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Eleventh Circuit Holds That Annotations of the Official Code of Georgia Annotated Are Not Copyrightable

By Ryan K. Walsh, Mary Alexander Myers and Rebecca M. Nocharli

On October 19, 2018, the Eleventh Circuit issued a decision in Code Revision Commission v. Public.Resource.Org, Inc., overturning a Northern District of Georgia ruling and holding that the annotations contained in the Official Code of Georgia Annotated ("OCGA") are not copyrightable. No. 17-11589, 2018 WL 5093234 (11th Cir. Oct. 19, 2018) (hereafter "Op."). This decision provides an important message with respect to the public nature of the law and how private companies make use of public legal documents.

Background

The Georgia Code Revision Commission (the "Commission") was established by the Georgia General Assembly in 1977 and was initially tasked with the recodification of Georgia's laws. In 1982, the Commission first published the OCGA, an annotated compilation of Georgia statutes. Since then, the Commission has updated and published the OCGA annually.

The OCGA is comprised of both statutory text and annotations. The statutory text is the official published version of Georgia's laws. The annotations consist of summaries of judicial opinions, opinions of the Attorney General of Georgia, and advisory opinions of the State Bar; legislative history; cross-references; and other research references. While the annotations are part of the official Georgia code, the OCGA makes it clear that the annotations do not have the force of law. See Op. at 6.

The annotations were initially prepared by a division of the LexisNexis Group ("Lexis") under the supervision of the Commission, pursuant to an agreement with the State of Georgia (the "Agreement"). The Agreement provided instructions to Lexis about the types of annotations that should be included, the process of generating and arranging the content, and publication of the OCGA. For example, the Agreement required Lexis to publish a free, unannotated, online version of the Code and limited the price that Lexis could charge for the OCGA. The Agreement also gave Lexis the exclusive right to produce and sell the OCGA; gave the Commission all royalties on the sale of electronic copies of the OCGA; and gave the State of Georgia ownership of the copyright in the annotations.

The Facts

Public.Resource.Org ("PRO") is a nonprofit organization whose aim is to improve public access to government records and primary legal materials. In 2013, PRO purchased the print version of the OCGA, scanned it, and uploaded it to the PRO website. PRO also distributed digital copies of the OCGA by mailing USB drives to Georgia legislators and by sending copies of the OCGA to other organizations.

The Commission sent PRO numerous cease and desist letters stating that PRO's copying and distribution of the OCGA infringed the State of Georgia's copyright. PRO, however, refused the Commission's demand. On July 21, 2015, the Commission—on behalf of the Georgia General Assembly and the State of Georgia—sued PRO for copyright infringement in the Northern District of Georgia and sought injunctive relief. In its answer to the Commission's complaint, PRO argued that the State of Georgia did not hold an enforceable copyright in the Code and alternatively asserted the defense of fair use. PRO also filed a counterclaim for a declaratory judgment "that the State has no valid copyright in the OCGA because it is in the public domain." Op. at 10.

District Court Decision

The district court granted the Commission's motion for partial summary judgment and concluded that the annotations in the OCGA are not public domain material, because the annotations do not have the force of law. Further, the district court rejected PRO's challenges to the validity of the State of Georgia's copyright and PRO's fair use defense. The district court entered a permanent injunction against PRO and ordered PRO to stop its unauthorized use of the OCGA (including removing the OCGA from its website). PRO appealed to the Eleventh Circuit Court of Appeals.

Eleventh Circuit Decision

On appeal, the Eleventh Circuit held "that no valid copyright interest can be asserted in any part of the OCGA," (Op. at 2), and consequently reversed-in-part, vacated-in-part, and remanded the district court's ruling. In reaching its decision, the Eleventh Circuit noted that the concept of "authorship" is essential to copyright law in the United States. Then, it discussed the authority and precedent establishing that the term "author" should be interpreted to mean "the People" when it comes to certain governmental works, such as judicial decisions, statutes, and regulations. The Eleventh Circuit relied on United States Supreme Court cases from the nineteenth century—the last time the Court addressed issues relevant to this case. It also considered lower courts' applications of the Supreme Court precedents, and the codification of those rules in the Copyright Acts of 1909 and 1976.

The Eleventh Circuit explained that the principle underlying the rule that certain governmental works should be attributed to the authorship of the People has always been that under democratic rule, the People are sovereign and they govern themselves through representatives. In other words, lawmakers essentially exercise delegated authority as servants of the People, and the People are the constructive authors—and owners—of lawmakers' works. Further, such works are "intrinsically public domain material and [must be] freely accessible to all so that no valid copyright can ever be held in [them]." Op. at 21. In support, the Eleventh Circuit cited several sources, including the Declaration of Independence (stating that the government derives its powers from "the consent of the governed"), the Federalist papers (stating that representatives of the people pronounce "the public voice"), and President Lincoln's Gettysburg Address (stating that our form of government is one "of the people, by the people, and for the people"). Op. at 20–21.

The Eleventh Circuit noted, however, that the rule is not so broad such that every government employee's works can be interpreted as those of the People; rather, the rule is triggered when a government official is entrusted with the power to bind every citizen to their interpretation of the law. Thus, to determine whether a work is attributable to the constructive authorship of the People, and not copyrightable, the work must be sufficiently law-like.

The Eleventh Circuit applied a three-part inquiry to determine whether the annotations of the OCGA meet the threshold of "sufficiently law-like." It inquired whether the work: (1) was "written by public officials who are entrusted with the exercise of legislative power"; (2) was authoritative; and (3) obtains its legal effect through a mandatory prescribed process. Op. at 28.

First, the Eleventh Circuit established that the annotations are written by public officials entrusted with legislative power. The court observed that the Commission, which is ultimately responsible for the annotations' drafting, is an arm of the Georgia General Assembly because of its composition, funding, and staff. As such, the Georgia General Assembly, made up of Georgia's elected legislators, was the driving force behind the creation of the annotations. Similarly, the General Assembly played a central role in the approval of the OCGA, since it was required to vote on the OCGA annually to make it official. Moreover, the Georgia Supreme Court has held that the Commission's work is legislative in nature. The Eleventh Circuit concluded that these aspects of the Code's drafting show that it is in fact written by public officials entrusted with legislative power.

Second, the Eleventh Circuit found that the OCGA's annotations are authoritative sources on statutory meaning and legislative intent. The OCGA's annotations are treated as authoritative law by Georgia courts; they have been intentionally merged with the statutory text by the Georgia General Assembly; and they have been labeled "official" and stamped with the state's imprimatur. Additionally, the OCGA's annotations were created through a "legitimate exercise of delegated, sovereign power." Op. at 49. As a result, the Eleventh Circuit concluded that the OCGA's annotations are sufficiently authoritative.

Finally, the Eleventh Circuit explained that the OCGA's annotations were created through a process similar to the process by which laws are enacted. More specifically, the Georgia General Assembly used bicameralism and presentment, both central to lawmaking in the State of Georgia and in the federal government, to adopt the annotations and merge them with the statutory text.

As a result of this three-part inquiry, the Eleventh Circuit determined that the annotations of the OCGA are "part and parcel of the law . . . [and] are so enmeshed with Georgia law as to be inextricable." Op. at 28. Accordingly, the court concluded that the annotations are constructively authored by the People and intrinsically public domain material, such that no valid copyright can subsist in them.

Ryan K. Walsh is a partner with Jones Day in Atlanta and Mary Alexander Myers and Rebecca M. Nocharli are associates with Jones Day in Atlanta. The Code Revision Commission was represented in the Eleventh Circuit by Anthony B. Askew, Lisa Pavento, and Warren James Thomas with Meunier Carlin & Curfman, LLC; Public.Resource.Org, Inc. was represented by Elizabeth Hannah Rader, Sarah Parker LaFantano, and Jason Demian Rosenberg with Alston & Bird. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.

 
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