Amicus Curiae Brief — Georgia, et al., Petitioners v. Public.Resource.Org, Inc.

Supreme Court briefAug 30, 2019

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No. 18-1150

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In The

Supreme Court of the United States

-----------------------------------------------------------------STATE OF GEORGIA, ET AL.,

Petitioners,

PUBLIC.RESOURCE.ORG, INC.,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------BRIEF OF THE STATES OF ARKANSAS,

ALABAMA, ALASKA, IDAHO, KANSAS,

MISSISSIPPI, NEBRASKA, SOUTH CAROLINA,

SOUTH DAKOTA, TENNESSEE, UTAH, VERMONT,

THE COMMONWEALTH OF VIRGINIA, AND

THE DISTRICT OF COLUMBIA AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------ARKANSAS ATTORNEY

GENERAL’S OFFICE

323 Center Street

Little Rock, Arkansas 72201

(501) 682-6302

nicholas.bronni@

arkansasag.gov

LESLIE RUTLEDGE

Arkansas Attorney General

NICHOLAS J. BRONNI

Arkansas Solicitor General

Counsel of Record

VINCENT M. WAGNER

Deputy Solicitor General

DYLAN L. JACOBS

ASHER STEINBERG

Assistant Solicitors General

Counsel for Amici Curiae

[Additional Counsel Listed On Signature Page]

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

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.

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

INTEREST OF AMICI CURIAE .........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

II.

The annotations in official annotated

codes are copyrightable. ............................

Affirming the decision below would upend

States’ code-production practices and

threaten to deprive the public of a valuable

research tool ............................................... 14

A. The decision below, if adopted by this

Court, would likely invalidate every

code ...................................................... 15

B. Official code annotations’ copyrightability is vital to their continued production

and enhanced public understanding of

the law ................................................. 20

CONCLUSION..................................................... 24

Appendix A ........................................................... App. 1

Appendix B .......................................................... App. 2

iii

TABLE OF AUTHORITIES

Page

CASES

Am. Soc’y for Testing & Materials v. Public.

Resource.Org, Inc., 896 F.3d 437 (D.C. Cir.

2018) ..........................................................................4

Banks v. Manchester, 128 U.S. 244 (1888) ......... passim

Bldg. Officials & Code Adm’rs v. Code Tech., Inc.,

628 F.2d 730 (1st Cir. 1980) .................................. 7, 9

Callaghan v. Myers, 128 U.S. 617 (1888)............ passim

Gilmore v. Lynch, 319 F. Supp. 105 (N.D. Cal.

1970), aff’d sub nom. Younger v. Gilmore, 404

U.S. 15 (1971) ..........................................................22

Helsinn Healthcare S.A. v. Teva Pharm. USA,

Inc., 139 S. Ct. 628 (2019) .........................................6

Hixson v. Burson, 43 N.E. 1000 (Ohio 1896) ..............13

Howell v. Miller, 91 F. 129 (6th Cir. 1898)....................4

Jacobs v. State, 243 S.W. 952 (Ark. 1922)............... 9, 10

Lewis v. Casey, 518 U.S. 343 (1996) ............................22

Pioneer Tr. Co. v. Stich, 73 N.E. 520 (Ohio 1905) .......12

Shapiro v. United States, 335 U.S. 1 (1948) .................6

United States v. Detroit Timber & Lumber Co.,

200 U.S. 321 (1906) .................................................12

United States v. Stitt, 139 S. Ct. 399 (2018) ...............12

Veeck v. S. Bldg. Code Congress Int’l, Inc., 293

F.3d 791 (5th Cir. 2002) (en banc).............................7

Wheaton v. Peters, 33 U.S. 591 (1834) ................... 12, 15

TABLE OF AUTHORITIES—Continued

Page

STATUTES

17 U.S.C. 102(a)..................................................... 2, 4, 6

17 U.S.C. 201(a)......................................................... 2, 6

Ala. Code 1-1-14 ..........................................................19

Alaska Stat. 01.05.006................................................19

Ark. Code Ann. 1-2-102...............................................19

Ark. Code Ann. 1-2-115(c)...........................................10

Ark. Code Ann. 2-16-203......................................... 9, 10

Colo. Rev. Stat. 2-5-101(3)...........................................19

Colo. Rev. Stat. 2-5-102(1)(b) ......................................19

Del. Code tit. 1, sec. 101(a) .........................................19

Del. Code tit. 1, sec. 210(a) .........................................19

Ga. Code Ann. 1-1-1 .............................................. 18, 19

Ga. Code Ann. 1-1-7 ....................................................10

Ga. Code Ann. 40-1-57 ..................................................9

2015 Ga. Laws 9, sec. 54 .............................................19

2017 Ga. Laws 275......................................................18

Kan. Stat. Ann. 77-133(h) ...........................................19

Kan. Stat. Ann. 77-137 ...............................................19

Miss. Code Ann. 1-1-7 .................................................19

Miss. Code Ann. 1-1-8(1) .............................................19

N.M. Stat. Ann. 12-1-3 ................................................19

N.M. Stat. Ann. 12-1-7 ................................................19

TABLE OF AUTHORITIES—Continued

Page

Neb. Rev. Stat. 49-765 .................................................19

Neb. Rev. Stat. 49-767 .................................................19

P.R. Laws Ann. tit. 2, sec. 226 .....................................19

S.C. Code Ann. 2-7-45 .................................................19

S.C. Code Ann. 2-13-60(3) ...........................................19

Tenn. Code Ann. 1-1-105(a) ........................................19

Tenn. Code Ann. 1-1-111(b) ........................................19

Vt. Stat. Ann. tit. 1, sec. 51 .........................................19

Vt. Stat. Ann. tit. 2, sec. 422(b) ...................................19

OTHER AUTHORITIES

Am. Ass’n of Law Libraries Special Interest

Section, A Study of Attorneys’ Legal Research

Practices and Opinions of New Associates’

Research Skills (2013) ............................................21

Elizabeth Holland, Will You Have to Pay for the

O.C.G.A.?: Copyrighting the Official Code of

Georgia Annotated, 26 J. Intell. Prop. L. 99

(2019) .......................................................................22

Patrick Meyer, Law Firm Legal Research Requirements and the Legal Academy Beyond

Carnegie, 35 Whittier L. Rev. 419 (2014)................21

Thomson Reuters, West’s Florida Statutes Annotated, https://tinyurl.com/y2os7ryo ....................23

U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (3d ed. 2017) ....................... 4, 7

INTEREST OF AMICI CURIAE

Amici are the States of Arkansas, Alabama, Alaska,

Idaho, Kansas, Mississippi, Nebraska, South Carolina,

South Dakota, Tennessee, Utah, Vermont, the Commonwealth of Virginia, and the District of Columbia.

Amici have currently or had in the past copyrighted

annotations in their official codes.

The interpretation of copyright law adopted by

the decision below threatens Amici’s copyrights. In

that decision, the Eleventh Circuit held that the annotations in Georgia’s official code are not copyrightable.

To justify that holding, the Eleventh Circuit relied on

a number of factors concerning those annotations’

preparation and their status under Georgia law. Those

factors are typical of the production of official annotated codes and their status under other States’ laws.

As a result, the Eleventh Circuit’s reasoning would

likely invalidate a copyright asserted by nearly any

State (or its assignee) in the annotations to an official

state code.

By invalidating those copyrights, the Eleventh

Circuit’s interpretation of copyright law, if adopted by

this Court, would threaten the continued production of

official annotated state codes. Official annotated codes

are generally prepared by third-party annotators who

recoup the costs of preparing those codes by selling the

official annotated codes and retaining the revenues of

those sales. Without copyright protection, the annotations would become freely available, and the annotators’ sales would dry up. The annotators would likely

begin demanding payment for annotating state codes.

At very least, such payments would raise the price of

official annotated state codes and might cause some

States to altogether cease production of an official annotated code. Either outcome would raise the cost of

legal research for the lawyers and nonlawyers who rely

on official annotated state codes as a starting point for

their legal research.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

The decision below holds that under certain circumstances, a State cannot copyright the annotations

in its official annotated code that summarize judicial

decisions and state attorney-general opinions interpreting that code. It invalidated Georgia’s copyright

based on its interpretation of the principle that a State

cannot copyright the law itself, whether statutory or

judge made. Only a work’s “author or authors” can copyright it. 17 U.S.C. 201(a). And the decision below reasoned that the ultimate authors of the law are the

public at large, not the legislature or judiciary. But that

principle does not lead to the result below. Nonbinding

annotations are not the law. They are not an exercise

of popular sovereignty but only a commentary on that

exercise. Therefore, they are copyrightable “original

works of authorship” of the person or entity doing the

commenting. 17 U.S.C. 102(a). Neither this Court nor

any court of appeals had held otherwise until the decision below.

Apart from its error, affirming the decision below

would upend States’ code-publication arrangements,

and threaten to deprive the public of a valuable, albeit

nonauthoritative, legal-research tool. States use copyright protections to give third parties incentives to

annotate their official codes. Under the typical arrangement, the company that produces the annotations in an official annotated code sells that code and

keeps the revenues from its sale. Without copyright

protections for the annotations, States would be forced

to choose between paying these third parties to annotate their codes or giving up their annotated codes altogether.

The loss of annotated codes would be costly. Annotations are not themselves the law, nor authoritative

guidance on it. But despite the prevalence of electronic

legal research, annotated codes remain a widely used

research aid. Lawyers and nonlawyers alike continue

to look to the annotations as a starting point when researching state-law interpretations. Thus, the decision

below ultimately threatens to deprive many States’ citizens of a valuable tool.

------------------------------------------------------------------

ARGUMENT

The annotations in official annotated codes

are copyrightable.

In holding that Georgia could not copyright the

annotations in its official code, the Eleventh Circuit

relied on a series of nineteenth-century decisions holding that—under the copyright statutes in effect at

the time—the law itself, as expressed in statutes or

judicial decisions, is not copyrightable. See Banks v.

Manchester, 128 U.S. 244 (1888) (state judicial decisions); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898)

(Harlan, J.) (extending the principle to statutes). Notwithstanding that the copyright statutes those decisions interpreted are no longer in effect, no one today

disputes that “legislative enactments, judicial decisions, administrative rulings . . . or similar types of

official legal materials” cannot be copyrighted. U.S.

Practices 313.6(C)(2) (3d ed. 2017), https://www.copyright.

gov/comp3 (hereinafter “Compendium”).

The theory behind that rule under existing copyright law, however, is unclear. As Judge Katsas recently

observed in an unrelated lawsuit against Public Resource: “Today, the Banks rule might rest on at least

four possible grounds: the First Amendment; the Due

Process Clause of the Fifth Amendment; Section 102(b)

of the Copyright Act, which denies copyright protection

to [ideas], or Section 107 of the Act, which sets forth

the fair-use doctrine.” Am. Soc’y for Testing & Materials v. Public.Resource.Org, Inc., 896 F.3d 437, 458-59

(D.C. Cir. 2018) (Katsas, J., concurring) (citation omitted). To this list of theories, the decision below adds a

fifth: that laws and judicial decisions do not qualify as

original works of authorship under Section 102(a) of

the Copyright Act because their authors are constructively the people at large in a Nation where the people

are sovereign. Pet. App. 11a-12a (citing 17 U.S.C.

102(a)).

As Georgia explains, annotations in annotated

codes are copyrightable under any of these theories.

Pet. Br. 43-54. But the Eleventh Circuit’s citizenauthorship theory provides a particularly compelling

argument for the copyrightability of the annotations in

Georgia’s or any other State’s official annotated code.

Relying on Banks and other nineteenth-century decisions, the Eleventh Circuit made copyrightability depend on whether a given governmental action is

properly characterized as an exercise of popular sovereignty. Assuming for argument’s sake that the Eleventh Circuit’s theory is correct, because annotations

are not exercises of popular sovereignty, they are copyrightable.

A. In 1888, when this Court decided Banks, the

copyright statute then in effect provided copyright protections to “the author” of a work. 128 U.S. at 252. Interpreting that term, the Banks Court held that a

“taken out in the name of the state,” was invalid because the justices of that court were not the decisions’

authors in the sense in which the copyright statute

used that term. Id. at 253. The Court explained that

“[i]n no proper sense can the judge who, in his judicial

capacity, prepares the opinion or decision . . . be regarded as their author,” and that “[j]udges . . . have no

pecuniary interest or proprietorship, as against the

public at large, in the fruits of their judicial labors.” Id.

One month later in Callaghan v. Myers, 128 U.S. 617

(1888), the Court, distinguishing Banks, held that a

state-employed court reporter was “an author, within

the meaning of the act of Congress,” of the annotations

he included in his books of reported decisions. Id. at

647.

Although the copyright statute that Banks and

Callaghan interpreted is no longer in effect, today’s

using the same term—“author”—that the Banks Court

interpreted. The Copyright Act provides that “[c]opyright protection subsists . . . in original works of authorship,” 17 U.S.C. 102(a), and that “[c]opyright in a

work . . . vests initially in [its] author or authors,” id.

201(a). “ ‘In adopting the language used in the earlier

act, Congress must be considered to have adopted also

the construction given by this Court to such language,

and made it a part of the enactment.’ ” Helsinn

Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct.

628, 634 (2019) (quotation marks omitted) (quoting

Shapiro v. United States, 335 U.S. 1, 16 (1948)). Whatever its theoretical underpinnings, therefore, the

Banks doctrine continues to have vitality under the

current Copyright Act.

The decision below interpreted Banks’s holding

that judges are not authors of their opinions to rest on

the principle that, “in our democracy,” “the People [are]

the constructive authors . . . of the law.” Pet. App. 19a.

As Georgia notes, Pet. Br. 45 n.15, and even the decision below acknowledged, Pet. App. 20a, Banks did not

expressly rely on that rationale. While Banks certainly

held that judicial opinions were not “authored” by

judges, it did not say they were authored by the people.

Rather, Banks simply reasoned that as a matter of

“public policy,” judicial decisions must be “free for publication to all” because they “bind[ ] every citizen.” 128

U.S. at 253. Only nearly a century later did courts

begin to discern in Banks a “metaphorical concept of

citizen authorship.” Bldg. Officials & Code Adm’rs v.

Code Tech., Inc., 628 F.2d 730, 734 (1st Cir. 1980)

(BOCA); accord Veeck v. S. Bldg. Code Congress Int’l,

Inc., 293 F.3d 791, 799 (5th Cir. 2002) (en banc).

Though this “metaphorical concept” does not appear in Banks itself, decisions like BOCA and Veeck apply it to determine a particular government work’s

copyrightability under Banks. They ask whether a

work is constructively authored by the people to decide

whether it can be copyrighted by the government. But

as even the decision below conceded, the fact that “the

People are sovereign” does not extinguish States’ right

to copyright any State-produced work. Pet. App. 19a.

Indeed, in enacting the Copyright Act Congress

went out of its way to not exclude from protection all

works created by the States. See Pet. Br. 27-29. And as

the Copyright Office instructs, the fact that a work

“was prepared by an officer or employee of a state . . .

while acting within the course of his or her official duties” does not exclude that work from protection. Compendium, supra, 313.6(C)(2). For good reason: No one

would contend, for example, that such works as the

Georgia Department of Natural Resources’ Creatures

of the Night—Georgia’s Giant Sea Turtles,1 or the Mississippi Authority for Educational Television’s Cookin’

Cajun: Seafood,2 are expressions of popular sovereignty, authored by the people of Georgia or Mississippi. Not even the rationale of the decision below

would invalidate a copyright in works like those.

B. Whether or not the decision below correctly

interpreted Banks, taken on its own terms, that interpretation does not lead to the invalidation of Georgia’s

below, the question posed by the Banks rule is whether

a particular work is a “product of the direct exercise of

sovereign authority” and thus is authored by the people as sovereign. Pet. App. 25a. That framing resolves

this case. For the annotations in Georgia’s annotated

code, comprising summaries of judicial and state attorney-general opinions interpreting statutes, are in no

sense an exercise of popular sovereignty. They are nonbinding glosses on the law. And Georgia’s citizens can

in no way be deemed the “ultimate authors of the annotations,” which merely describe the citizen-authored

law. Pet. App. 4a. The same is true elsewhere. In no

State’s official annotated code are the annotations

themselves “constructively authored by the People” of

that State. Pet. App. 26a.

To understand the sheer implausibility of the

holding in the decision below that official code “annotations . . . are attributable to the constructive authorship of the People,” Pet. App. 53a, it helps to review

some examples of what those annotations actually say.

Here is an example from Georgia’s annotated code:

Insurer’s failure to file a notice of cancellation

with the Georgia Department of Motor Vehicle Safety (DMVS) did not render the insurer

liable under the direct action statute, former

O.C.G.A. § 46-7-12, because the former insurer had never obtained a permit of authority under former O.C.G.A. § 46-7-3 to operate

as carrier in Georgia, the insurer could not

have filed either a certificate of insurance or

a notice of cancellation with the DMVS.

Kolecnik v. Stratford Ins. Co., No. 1:05-cv0007-GET, 2005 U.S. Dist. LEXIS 34956 (N.D.

Ga. Nov. 28, 2005) (decided under former

O.C.G.A. § 46-7-3).3

And here is one from Arkansas’s annotated code:

In a prosecution for selling and offering for

sale nursery stock infected with a disease in

violation of a rule of the State Plant Board,

the state was not required to show that the

sale was made with knowledge that the trees

were so affected. Jacobs v. State, 155 Ark. 95,

243 S.W. 952 (Ark. 1922).4

The Banks rule—to the extent it rests on a “metaphorical concept of citizen authorship”—always requires a

bit of analytical suspended disbelief. BOCA, 628 F.2d

at 734. But suggesting that Georgia’s or Arkansas’s

Ga. Code Ann. 40-1-57.

Ark. Code Ann. 2-16-203.

citizens are the constructive authors of these elaborate

annotations strains the imagination.

These annotations are not the law, or even interpretations of it, authoritative or otherwise. They are

merely one annotator’s fact-laden description of how a

court decided a particular case. See Ark. Code Ann. 12-115(c) (“All . . . annotations . . . set out in this Code

are given for the purpose of convenient reference and

do not constitute part of the law.”); Ga. Code Ann. 1-17 (describing the effect of Georgia’s annotations in

identical terms). Another annotator could describe

that decision quite differently, and indeed other annotators do. Compare Jacobs, 243 S.W. at 952 (reporter

describing Jacobs as holding that in a prosecution for

sale of diseased nursery stock, “the state was not required to show a criminal intent” whatsoever), with

Ark. Code Ann. 2-16-203 (describing Jacobs as only

holding that the state did not need to prove knowledge

of disease). Which description is correct is a matter of

interpretation. And while the code’s annotation is published by the State, no citizen could reasonably believe

that its annotation has any authority that an unofficial

annotation lacks, nor even any additional persuasive

force in a court. The only authoritative statement on

the matter is contained in the decision itself (or

subsequent judicial decisions interpreting it). Official

annotations are useful glosses on authoritative interpretations of the law—not themselves authoritative

interpretations of the law.

Given this lack of authority, the people cannot

be sensibly described as the authors of official

annotations. Grant the decision below the principle

that the American people are deemed the authors of

the law for copyright purposes because they—and not

the government—are the ultimate lawmakers. Pet.

App. 19a-20a. Even so, the people are not law annotators.

It would be perfectly correct for a citizen to say,

“We the People of Arkansas, through our legislature,

have made selling diseased trees a crime”; or to say,

“We the People of Georgia, through our legislature,

have imposed direct liability in certain circumstances

on motor carriers’ insurers.” But it would be absurd for

a citizen to say, “Although our Supreme Court may disagree with our interpretation, we the People of Arkansas, through a private annotator hired by our Code

Revision Commission, have interpreted a decision of

our Supreme Court as holding that our diseased tree

law does not require the State to prove knowledge of

disease.” And it would be still more absurd for a citizen

to say, “We the People of Georgia, through a private annotator hired by our Code Revision Commission, have

interpreted an unpublished decision of a federal district court as predicting that, under our repealed motorcarrier-insurer liability law, an insurer that never

obtained a permit of authority would not be held liable.”

C. Because that understanding of the people’s relation to official annotations is so absurd, no court had

ever held, in the Nation’s long history of official annotated codes and judicial reporters, that the people are

the authors of official annotations for copyright purposes until the decision below.

To the contrary, this Court has twice held that annotations by a government-employed, official court reporter are copyrightable works of the reporter. See

Callaghan v. Myers, 128 U.S. 617, 645, 647-50 (1888);

Wheaton v. Peters, 33 U.S. 591, 667-68 (1834) (holding

that this Court’s opinions could not be copyrighted, but

remanding for a trial on whether its official reporter’s

annotations were copyrighted in accord with statutory

registration requirements). That is because—as every

opinion of this Court reiterates—annotations of opinions are not the law even when a government employee

prepares them, although the opinions themselves are

the law. See, e.g., United States v. Stitt, 139 S. Ct. 399,

402 n.* (2018) (“The syllabus constitutes no part of the

opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.”)

(citing United States v. Detroit Timber & Lumber Co.,

200 U.S. 321, 337 (1906)).

The only apparent exception proves the rule, as

the contrast between Banks’s and Callaghan’s treatment of syllabi and headnotes demonstrates. In Banks,

this Court held that syllabi and headnotes prepared

by Ohio Supreme Court Justices themselves were not

copyrightable. See Banks, 128 U.S. at 253. That is because Ohio Supreme Court syllabi and headnotes, at

that time, were a collective work of “the judges concurring in the opinion” just as much as the opinion itself,

id. at 250, and were deemed the controlling expression

of that court’s holdings. See Pioneer Tr. Co. v. Stich, 73

N.E. 520, 522 (Ohio 1905) (holding that as between

dicta in opinion and “the holding . . . as expressed in

the syllabus,” “[t]he syllabus controls”); Hixson v. Burson, 43 N.E. 1000, 1003 (Ohio 1896) (“reluctantly overrul[ing] the second [headnote of the] syllabus” of an

1880 Ohio Supreme Court decision).

Just one month after Banks, this Court appeared

to reverse course, holding that the Illinois Supreme

Court’s official reporter’s syllabi and headnotes were

copyrightable. See Callaghan, 128 U.S. at 645, 647-50.

Within a short time frame, therefore, the Court held

both that the public officials who created Ohio’s syllabi

and headnotes were not authors for copyright purposes, see Banks, 128 U.S. at 253, and that the “public

officer” who created Illinois’s syllabi and headnotes

was an author for copyright purposes, Callaghan, 128

U.S. at 645. And the Court reached the latter holding

in spite of the copyright infringer’s argument that the

reporter—as “a sworn public officer, appointed by the

authority of the government which creates the court of

which he is made the reporter, and . . . paid a fixed salary for his labors”—“was not an author, within the

meaning” of the copyright statute in effect. Id. at 64647.

Both the judges in Banks and the reporter in Callaghan were equally public officials, equally engaged

in official-capacity work when they produced the syllabi and headnotes whose copyrightability was in dispute. So there is only one possible explanation for the

discrepancy between Banks and Callaghan: Ohio’s syllabi were law and therefore ultimately attributable to

the people, while Illinois’s syllabi were true annotations of law and therefore attributable only to the reporter who wrote them. Because Georgia’s annotations

here closely resemble the Illinois syllabi in Callaghan,

they are copyrightable. The decision below was incorrect to hold otherwise.

II.

Affirming the decision below would upend

States’ code-production practices and threaten

to deprive the public of a valuable research

tool.

The decision below held that annotations in a

State’s official annotated code are not copyrightable

under a triple-factor test of its own invention. It

strained to suggest that these three factors made Georgia’s annotations unusual—remarkable, even. See, e.g.,

Pet. App. 42a (touting the annotations’ “potent cachet”

as “undeniable and . . . impossible to ignore”); Pet. App.

40a (claiming that legislature’s decision to print statutes and their annotations together in single “merged”

code “imbues [the annotations] with an official, legislative quality,” caused the “attributes” of statutes and annotations alike to be “intermingled” and “their distinct

character altered,” and ultimately created a “unified

. . . single edict”). But there is nothing Georgia-specific

or unusual about the factors on which the Eleventh

Circuit relied. Rather, they are largely present in the

case of every copyrighted annotated state code. A decision by this Court affirming the decision below on its

reasoning would likely invalidate the copyrights in all

of them.

Twenty-three States (including Georgia), two territories, and the District of Columbia copyright the

annotations in their official annotated codes. See Appendix A, infra. Were those copyrights invalidated,

States’ cost of making official annotated codes likely

would substantially increase. Those codes may even

disappear altogether.

A. The decision below, if adopted by this

Court, would likely invalidate every copyright in an official annotated state code.

To hold that Georgia’s official annotated code is

uncopyrightable, the decision below relied on three

main factors. Public Resource appears to defend that

novel three-factor test. See BIO 32 (arguing that the

“Rule of Law” requires that annotations created in

such a fashion be in the public domain); see also BIO

4-8 (approvingly discussing Eleventh Circuit’s reliance

on these “critical markers”); BIO 27 (inaccurately

claiming that the annotations here are different from

the copyrightable annotations in Callaghan and

Wheaton because the latter purportedly lacked the features of Georgia’s annotations relied upon below).

Although the decision below couched these factors

in Georgia-specific terms, all three would apply equally

to the official annotated code of almost any State. First,

the Eleventh Circuit noted that an agent of a branch

of Georgia’s government with lawmaking authority supervised preparation of the annotations. Pet. App. 30a.

Something similar could be said of nearly any State

with an official annotated code. Second, the court relied

on the annotations’ ostensibly “authoritative weight,”

Pet. App. 46a, particularly as evidenced by their placement in the official state code, Pet. App. 39a-42a. And

third, it pointed to the fact that Georgia adopted its

official annotated code through “bicameralism and

presentment.” Pet. App. 51a. But annotations in an official annotated state code will by definition be found

within the State’s official code and be adopted by the

State’s legislative process. Because the three factors

relied upon by the decision below would apply to virtually any official annotated state code, its reasoning

threatens to invalidate the copyright in any such

code.

The first factor on which the Eleventh Circuit relied to hold that Georgia’s annotations are not copyrightable is that their preparation is supervised by a

commission that is “largely composed of officials from

the legislative branch” and is “an agent of the Georgia

General Assembly.” Pet. App. 30a. According to the

Eleventh Circuit, if the preparation of annotations is

supervised by legislative or judicial officials, “it is substantially more likely that the work is constructively

authored by the people” because those officials have

lawmaking authority. Pet. App. 36a-37a. This factor

would be satisfied in the case of virtually every copyrighted annotated state code. As is true in Georgia, outside contractors generally prepare the annotations to

those codes. See Pet. App. 27a-28a. But those contractors almost invariably prepare them under the supervision of legislative-branch or judicial-branch officials,

including state legislators or state-court judges themselves in many cases. See Appendix B, infra (listing

statutes that lay out the States’ approaches to this

task).

The second factor on which the Eleventh Circuit

relied to hold that Georgia’s annotations are not copyrightable is their ostensibly “authoritative weight.”

Pet. App. 46a. The Eleventh Circuit gave a secondary

and a primary reason for concluding Georgia’s annotations “carry authoritative weight.” Id. The secondary

reason is simply a factual error. The Eleventh Circuit

cited a number of Georgia state-court cases that relied

on official comments compiled in Georgia’s annotated

code. Pet. App. 43a-44a. But, as Georgia has explained,

it claims no copyright in those comments. Pet. Br. 41

n.12. The annotations in which Georgia asserts copyright are annotations that summarize judicial and

state attorney-general opinions, and the Eleventh Circuit cited no case (as none exists) where a Georgia

court even cited the Georgia code’s annotations of

Georgia courts’ opinions, or those of the state attorney

general.

The principal reason the Eleventh Circuit gave for

concluding that Georgia’s annotations have authoritative weight, however, is true of every official annotated

state code. Namely, that court reasoned that Georgia’s

annotations have authoritative weight because they

are part of Georgia’s official code. Pet. App. 39a-42a.

The court acknowledged that Georgia’s code unambiguously “disclaims any legal effect in the annotations.”

Pet. App. 41a. Regardless, the court reasoned that

because “the official codification of Georgia statutes

contains . . . annotations . . . they are to be read as authoritative in a way that annotations ordinarily are

not.” Pet. App. 42a. Whatever might be said of this peculiar reasoning on its merits, it applies by definition

to every State that chooses to include annotations in

its official statutory code.5

The third and final factor on which the Eleventh

Circuit relied to hold that Georgia’s annotations are

not copyrightable is Georgia’s “use of bicameralism

and presentment to adopt the annotations.” Pet. App.

51a. This factor, too, as the Eleventh Circuit understood it, would be satisfied in the case of every official

annotated state code. In discussing this factor, the

Eleventh Circuit initially noted that the Georgia legislature annually reenacts its annotated code. Pet. App.

47a-48a. But as that court acknowledged, Georgia only

annually “reenact[s] the statutory portion of the Code.”

Pet. App. 47a (emphasis added) (brackets omitted)

(internal quotation marks omitted) (quoting 2017 Ga.

Laws 275). Indeed, the court went on to note that

Georgia’s annual code reenactments provide that “the

annotations ‘contained [therein] are not enacted as

The Eleventh Circuit also made much of Georgia’s particular use of the word “merge” in a statute providing that “the ‘statutory portion of [its code] shall be merged with annotations . . .

and other materials.’ ” Pet. App. 39a (quoting Ga. Code Ann. 1-11). But while the use of that particular word in this context may

be less than universal, the idea it expresses is not; all it means is

that Georgia’s codifiers are to print the annotations alongside the

respective statutes they annotate, rather than in separate volumes of annotations. All annotated codes are so arranged.

statutes by the provisions [of those reenactments].’ ”

Pet. App. 6a (quoting 2015 Ga. Laws 9, sec. 54).

Therefore, in reaching the conclusion that Georgia

“adopted” its annotations through bicameralism and

presentment, all the Eleventh Circuit ultimately relied

upon is the fact that the law originally designating

Georgia’s annotated code as its official code was

adopted through bicameralism and presentment. Pet.

App. 47a (citing Ga. Code Ann. 1-1-1). This again is

true of every official annotated state code. Every State

or territory that has chosen to make its official code an

annotated code did so through a law enacted through

bicameralism and presentment (with the exception of

Nebraska, which has a unicameral legislature).6

In sum, two of the three factors on which the Eleventh Circuit relied to hold that Georgia’s annotations

are not copyrightable are true, by definition, of every

official annotated state code. And the third factor is

true of virtually every official annotated state code in

which the State (or the annotators with which it contracts) holds a copyright. Therefore, the decision below,

if adopted by this Court, would at the very least

threaten—and likely invalidate—every copyright in an

official annotated state code.

See, e.g., Ala. Code 1-1-14; Alaska Stat. 01.05.006; Ark.

Code Ann. 1-2-102; Colo. Rev. Stat. 2-5-101(3), 2-5-102(1)(b);

Del. Code tit. 1, secs. 101(a), 210(a); Kan. Stat. Ann. 77-133(h),

77-137; Miss. Code Ann. 1-1-7, 1-1-8(1); Neb. Rev. Stat. 49-765,

49-767; N.M. Stat. Ann. 12-1-3, 12-1-7; P.R. Laws Ann. tit. 2, sec.

226; S.C. Code Ann. 2-7-45, 2-13-60(3); Tenn. Code Ann. 1-1105(a), 1-1-111(b); Vt. Stat. Ann. tit. 1, sec. 51, tit. 2, sec. 422(b).

B. Official code annotations’ copyrightability is vital to their continued production

and enhanced public understanding of

the law.

As Georgia explains in its brief, States use copyright protections to facilitate the affordable production

of official annotated codes. Pet. Br. 55-56. With one

exception, each of the amici States has contracted with

a third party to prepare its code’s annotations.7 That

third-party annotator is willing to prepare the annotations at an affordable rate (and in some cases at no cost

at all) because it receives the revenues from the code’s

sale. If States lost their copyrights in their codes’ annotations, those annotations would be reproduced by

actors like the respondent, the annotators’ revenue

stream from their sale of codes would dry up, and the

annotators would demand to be paid more (or at all)

for their work. At that point, amici States would be

faced with the difficult choice of paying substantial

sums to third parties to create annotations for dozens

of volumes of code, or making their official codes unannotated.

If States opted to make their official codes unannotated, the public would lose a valuable legal-research

tool. Although annotations are not authoritative

Amicus State of Kansas is unique in that it self-publishes

its annotated code. The annotations contained in the Kansas Statutes Annotated are the work product of the Office of the Kansas

Revisor of Statutes, which is the holder of the copyright. The

annotations copyrighted by Kansas include summations of

cases, attorney-general opinions, and even law review articles

that address a particular statute.

simply because they appear in an official code, the legal

community still uses them heavily, even in this age of

electronic legal research. For example, one recent survey of hundreds of lawyers found that a majority of the

lawyers surveyed frequently or very frequently use the

annotations in annotated codes to find cases relevant

to their research. Am. Ass’n of Law Libraries Special

Interest Section, A Study of Attorneys’ Legal Research

Practices and Opinions of New Associates’ Research

Skills 29 (2013), available at https://tinyurl.com/

y6xhrcg3. The researchers found no statistically significant difference between younger and older lawyers’

uses of annotations. See id.

Another recent study of hundreds of law-firm librarians found that 70% of those librarians believed

that knowing how to use print codes remains an essential skill. Patrick Meyer, Law Firm Legal Research Requirements and the Legal Academy Beyond Carnegie,

35 Whittier L. Rev. 419, 445 (2014). And 36% believed

that lawyers should usually use print-based codes for

statutory research. Id. at 443. Indeed, many advise

their firm’s lawyers to begin their legal research in annotated codes. See id. at 468, 482.

Outside the legal community, the need for annotated codes is even greater. Pro se litigants, including

prisoners, do not often have access to (or know how to

use) expensive electronic legal research services like

Westlaw or Lexis. With the help of annotated codes,

however, they can find cases that interpret a statute

that affects their interests, read brief summaries of

those cases’ holdings, and look those cases up in

reporters or on the Internet, where most courts’ opinions are now freely available. Absent official annotated

state codes, pro se litigants’ ability to understand the

laws that govern them would be seriously hampered.

Indeed, this Court once summarily affirmed a decision

holding that a state that provided its prisoners with

unannotated state codes denied them reasonable access to the courts because, in part, “[t]here [we]re no

annotated codes” in the state prisons. Gilmore v. Lynch,

319 F. Supp. 105, 110 (N.D. Cal. 1970), aff ’d sub nom.

Younger v. Gilmore, 404 U.S. 15 (1971).8

If States stopped producing official annotated

codes, annotated codes would still exist. But unofficial

annotated codes are no substitute for official annotated

codes. One of the drafters of the legislation that created

Georgia’s official code recently observed that “creating

only an unannotated version would force lawyers to

purchase [two] versions”—the official unannotated

version to ensure accurate citation to the code, and the

unofficial annotated version for the annotations. Elizabeth Holland, Will You Have to Pay for the O.C.G.A.?:

Copyrighting the Official Code of Georgia Annotated,

This Court has since held that prisoners do not have “an

abstract, freestanding right to a law library” and “cannot establish [a due process violation] simply by establishing that [their]

prison’s law library . . . is subpar.” Lewis v. Casey, 518 U.S. 343,

351 (1996). Rather, a prisoner must show that “the alleged shortcomings in the library . . . hindered his efforts to pursue a legal

claim.” Id. Public Resource is mistaken, then, in suggesting that

Gilmore is support for its claim of a due-process right of free access to annotations in official annotated codes. BIO 34. What

Gilmore does show, however, is this Court’s recognition of annotated codes’ profound utility.

26 J. Intell. Prop. L. 99, 111 (2019). Indeed, the decision

below noted in support of its holding that relying on an

unofficial code for statutory text is a risky business.

Pet. App. 41a.

Moreover, as Georgia explains in its brief, while

States require the contractors that prepare their official codes to sell them at an affordable rate, unofficial

codes are typically far more expensive. Pet. Br. 11, 55.

In States where the publishers of unofficial annotated

codes have no official annotated code for competition,

an annotated code can be a five-figure purchase. See,

e.g., Thomson Reuters, West’s Florida Statutes Annotated, available at https://tinyurl.com/y2os7ryo. In

States like Georgia that have official annotated codes,

an annotated code can cost as little as $400. Pet. Br. 11.

Allowing copyrights to subsist in official annotated

codes ensures that an invaluable research aid will remain within the means of small firms and solo practitioners, the clients they serve, and the general public.

------------------------------------------------------------------

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

LESLIE RUTLEDGE

Arkansas Attorney General

KEVIN G. CLARKSON

Alaska Attorney General

NICHOLAS J. BRONNI

Arkansas Solicitor General

Counsel of Record

LAWRENCE G. WASDEN

Idaho Attorney General

DEREK SCHMIDT

Kansas Attorney General

JIM HOOD

Mississippi Attorney General

DOUGLAS J. PETERSON

Nebraska Attorney General

ALAN WILSON

South Carolina

Attorney General

JASON R. RAVNSBORG

South Dakota

Attorney General

VINCENT M. WAGNER

Deputy Solicitor General

DYLAN L. JACOBS

ASHER STEINBERG

Assistant Solicitors General

ARKANSAS ATTORNEY

GENERAL’S OFFICE

323 Center Street

Little Rock, Arkansas 72201

(501) 682-6302

nicholas.bronni@

arkansasag.gov

Counsel for Amici Curiae

HERBERT H. SLATERY III

Tennessee Attorney General

and Reporter

SEAN D. REYES

Utah Attorney General

THOMAS J. DONOVAN, JR.

Vermont Attorney General

MARK R. HERRING

Virginia Attorney General

KARL A. RACINE

Attorney General for the

District of Columbia

August 2019

App. 1

APPENDIX A

State

Alabama

Alaska

Arkansas

Colorado

Delaware

District of

Columbia

Idaho

Kansas

Maryland

Minnesota

Mississippi

Nebraska

New Hampshire

New Mexico

North Carolina

North Dakota

Puerto Rico

Rhode Island

South Carolina

South Dakota

Tennessee

Vermont

Virginia

Virgin Islands

Wyoming

Registration No. Date

TX0008663448

Sept. 17, 2018

TX0008570445

Mar. 22, 2018

TX0008590841

June 11, 2018

TX0008381033

Feb. 16, 2017

TX0008551825

Jan. 16, 2018

TX0008566647

Apr. 23, 2018

TX0008588533

TX0008430948

TX0008239025

TX0008269291

TX0008588394

TX0008489689

TX0008532691

TX0008600436

TX0008533641

TX0008589858

TX0008545032

TX0008555142

TX0008549132

TX0008625275

TX0008588806

TX0008530993

TX0008613009

TX0008475282

TX0008604570

Mar. 13, 2018

Jan. 9, 2017

June 30, 2016

Oct. 5, 2015

Apr. 3, 2018

Aug. 1, 2016

Aug. 28, 2017

Dec. 4, 2017

Dec. 19, 2017

Mar. 20, 2018

Dec. 8, 2017

Jan. 16, 2018

Oct. 18, 2017

Aug. 7, 2018

Mar. 19, 2018

Nov. 23, 2017

May 10, 2018

May 24, 2017

Feb. 12, 2018

App. 2

APPENDIX B

State

Alabama

Alaska

Arkansas

Colorado

Annotation Preparation

Process

Ala. Code 29-5A-22 (code commissioner supervises compilation of

code); Ala. Code 29-5A-1(a) (legislative council appoints code commissioner); Ala. Code 29-6-1(a)

(legislative council is comprised

of state legislators).

Alaska Stat. 24.20.070(b) (revision

of code is a responsibility of legislative council); Alaska Stat. 24.20.020

(legislative council is comprised of

state legislators); Ark. Code Ann. 12-303(a)(1) (code revision commission supervises revision of code).

Ark. Code Ann. 1-2-303(a)(1) (code

revision commission supervises revision of code); Ark.Code Ann. 1-2301(b) (majority of members of

commission are members of state

legislature, while the balance of

members are appointed by the

state supreme court).

Colo. Rev. Stat. 2-5-101-02 (revisor

of statutes, under supervision and

direction of legislative committee,

supervises preparation of code).

App. 3

State

Delaware

Kansas

Maryland

Minnesota

Annotation Preparation

Process

Del. Code Ann. tit. 1, sec. 210(b)

(revisors of statutes, in consultation with legislative council,

supervise preparation of code);

Del. Code Ann. tit. 29, sec. 1101

(legislative council is comprised

of state legislators).

Kan. Stat. Ann. 77-133 (revisor of

statutes supervises preparation of

code); Kan. Stat. Ann. 46-1211(a)

(revisor is appointed by legislative

coordinating council); Kan. Stat.

Ann. 46-1201(a) (legislative coordinating council is comprised of state

legislators).

Md. Code Ann., State Gov’t 21258(a)(1)(i) (executive director of

department of legislative services

supervises preparation of annotated

code); Md. Code Ann., State Gov’t 21203(a) (executive director is appointed by president of the state

senate and speaker of state house).

Minn. Stat. 3C.08 (revisor of statutes supervises preparation of

code); Minn. Stat. 3C.01 (legislative

coordinating commission appoints

revisor); Minn. Stat. 3.303 (legislative coordinating commission is

comprised of state legislators).

App. 4

State

Annotation Preparation

Process

Mississippi

Miss. Code Ann. 1-1-107 (legislative

committee supervises preparation

of code); Miss. Code Ann. 1-1-103

(committee is comprised of state

legislators).

Nebraska

Neb. Rev. Stat. 49.702 (revisor of

statutes supervises preparation of

code); Neb. Rev. Stat. 50-401.01(1)(2) (revisor of statutes is appointed

by executive board of legislative

council, which is comprised of state

legislators).

New Hampshire N.H. Rev. Stat. Ann. 17-A:1 (director of legislative services supervises preparation of code); N.H.

Rev. Stat. Ann. 17-A:2 (director of

legislative services is appointed by

legislative committee).

New Mexico

N.M. Stat. Ann. 12-1-3 (New Mexico compilation commission supervises preparation of code); N.M.

Stat. Ann. 12-1-2 (commission is

presided over by the state supreme

court’s chief justice or a justice he

designates, and includes the director of the legislative council service).

North Carolina N.C. Gen. Stat. 164-10 (legislative

services office supervises preparation of code).

App. 5

State

Puerto Rico

Rhode Island

South Carolina

South Dakota

Tennessee

Annotation Preparation

Process

P.R. Laws Ann. tit. 2, sec. 223

(leaders of legislature supervise

preparation of code).

R.I. Gen. Laws 43-4-18 (office of

law revision supervises preparation

of code); R.I. Gen. Laws. 22-11-3.2

(legislative committee appoints director of office of law revision).

S.C. Code Ann. 2-13-60 (code commissioner supervises preparation of

code); S.C. Code Ann. 2-13-10 (legislative council appoints code commissioner); S.C. Code Ann. 2-11-10

(legislative council is comprised of

state legislators).

S.D. Codified Laws 2-16-6 (code

commission supervises preparation

of code); S.D. Codified Laws 2-16-3

(majority of code commission members are state legislators or appointees of legislative research council).

Tenn. Code Ann. 1-1-105 (code commission supervises preparation of

code); Tenn. Code Ann. 1-1-101

(code commission is comprised of

state supreme court’s chief justice,

two members appointed by him, a

director of the general assembly’s

office of legal services, and the

state’s attorney general).

App. 6

State

Vermont

Virginia

Virgin Islands

Annotation Preparation

Process

Vt. Stat. Ann. tit. 2, secs. 421-23

(legislative council supervises

preparation of code); Vt. Stat. Ann.

tit. 2, sec. 402 (legislative council

consists of state legislators).

Va. Code Ann. 30-146 (code commission supervises preparation of

code); Va. Code Ann. 30-145 (code

commission is comprised of a mix

of state legislators, state-court

judges, former state legislators, appointees of leaders and committees

of the state legislature, and executive-branch officials).

V.I. Code Ann. tit. 2, sec. 210 (code

revisor supervises preparation of

code); V.I. Code Ann. tit. 2, sec. 209

(code revisor is appointed by president of the legislature).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.