgia hired a contractor to draft those
`annotations,
`the State
`itself claims
`initial
`authorship under the work-for-hire doctrine,
`controls the content of the annotations through
`statute and contract alike, and identifies them as
`“official” in a number of ways.
` These are
`
`
`
`4
`pronouncements, by the government, about what
`the law means. The People have every right to read
`and share them.
`Accordingly, this Court should affirm that the
`government edicts doctrine applies here—as it does
`to all material that is produced by state and local
`governments in the exercise of their distinctly
`governmental
`functions, whether or not
`it
`possesses the force of law.
`ARGUMENT
`I. A BROAD RANGE OF GOVERNMENT
`WORKS ARE AND
`SHOULD BE
`EXCLUDED
`FROM
`COPYRIGHT
`PROTECTION.
`A. Governments Produce A Broad Range
`Of Works That Are Not “Law,” But
`Nonetheless Are Authoritative And
`Essential
`To
`The
`People’s
`Understanding Of Their Legal
`Obligations And To Their Ability To
`Engage In Self-Government.
`In the one-hundred-and-thirty-one years since
`this Court last addressed the issues presented by
`this case, the scale and breadth of government has
`expanded exponentially to meet the challenges of
`our ever-more complex society.2 For better or
`
`
`2 For instance, the District of Columbia—a municipality
`with approximately 700,000 residents—has 90 separate local
`agencies, many of which have their own regulatory authority
`generally
`DC.gov,
`Agency
`Directory,
`See
`https://dc.gov/directory?tid=All (last visited Oct. 11, 2019).
`
`
`
`5
`worse, government regulation fills every nook and
`cranny of our lives.
`As part of the work of generating and
`implementing this elaborate web of legal rules,
`government entities across the country produce a
`tremendous volume of material that, while
`technically not “the law,” nonetheless serves a vital
`role in our democracy. While this case addresses a
`specific kind of government work, it is important to
`keep in mind the breadth of works to which this
`Court’s holding will be applied.
`For instance, legislative bodies at all levels keep
`official records of their proceedings. The Framers
`themselves recognized the importance of keeping
`such records and making them available to the
`public, enshrining in the Constitution a specific
`command: “Each House shall keep a Journal of its
`Proceedings, and from time to time publish the
`same, excepting such Parts as may in their
`judgment require Secrecy; and the Yeas and Nays
`of the Members of either House on any question
`shall, at the desire of one fifth of those Present, be
`entered on the Journal.” U.S. Const. art. I, § 5, cl.
`3.3 These Journals—and other similar records of
`legislative actions from state and local legislative
`bodies around the country—lack the “force of law,”
`yet are critical to understanding and tracking the
`actions of government.
`
`
`3 See also U.S. Const. art. I, § 7, cl. 2 (requiring that the
`originating legislative chamber “enter” the President’s
`“Objections” to a vetoed bill “at large on their Journal” and
`requiring votes to override a veto “be entered on the Journal
`of each House respectively.”
`
`
`
`6
`Legislatures produce other records that are
`equally important.
` Committee reports, floor
`debates, and the prior, unenacted versions of
`legislation also lack the force of law. Yet these
`materials are routinely consulted by courts and
`executive agencies when interpreting the law and
`evaluating people’s legal rights and obligations.
`Committee hearings and testimony, too, are not
`“the law.” Yet we record and publish that
`testimony, and we record and publish our debates,
`because those testimonies and debates are part of
`the vital work of our government. These records
`educate the public on matters critical to the conduct
`of their personal and professional lives, and shape
`both the works of our legislators and the opinions
`of our courts.
`Those judicial opinions, in turn, themselves
`often lack the force of law. A dissenting opinion, for
`example, by its terms has no controlling effect,
`though it may nonetheless serve important public
`purposes in our American democracy. See generally
`Ginsburg, supra, 95 Minn. L. Rev. 1; Antonin
`Scalia, Lecture, The Dissenting Opinion, 1994 J.
`Sup. Ct. Hist. 33 (1994). And a number of states—
`including Alabama, Colorado, Delaware, Florida,
`Maine, Massachusetts, Michigan, New Hampshire,
`Oklahoma, Rhode Island, and South Dakota—
`authorize courts
`to
`issue purely
`“advisory”
`opinions, which are almost invariably deemed non-
`binding as matter of law.4
`
`
`4 See Lucas Moench, Note, State Court Advisory Opinions:
`Implications for Legislative Power and Prerogatives, 97 B.U.
`L. Rev. 2243, 2246, 2266 (2017).
`
`
`
`7
`Most executive materials, too—though often
`critical to the sound functioning of a democratic
`government—do not have the
`force of
`law.
`Interpretive rules, guidance documents, and policy
`statements by definition lack the force and effect of
`law, yet many
`regulated parties
`(rightly)
`understand such material to be nearly as important
`as the law itself in ascertaining their obligations.5
`Attorney general opinion letters likewise lack the
`force of law, but businesses and individuals
`consider them crucially important in complying
`with the law.6 The same is true for all stages of
`agency rulemaking prior to the final rule—
`proposed rules, comments, statements of basis and
`purpose,
`preambles,
`environmental
`impact
`statements, cost-benefit analyses and much else.
`As authors and publishers of these types of
`government works, we can say with authority that
`the reason for their creation is not private benefit
`or profit. Rather, government officials create and
`publish these non-binding analyses and related
`
`5 See generally Michael Asimow, Guidance Documents in
`the States: Toward a Safe Harbor, 54 Admin L. Rev. 631
`(2002); see also, e.g., Perez v. Mortg. Bankers Ass’n, 135 S. Ct.
`1199, 1204 (2015) (Fair Labor Standards Act applicability to
`mortgage loan officers turned on interpretive rule).
`6 For example, ESPN maintains a tracker of where
`fantasy sports are legal, which references attorney general
`opinion letters together with laws. See Ryan Rodenberg,
`Daily fantasy sports state-by-state tracker, ESPN (Feb. 18,
`2016), https://www.espn.com/chalk/story/_/id/14799449/daily-
`fantasy-dfs-legal-your-state-state-state-look. Both esports
`companies and casual players have an obvious need to know
`their government’s views on whether their activity is legal or
`illegal.
`
`
`
`8
`materials for two separate, equally important
`reasons:
`First, these works provide the governed with
`vital information about the laws that govern them.
`In a nation consisting of a patchwork of federal,
`state, and local authorities, these works enable the
`People to access, fully understand, and thereby to
`comply with—or challenge—the laws to which they
`are subject. As one commentator has pointed out,
`the requirement of notice of the law “has a long
`history”:
`The Greeks did it; the Romans famously
`practiced it by posting the Twelve Tables of
`Law in the forum, in response to the
`demands of the plebs. In the Middle Ages,
`Thomas Aquinas spent considerable space
`questioning whether “law” was actually
`“law” at all if not published for the notice of
`the governed. Modern commentators have
`even proposed that public access to legal
`information deserves universal recognition
`as a human right. In America, the basic
`principle of notice is embodied in the
`Constitution through its ex post facto clauses
`and prohibition on vague laws.
`Leslie A. Street & David R. Hansen, Who Owns The
`Law? Why We Must Restore Public Ownership of
`Legal Publishing, 26 J. Intell. Prop. L. 205, 207
`(2019) (footnotes omitted). Residents of the United
`States, and of each individual state, county, city,
`township, and other governing district have an
`obligation to understand and comply with the law—
`an obligation they cannot meet if they do not know
`the law.
`
`
`
`9
`Second, and equally importantly, these works
`give the public access to the actions of their
`government. In our democracy, where our officials
`are ultimately responsible to the People who
`elected them, it is vitally important for citizens to
`be able to see, and assess, the work of their elected
`officials. Legislative records and hearings allow the
`millions of people who cannot be present to know
`what lawmakers are doing, and what their reasons
`are. Agency records and statements of policy
`likewise turn otherwise opaque enforcement
`decisions
`into something more accountable.
`Knowledge is power, and the works of public
`servants give the People the knowledge they need
`to vote, petition, protest, sue, or participate in other
`ways.
`Open access to government works is thus critical
`to allow the public to understand the laws that
`govern them, and so that they can hold us, their
`government, accountable.
`B. The Constitutional Purpose Of
`Copyright Law
`Is
`Ill-Served By
`Extending Copyright Protection To
`Government Works.
`“The economic philosophy behind the clause
`empowering Congress to grant patents and
`copyrights is the conviction that encouragement of
`individual effort by personal gain is the best way to
`advance public welfare through the talents of
`authors and inventors in ‘Science and useful Arts.’”
`Mazer v. Stein, 347 U.S. 201, 219 (1954). The
`benefits and costs of copyright in the private sector
`are well-documented. Copyright creates higher
`prices for consumers, in exchange for the incentives
`
`
`
`10
`for creation generated by the promise of exclusive
`rights for authors. But part of that bargain is a
`well-recognized form of “deadweight loss”: some
`consumers elect not to purchase a copyrighted work
`rather than paying the higher rates that can be
`profitably charged by an owner of exclusive rights.
`As a result, though the author winds up better off
`than she would otherwise be, her work reaches
`fewer people.
`In the private sector, the benefits of enticing
`new authors to write original works make these
`costs worthwhile.
` Exclusive rights are the
`necessary price for “promot[ing] the Progress of
`Science.” U.S. Const. art. I, § 8, cl. 8. But granting
`copyright for copyright’s sake is antithetical to the
`American constitutional tradition. As this Court
`has recognized, “[t]he monopoly privileges that
`Congress may authorize are n[ot] . . . designed to
`provide a special private benefit.” Sony Corp. of
`Am. v. Universal City Studios, Inc., 464 U.S. 417,
`429 (1984). To the contrary, they are “intended to
`motivate the creative activity of authors and
`inventors by the provision of a special reward.” Id.
`The logic of copyright’s bargain—the right to
`limit distribution and increase price, in exchange
`for enhanced incentives for creation—has no
`application to the type of government works at
`issue in this case. The economic incentives are (or
`should be,
`if governments are acting as
`governments ought) entirely different—and indeed
`perfectly sufficient to optimize output without the
`burdens of copyright’s restrictions.
`Unlike private authors who often require the
`promise of exclusive rights as an incentive to create
`works,
`states do not need
`the
`financial
`
`
`
`11
`remuneration of copyright to motivate them to
`create. Well-functioning governments serve the
`public, and they act on behalf of the People in their
`creation and interpretation of laws. Government
`authors do not create their works for profit. Even
`the most cynical view of a punch-the-clock
`bureaucrat does not
`imagine him writing
`documents with an eye to how many readers will
`purchase them. Most public officials—including
`amici—want their work to be widely disseminated;
`indeed, they create it for this very purpose. And
`regardless of their subjective preferences, copyright
`is simply an inappropriate tool for governments to
`pay for public priorities. Unlike a private author,
`for whom it is decidedly unproblematic to publish
`works with access restricted to those who can pay
`the market-clearing price, it is quite literally
`undemocratic for the state to pursue the same
`gambit with respect to official works that comprise
`an essential element of
`the enterprise of
`government.
`Put differently, the public costs of copyright are
`radically higher for works of the latter category.
`They have few or no substitutes: one can read a
`different novel and enjoy it as much, but reading a
`different jurisdiction’s tax guidance documents is
`useless. Consumers do not have the luxury of
`refusing the works of state courts and legislatures,
`because their liberty and property interests are
`directly impacted by the content of that material.
`
`
`
`12
`C. This Court Long Ago Recognized The
`Need For An Exception To Copyright
`For Government Works.
`This Court recognized over a century ago the
`need for a judicially created exception to the
`copyright
`laws to prevent the
`invocation of
`exclusive rights in governmental works.
` In
`Wheaton v. Peters, the Court had recognized, albeit
`in dicta, that “the court are unanimously of opinion,
`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.” 33 U.S. (8 Pet.) 591, 668
`(1834). In Banks v. Manchester, this Court
`reinforced Wheaton’s observation with an equally
`forceful holding: “In 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, in the sense of [copyright law]
`. . . .” 128 U.S. 244, 253 (1888).
`The reasoning of these cases applies squarely to
`the present dispute. As the Banks Court explained,
`judges neither need copyright incentives, since they
`receive a salary, nor should they be subject to them,
`since it would be inappropriate for judges to have a
`financial stake in the popularity of their work:
`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.
`
`Id.
`
`
`
`13
`Next, the Court ruled that this principle applied
`to all the work of judges, because the public had a
`vital interest in seeing the work of the courts:
`This extends to whatever work they
`perform in their capacity as judges, and
`as well to the statements of cases and
`headnotes prepared by them as such, as
`to the opinions and decisions themselves.
`The question is one of public policy, and
`there has always been a
`judicial
`consensus, from the time of the decision in
`the case of Wheaton v. Peters, 8 Pet. 591,
`that no copyright could, under the
`statutes passed by congress, be secured in
`the products of the labor done by judicial
`officers in the discharge of their judicial
`duties. 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 . . . .
`Id. In other words, in Banks itself, the Court
`recognized that copyright does not extend to
`material like summaries, headnotes, and other
`matter
`authored
`by
`the
`government,
`notwithstanding the fact that they self-evidently
`lacked the force of law. Instead, the Court
`concluded that the “whole work done” by the judge
`must be “free for publication to all,” because it
`represented
`the
`“authentic
`exposition and
`interpretation of the law.” Id. (emphasis added).
`
`
`
`14
`D. The Government Edicts Doctrine
`Should Bar Copyright
`In All
`Government-Authored Works Created
`In The Exercise Of A Distinctly
`Governmental Function.
`the
`Recognizing
`the policies underlying
`government edicts doctrine, Congress has imposed
`a broad prohibition on copyright protection for
`works created by the federal government, see 17
`U.S.C. § 105.7 The common law government edicts
`doctrine, however, continues to have force with
`respect to the works of states and their political
`subdivisions, and with respect to works that are
`incorporated into legislation and regulation by
`governments at all levels. Lower courts have thus
`grappled with how to apply the government edicts
`doctrine to works created or adopted by such
`
`7 This principle was recognized as far back as 1857, when
`an artist working for the Navy under Commodore Perry was
`denied copyright in prints and illustrations he made during a
`trip to Japan. See Heine v. Appleton, 11 F. Cas. 1031, 1033
`(S.D.N.Y. 1857) (No. 6324). Congress formalized the principle
`in the Printing Law of 1895, which allowed for the sale by the
`Government Printing Office of “duplicate stereotype or
`electrotype plates from which any Government publication is
`printed,” provided that “no publication reprinted from such
`stereotype or electrotype plates and no other Government
`publication shall be copyrighted.” Act of Jan. 12, 1895, ch. 23,
`§ 52, 28 Stat. 601, 608 (1895). This was followed, in the
`Copyright Act of 1909, with a provision that “[n]o copyright
`shall subsist . . . in any publication of the United States
`Government, or any reprint, in whole or in part, thereof.” Act
`of Mar. 4, 1909, ch. 320, § 7, 35 Stat. 1075, 1077(1909). These
`provisions were consolidated as part of the 1976 Copyright
`Act. See also Copyright Act of 1976, Pub. L. No. 94-553,
`§ 105(a), 90 Stat. 2541.
`
`
`
`15
`government entities.8 Those cases have failed to
`settle on a single articulation of the proper scope of
`the government edicts doctrine.
`In our view, the government edicts doctrine
`should apply when (1) the government effectively
`authors the work or adopts it as its own; and (2) the
`work relates to a distinctly governmental function.
`This test directly implements the core purposes of
`the government edicts doctrine—ensuring access
`by the people to their government and the laws that
`govern them, and ensuring accountability of the
`government to the people.
`The government “effectively authors” a work
`when it either directly writes it or hires others to do
`so, or adopts a work and clothes it so fully with
`authority that it must be viewed as the work of the
`government, and not of any private party. This
`requirement is rooted in the notion that, in our
`constitutional democracy, government is by, of, and
`for the people. Thus, when the state authors a
`work, in a sense that work is “authored” by the
`people of that state. As the First Circuit put it in
`Building Officials & Code Administrators v. Code
`Technology, Inc., 628 F.2d 730, 734 (1st Cir. 1980):
`“The citizens are the authors of the law, and
`therefore its owners, regardless of who actually
`
`8 See Howell v. Miller, 91 F. 129 (6th Cir. 1898); Bldg.
`Officials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730 (1st
`Cir. 1980); Cty. of Suffolk v. First Am. Real Estate Sols., 261
`F.3d 179 (2d Cir. 2001); Veeck v. S. Bldg. Code Cong. Int’l,
`Inc., 293 F.3d 791 (5th Cir. 2002) (en banc); Am. Soc’y for
`Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d
`437, 440 (D.C. Cir. 2018); Practice Mgmt. Info. Corp. v. Am.
`Med. Ass’n, 121 F.3d 516 (9th Cir. 1997), amended, 133 F.3d
`1140 (9th Cir. 1998).
`
`
`
`16
`drafts the provisions, because the law derives its
`authority from the consent of the public, expressed
`through the democratic process.” T
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