Amicus Curiae Brief — Georgia, et al., Petitioners v. Public.Resource.Org, Inc.
Supreme Court briefOct 11, 2019
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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 THE R STREET INSTITUTE, THE
WIKIMEDIA FOUNDATION, AND PUBLIC
KNOWLEDGE AS AMICI CURIAE IN SUPPORT OF
RESPONDENT
Charles Duan
Counsel of Record
R Street Institute
1212 New York Ave NW Ste 900
Washington DC 20005
(202) 525-5717
cduan@rstreet.org
Counsel for amici curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . .
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . .
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . .
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
ii
1
2
4
Official Annotations Have Long Been Edicts of Government and Integral Parts of the Law . . . . . . . . . 4
A. Rome: Official Commentaries Were Jus Scripta
from the Republic Through Justinian . . . . . . . 4
B. Dynastic China: Official Annotations Literally
Intertwined with Statutory Law . . . . . . . . . . 7
C. England, 1485–1490: Nonbinding “Englished”
Law Secures the Crown’s Authority . . . . . . . . 9
D. England, 1520–1640: Promulgated Explanations of Law Counteract Absolutist Monarchy . . 11
E. England, 1640–1642: Printing of Parliamentary
Debates Plants Seeds of Democracy . . . . . . . . 14
F. Great Britain and New York, 1762–1796: Suppression of Debate Printing Sparks Demand for
Freedom of Speech . . . . . . . . . . . . . . . . . . 16
G. Virginia, 1846–1887: The Commonwealth Annotates Official Codes Despite Flagrant Copying . . 19
II. History Counsels a Conservative Approach to State
Assertion of Copyright in Legal Materials . . . . . . . 23
A. Edicts of Government, and Law Generally, Are
Not Limited to Acts of Binding Legal Force . . . 23
B. Control over the Reasons and Explanations of
Law Confers Undue Power on Government and
the Legal Profession . . . . . . . . . . . . . . . . . 26
C. Unlike Case Reports or Treatises, Annotated
Official Codes Are a Traditional State Dictum . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 30
APPENDIX A: Quotation and Citation Conventions . . . . 31
(i)
TABLE OF AUTHORITIES
In a brief that considers the relationship between statutes
and other government works, the construction of the Table of
Authorities is unusually a matter of salience. This table categorizes as “Statutes” any compilations of statutory law or works
that would have been cited as law, including historical reprints
or translations of statutory codes. The Institutes of Gaius, for
example, are categorized as statutes despite originally being
a private commentary, because starting with at least Valentinian III, Gaius was deemed to have legal force.
Cases
Brass Crosby’s Case,
95 Eng. Rep. 1005 (K.B. 1771) . . . . . . . . . . . . . . . 17
Code Revision Commission ex rel. General Assembly of
Georgia v. Public.Resource.Org, Inc.,
906 F.3d 1229 (11th Cir. 2018) . . . . . . . . . . . . . . . 25
Story’s Executors v. Holcombe,
23 Fed. Cas. 171 (C.C.D. Ohio 1847) . . . . . . . . . . . . 22
The King v. Wright,
101 Eng. Rep. 1396 (K.B. 1799) . . . . . . . . . . . . . . 14
Thomas Bonham
v. College of Physicians (Dr. Bonham’s Case),
77 Eng. Rep. 638 (C.P. 1610) (Coke, C.J.) . . . . . . . . . 28
Tome v. United States,
513 U.S. 150 (1995) . . . . . . . . . . . . . . . . . . . . . . 25
Wason v. Walter,
38 Eng. Rep. 34 (Q.B. 1868) . . . . . . . . . . . . . . . . 14
Yates v. United States,
135 S. Ct. 1074 (2015) . . . . . . . . . . . . . . . . . . . . 26
(ii)
(iii)
Statutes
17 U.S.C. § 506(a) . . . . . . . . . . . . . . . . . . . . . . . . 19
Act to Provide for the Adoption, Printing and Distribution of the Code of Alabama, ch. 9, 1851 Ala. Acts
22 (Feb. 5, 1852), https://hdl.handle.net/2027/nyp.
33433001248354?urlappend=%3Bseq=30 . . . . . . . . . 19
Act to Provide for the Publication of the Code of Virginia,
ch. 2, 1849 Va. Acts 255 (Aug. 16, 1849), https://hdl.
handle.net/2027/nyp.33433007048022?urlappend=%
3Bseq=263 . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Act to Provide for the Revisal of the Civil Code of
This Commonwealth, ch. 34, 1845 Va. Acts 26
(Feb. 20, 1846), https://hdl.handle.net/2027/nyp.
33433007047982?urlappend=%3Bseq=34 . . . . . . . . . 20
Ala. Code 797 (John J. Ormond et al. eds., 1852), https://
catalog.hathitrust.org/Record/008597542 . . . . . . . . . 20
De Responsis Prudentium,
Cod. Th. 1.4, at 19–20 (P. Krueger ed., Berlin,
Weidmannsche Buchhandlung 1923) (a.d. 426),
https://catalog.hathitrust.org/Record/000647037 . . . . 6
Dig. (Charles Henry Monro trans., 1904) (a.d. 533),
https://catalog.hathitrust.org/Record/001624836 . . . 4, 6
G. Inst. (Edward Poste & E.A. Whittuck trans., 4th ed.,
Oxford, Clarendon Press 1904) (c. a.d. 161), https://oll.
libertyfund.org/titles/gaius-institutes-of-roman-law . . 5
Bill of Rights, 1689, 1 W. & M. sess. 2, c. 2, 6 Stat. Realm
142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
J. Inst. (J.B. Moyle trans., 5th ed., Oxford, Clarendon
Press 1913) (a.d. 533), https://catalog.hathitrust.org/
Record/001881879 . . . . . . . . . . . . . . . . . . . . . . 5
(iv)
Laws & Liberties of Mass. (Max Farrand ed.,
Harvard Univ. Press 1929) (1648) . . . . . . . . . . . . . 19
On the Confirmation of the Digest (Constitutio Tanta)
(a.d. 533), in 1 Dig. xxv (Charles Henry Monro
trans., 1904) (a.d. 533), https://catalog.hathitrust.org/
Record/001624836 . . . . . . . . . . . . . . . . . . . . . . 6
Stat. Hen. VII (John Rae ed., London, John Camden
Hotten 1869) (1489), https://catalog.hathitrust.org/
Record/100227691 . . . . . . . . . . . . . . . . . . . . . . 10
Stat. Realm (London, Dawsons 1810–1828), https://
catalog.hathitrust.org/Record/012297566 . . . . . . . . . 9
T’ang Code (Wallace Johnson trans., Princeton Univ.
Press 1979) (a.d. 653) (China) . . . . . . . . . . . . . . . 8
Va. Code (2d ed. 1860), https://catalog.hathitrust.org/
Record/009788767 . . . . . . . . . . . . . . . . . . . . . . 22
——— ch. 65, n., at 378 (2d ed. 1860), https://catalog.
hathitrust.org/Record/009788767 . . . . . . . . . . . . . 22
——— ch. 177, § 4 note, at 671 (1849), https://catalog.
hathitrust.org/Record/008599136 . . . . . . . . . . . . . 21
——— ch. 177, § 7, at 672 (1849), https://catalog.
hathitrust.org/Record/008599136 . . . . . . . . . . . . . 21
——— (1887) . . . . . . . . . . . . . . . . . . . . . . . . . 22
——— ch. 178, n. (1887) . . . . . . . . . . . . . . . . . . . 22
Other Sources
1 Annals of Cong. 443 (Joseph Gales ed., 1834) (statement
of Rep. Jackson on June 8, 1789), https://catalog.
hathitrust.org/Record/001719524 . . . . . . . . . . . . . 18
(v)
1 Journals of the House of Commons 125 (1802) (resolution and order of Feb. 14, 1581), https://www.britishhistory.ac.uk/commons-jrnl/vol1/pp125-127 . . . . . . . 15
Frank Frost Abbott, A History and Description
of Roman Political Institutions (3d ed. 1911),
https://catalog.hathitrust.org/Record/000458953 . . . . 5
Samuel Adams, Letter to Arthur Lee (July 31, 1771), in
2 Richard Henry Lee, Life of Arthur Lee, LL.
D. 173 (Boston, Wells & Lilly 1829), https://catalog.
hathitrust.org/Record/000364570 . . . . . . . . . . . . . 18
Derk Bodde & Clarence Morris, Law in Imperial
China (1967) . . . . . . . . . . . . . . . . . . . . . . . . 8–9
David S. Bogen, The Origins of Freedom of Speech and
Press, 42 Md. L. Rev. 429 (1983) . . . . . . . . . . . . . 18
Books and Society in History (Kenneth E. Carpenter
ed., 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Michael Bryan, Early English Law Reporting, 4 U.
Melb. Collections 45 (2009), https://museumsand
collections.unimelb.edu.au/__data/assets/pdf_file/
0005/1378841/bryan.pdf . . . . . . . . . . . . . . . . . . . 28
Robert C. Byrd, The Senate of the Roman
Republic: Addresses on the History of Roman
Constitutionalism (1995) . . . . . . . . . . . . . . . . 5
Cabinet Office, Guide to Making Legislation
(July 2017) (U.K.), https://www.gov.uk/government/
publications/guide-to-making-legislation . . . . . . . . . 28
Ernest Caldwell, Social Change and Written Law in
Early Chinese Legal Thought, 32 L. & Hist. Rev. 1
(2014), https://eprints.soas.ac.uk/14585/1/Caldwell_
Law%20and%20History%20Review%20Article%
2032.1.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(vi)
Cobbett’s Parliamentary History of England
(London, T.C. Hansard 1807–1820), https://catalog.
hathitrust.org/Record/012499679 . . . . . . . . . . . . . 17
2 Edward Coke, To the Reader, in The Reports of
Sir Edward Coke iii (London, J. Butterworth &
Son 1826) (c. 1600), https://catalog.hathitrust.org/
Record/008595440 . . . . . . . . . . . . . . . . . . . . . . 13
Collectanea Juridica, Consisting of Tracts
Relative to the Law and Constitution of
England (Francis Hargrave ed., London, W. Clarke
& Sons 1792), https://catalog.hathitrust.org/Record/
008967683 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A.D.T. Cromartie, The Printing of Parliamentary
Speeches November 1640–July 1642, 33 Hist. J. 23
(1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Frederick W. Dingledy, From Stele to Silicon: Publication of Statutes, Public Access to the Law, and the
Uniform Electronic Legal Material Act, 111 L. Libr.
J. 165 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 20
———, The Corpus Juris Civilis: A Guide to Its History
and Use, 35 Legal Reference Services Q. 231
(2016) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25, 29
Giuseppe Falcone, The Prohibition of Commentaries
to the Digest and the Antecessorial Literature, 9
Subseciva Groningana 1 (2014) . . . . . . . . . . . . . 6
The Federalist No. 49 (James Madison) . . . . . . . . . . 16
John Fortescue, De Laudibus Legum Angliae
[Commendation of the Laws of England]
(Francis Grigor trans., London, Sweet & Maxwell
1917) (c. 1468–1471), https://catalog.hathitrust.org/
Record/100766218 . . . . . . . . . . . . . . . . . . . . . . 10
(vii)
Benjamin Franklin, Letter to Joseph Galloway (Apr.
20, 1771), https://founders.archives.gov/documents/
Franklin/01-18-02-0052, in 18 The Papers of
Benjamin Franklin 77 (Ellen R. Cohn et al. eds.,
1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
H. Tomás Gómez-Arostegui, The Untold Story of the
First Copyright Suit Under the Statute of Anne in
1710, 25 Berkeley Tech. L.J. 1247 (2010) . . . . . . . . 14
Howard Jay Graham, “Our Tong Maternall Maruellously Amendyd and Augmentyd”: The First
Englishing and Printing of the Medieval Statutes at
Large, 1530–1533, 13 UCLA L. Rev. 58 (1965) . . . . . . 11
John Chipman Gray, The Nature and Sources
of the Law (1909), https://catalog.hathitrust.org/
Record/001624443 . . . . . . . . . . . . . . . . . . . . . . 6
1 Fulke Greville, Poems of Monarchy (1670), in
The Works in Verse and Prose Complete of
the Right Honourable Fulke Greville, Lord
Brooke 5 (N.Y., AMS Press 1966) (1870), https://
catalog.hathitrust.org/Record/101863538 . . . . . . . . . 12
David J. Harvey, The Law Emprynted and Englysshed: The Printing Press as an Agent of
Change in Law and Legal Culture 1475–1642
(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
John W. Head & Yanping Wang, Law Codes in
Dynastic China: A Synopsis of Chinese History
in the Thirty Centuries from Zhou to Qing
(2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–9
W.S. Holdsworth, A History of English Law (3d ed.
1922–1938), https://catalog.hathitrust.org/Record/
002029734 . . . . . . . . . . . . . . . . . . . . . . . . . 10, 28
(viii)
———, Sources and Literature of English Law
(1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
William Hudson, A Treatise on the Court of StarChamber (c. 1621), in 2 Collectanea Juridica,
Consisting of Tracts Relative to the Law and
Constitution of England 1 (Francis Hargrave
ed., London, W. Clarke & Sons 1792), https://catalog.
hathitrust.org/Record/008967683 . . . . . . . . . . . 12–13
Introduction to Stat. Realm xxi (London, Dawsons
1810–1828), https://catalog.hathitrust.org/Record/
012297566 . . . . . . . . . . . . . . . . . . . . . . . . . 9–10
Wallace Johnson, Introduction to T’ang Code 3 (Wallace
Johnson trans., Princeton Univ. Press 1979) (a.d. 653)
(China) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 25
Richard Henry Lee, Life of Arthur Lee, LL.
D. (Boston, Wells & Lilly 1829), https://catalog.
hathitrust.org/Record/000364570 . . . . . . . . . . . . . 18
James Legge, The Chinese Classics (London,
Trübner & Co. 1861–1872), https://catalog.hathitrust.
org/Record/100653303 . . . . . . . . . . . . . . . . . . . 8
Letter of Junius, from the Public Advertiser, April
22, Va. Gazette (Williamsburg, William Rind),
June 20, 1771, at 1, https://research.history.org/
DigitalLibrary/va-gazettes/VGSinglePage.cfm?
issueIDNo=71.R.16 . . . . . . . . . . . . . . . . . . . . . 18
Livy, Ab Urbe Condita (B.O. Foster trans., Harvard Univ. Press 1919) (c. 27 b.c.), https://catalog.
hathitrust.org/Record/007114827 . . . . . . . . . . . . . 4
John Locke, An Essay Concerning Human Understanding (Alexander Campbell Fraser ed.,
Oxford, Clarendon Press 1894) (1689), https://catalog.
hathitrust.org/Record/001383707 . . . . . . . . . . . . . 16
(ix)
London, April 2, Va. Gazette (Alex Purdie & John
Dixon), June 13, 1771, at 1, https://research.history.
org/DigitalLibrary/va-gazettes/VGSinglePage.cfm?
issueIDNo=71.PD.26 . . . . . . . . . . . . . . . . . . . . 18
James M. Matthews, Digest of the Laws of
Virginia of a Civil Nature (Richmond, J.W.
Randolph 1856–1857), https://catalog.hathitrust.org/
Record/010448056 . . . . . . . . . . . . . . . . . . . . . . 21
Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament
(10th ed., London, William Clowes & Sons, Ltd. 1893),
https://catalog.hathitrust.org/Record/001145480 . . 15, 28
Roger P. Mellen, John Wilkes and the Constitutional
Right to a Free Press in the United States, 41
Journalism Hist. 2 (2015) . . . . . . . . . . . . . . . . . 18
Elisabeth Noelle-Neumann, Public Opinion and the
Classical Tradition: A Re-Evaluation, 43 Pub.
Opinion Q. 143 (1979) . . . . . . . . . . . . . . . . . . . . 16
Eric W. Nye, A Method for Determining Historical
Monetary Values, https://www.uwyo.edu/numimage/
currency%20conversion.htm . . . . . . . . . . . . . . . . 15
Kent C. Olson, State Codes, in Virginia Law Books:
Essays and Bibliographies 1 (W. Hamilton
Bryson ed., 2000) . . . . . . . . . . . . . . . . . . . . . . 20
Katharine F. Pantzer, Printing the English Statutes,
1484–1640: Some Historical Implications, in Books
and Society in History 69 (Kenneth E. Carpenter
ed., 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 9–10
The Papers of Benjamin Franklin (Ellen R. Cohn
et al. eds., 1959–2018) . . . . . . . . . . . . . . . . . . . . 18
(x)
Clive Parry, Legislatures and Secrecy, 67 Harv. L. Rev.
737 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
John M. Patton & Conway Robinson, Report
of the Revisors of the Code of Virginia
(Richmond, Samuel Shepherd 1847–1849), https://
catalog.hathitrust.org/Record/008965211 . . . . . 20–21, 23
Theodore F.T. Plucknett, Bonham’s Case and Judicial
Review, 40 Harv. L. Rev. 30 (1926) . . . . . . . . . . . . 29
Polybius, The Histories (W.R. Paton trans., London,
W. Heinemann 1972) (c. a.d. 150), https://catalog.
hathitrust.org/Record/001181795 . . . . . . . . . . . . . 5
John Rastell, Prohemium to The Abbreviation of the
Statutes (1519), reprinted in 1 Typographical
Antiquities 327 (Joseph Ames & William Herbert
eds., London, Soc’y of Antiquaries 1785), https://
catalog.hathitrust.org/Record/009778143 . . . . . . . 11–12
Mathias Reimann, The Historical School Against
Codification: Savigny, Carter, and the Defeat of the
New York Civil Code, 37 Am. J. Comp. L. 95 (1989) . . . 27
Xin Ren, Tradition of the Law and Law of the
Tradition: Law, State, and Social Control in
China (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Reports of Sir Edward Coke (London, J.
Butterworth & Son 1826) (c. 1600), https://catalog.
hathitrust.org/Record/008595440 . . . . . . . . . . . . . 13
Richard J. Ross, The Commoning of the Common Law:
The Renaissance Debate over Printing English Law,
1520–1640, 146 U. Pa. L. Rev. 323 (1998) . . . . . . . 11–13
Arthur Schiller, Senatus Consulta in the Principate, 33
Tul. L. Rev. 491 (1959) . . . . . . . . . . . . . . . . . . . 5
(xi)
Speeches and Passages of This Great and Happy
Parliament: From the Third of November,
1640, to This Instant June, 1641 (London, William
Cooke 1641), https://catalog.hathitrust.org/Record/
102178761 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Ch‘un Ts‘ew [Chunqiu]; with the Tso Chuen
[Zuozhuan] (c. 300 b.c.), in 5 James Legge, The
Chinese Classics (London, Trübner & Co. 1872),
https://catalog.hathitrust.org/Record/100653303 . . . . 8
Peter D.G. Thomas, John Wilkes and the Freedom of the
Press (1771), 33 Bull. Inst. Hist. Res. 86 (1960) . . . 18
———, The Beginning of Parliamentary Reporting in
Newspapers, 1768–1774, 74 Eng. Hist. Rev. 623
(1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Kaius Tuori, The Ius Respondendi and the Freedom of
Roman Jurisprudence, 51 Revue Internationale
des Droits de l’Antiquité (3e série) 295 (2004),
http://local.droit.ulg.ac.be/sa/rida/file/2004/Tuori2.pdf . 6
Typographical Antiquities (Joseph Ames & William
Herbert eds., London, Soc’y of Antiquaries 1785),
https://catalog.hathitrust.org/Record/009778143 . . . . 11
11 James Ussher, The Power Communicated by God
to the Prince (c. 1600), in The Whole Works
of the Most Rev. James Ussher, D.D. 223
(Dublin, Hodges, Smith, & Co. 1864), https://catalog.
hathitrust.org/Record/100872841 . . . . . . . . . . . . . 13
Virginia Law Books: Essays and Bibliographies
(W. Hamilton Bryson ed., 2000) . . . . . . . . . . . . . . 20
Frederick Parker Walton, Historical Introduction to the Roman Law (1903), https://catalog.
hathitrust.org/Record/100326077 . . . . . . . . . . . . . 4
(xii)
Charles Warren, A History of the American
Bar (1911), https://catalog.hathitrust.org/Record/
001625615 . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Alan Watson, Sources of Law, Legal Change, and
Ambiguity (1984) . . . . . . . . . . . . . . . . . . . . . . 6
The Whole Works of the Most Rev. James Ussher,
D.D. (Dublin, Hodges, Smith, & Co. 1864), https://
catalog.hathitrust.org/Record/100872841 . . . . . . . . . 13
Carl Wittke, The History of English Parliamentary
Privilege, 26 Ohio St. U. Bull. No. 2 (1921), https://
catalog.hathitrust.org/Record/100326514 . . . . . . . . . 14
The Works in Verse and Prose Complete of the
Right Honourable Fulke Greville, Lord
Brooke (N.Y., AMS Press 1966) (1870), https://
catalog.hathitrust.org/Record/101863538 . . . . . . . . . 12
Alfred F. Young, The Democratic Republicans of
New York: The Origins, 1763–1797 (1967) . . . . . . . 19
David Zaret, Petitions and the “Invention” of Public
Opinions in the English Revolution, 101 Am. J. Soc.
1497 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Liang Zhiping, Explicating “Law”: A Comparative
Perspective of Chinese and Western Legal Culture, 3
J. Chinese L. 55 (1989) . . . . . . . . . . . . . . . . . . . 7
INTEREST OF AMICI CURIAE
Amici curiae1 are nonprofit organizations interested
in promoting balanced copyright law that appropriately
weighs the public’s interest in access to knowledge.
The R Street Institute is a nonpartisan public-policy
research organization that promotes free markets as well
as limited yet effective government, including properly
calibrated legal and regulatory frameworks that support
economic growth and individual liberty.
The Wikimedia Foundation is an organization that
hosts and supports twelve free-knowledge projects including Wikipedia, whose mission is to develop and maintain factual and educational content created and moderated by volunteer content creators, and to provide this
content free of charge.
Public Knowledge is an organization dedicated to preserving the openness of the Internet and the public’s
access to knowledge, promoting creativity through balanced intellectual property rights, and upholding and protecting the rights of consumers touse innovative technology lawfully.
1
All parties consent to the filing of this brief. No counsel for a
party authored this brief in whole or in part, and no one other than
amici or their counsel made a monetary contribution to fund the
preparation or submission of this brief.
1
SUMMARY OF ARGUMENT
Twenty-five centuries of history reject the foundation
of Petitioners’ case. In contending that it may assert federal copyright law against its citizens to block distribution of the Official Code of Georgia Annotated, the State
of Georgia contemplates a bright line between its uncopyrightable statutes and all other edicts of government that
“lack the force of law.” No such line exists. On the contrary, sovereigns since antiquity have promulgated not
only statutes but also proclamations, explanations, commentaries, and even annotations, all of which, even lacking “force of law,” carry great weight for the rule of law
and the functioning of government. History reveals not
a binary divide between statutes and all else, but a spectrum of edicts of government.
To fill this historical void in the record, this brief surveys nonbinding pronouncements, particularly attached
to statutes or codes of law, across time and around the
world, from Rome and China to England and America. This historical review—which traverses a Roman
whistleblower, the Justinian Code, a dark side of Confucianism, English libertarianism, New York suppressing
the press, and the Mayor of London being thrown in jail—
reveals multiple important lessons that question the basis
upon which Georgia’s argument stands.
First, “the law,” or that class of government edicts
for which the interest of unrestricted citizen access is
at its apex, is not limited to statutes of binding force.
Law, and access thereto, serves many purposes: advising citizens on the state’s normative views, crystallizing
popular opinion on future policy, and delineating the relationship between citizen and state. Nonbinding pronouncements serve these purposes too, by demonstrat2
3
ing the logic, motivations, and reasoning of the sovereign.
Thus, governments have repeatedly treated nonbinding
pronouncements as part and parcel of the law. Georgia’s
determinative distinction has not existed for millennia.
Second, concealment of nonbinding legal pronouncements has long handed undue power to both the state
and the legal bar. Where the reasons behind the law are
not made available to the public, the sovereign enjoys outsized discretion over citizens, and lawyers enjoy outsized
power to shape the law toward their interests rather than
the public’s.
Third, annotations to the law are unlike the legal treatises and case reports to which Georgia analogizes. Historically, those private writings have been the domain
of non-state-actor compilers; as such, they are not traditional edicts of government. By contrast, codes of law—
complete with annotations—have long been pronouncements of the sovereign’s intentions. To treat Georgia’s
annotations like a private case report or treatise would,
then, be incongruous with history.
Though this case arises under the Copyright Act, the
determinative principles must reach beyond that law.
This is a case about the relationship of a sovereign to its
citizens, and what the state may withhold from them, regardless of the legal means. The relevant history is that
of the law and how states have been published or withheld it. States have sometimes aggressively promoted
promulgation and sometimes vigorously opposed it. But
history lends to one inexorable conclusion: The law encompasses not just binding statutes but also nonbinding
pronouncements of the sovereign, and foundational principles of limited government, popular sovereignty, and
basic liberty depend on access to the law in whole.
ARGUMENT
I.
Official Annotations Have Long Been
Edicts of Government and Integral
Parts of the Law
In the arc of history, Georgia’s annotated code is not
unusual. History is replete with sovereigns propounding annotated codes, official commentaries, and other nonbinding pronouncements, consideration of which is instructive not just on the disposition of this case, but also
on basic theories of liberty and government.
A.
Rome: Official Commentaries Were Jus
Scripta from the Republic Through
Justinian
The Roman Republic and Empire repeatedly treated
official though nonbinding commentaries as a component
of the law, and valued promulgation of both. As early as
450 b.c., the Roman Republic publicized the famed Law
of the Twelve Tables, inscribed in bronze and posted in
the public square, thereby quelling a threatened class
war arising from “the complaint on the part of the plebs,
that the law was an affair of mystery.”2 In 304 b.c., a
court clerk named Gnaeus Flavius became a local hero by
leaking the Roman pontiffs’ secret interpretations of the
Twelve Tables, winning him high political offices.3
2
Frederick Parker Walton, Historical Introduction to
the Roman Law 109 (1903), available online; see 2 Livy, Ab Urbe
Condita 3.33–.34, 3.57.10, at 109–13, 195 (B.O. Foster trans., Harvard Univ. Press 1919) (c. 27 b.c.), available online. Locations of
authorities available online are shown in the Table of Authorities.
3
See 4 Livy, supra note 2, at 9.46.5, at 351; Dig. 1.2.2.7, at 8
(Charles Henry Monro trans., 1904) (a.d. 533), available online (Pomponius).
4
5
Emphasis on publicizing law developed into the Roman concept of jus scripta, written law that held a place
higher than unwritten, customary law, jus non scripta.4
Jus scripta was not just statutes, though.5 Among other
things, it encompassed the Senate’s opinions, senatusconsulta, which at least during the Republic were treated
as nonbinding commentary on statutes: “It could not annul a lex . . . . It could, however, interpret enactments of
the popular assembly.”6 Nevertheless, senatusconsulta
weighed heavily on judges, and magistrates ignored them
at their peril.7
Roman written law also incorporated private legal
scholars’ opinions, in the form of responses to questions
of law called responsa prudentium.8 Even here the imperial imprimatur was important. Roman scholars were
free to opine on cases in letters to judges, but starting with Augustus the emperors conferred jus respondendi upon select scholars, such that their answers were
“in pursuance of an authorization” and thus effectively
4
See J. Inst. 1.2.10, at 6 (J.B. Moyle trans., 5th ed., Oxford, Clarendon Press 1913) (a.d. 533), available online (comparing this division
to Athenian and Lacedaemonian practice that “observed only what
they had made permanent in written statutes”).
5
See G. Inst. 1.2, at 1 (Edward Poste & E.A. Whittuck trans., 4th
ed., Oxford, Clarendon Press 1904) (c. a.d. 161), available online.
6
Frank Frost Abbott, A History and Description of Roman Political Institutions 233 (3d ed. 1911), available online;
see G. Inst., supra note 5, at 1.4, at 2; 3 Polybius, The Histories
6.16.2, at 305–07 (W.R. Paton trans., London, W. Heinemann 1972)
(c. a.d. 150), available online.
7
See Robert C. Byrd, The Senate of the Roman Republic:
Addresses on the History of Roman Constitutionalism 44
(1995); Arthur Schiller, Senatus Consulta in the Principate, 33 Tul.
L. Rev. 491, 492 (1959).
8
See G. Inst., supra note 5, at 1.7, at 2.
6
binding precedent.9 Multiplication of unofficial commentaries prompted Valentinian III in a.d. 426 to issue the
Law of Citations, designating several prominent jurists
as official—but not binding, for when the jurists “were all
ranged on one side and an imperial rescript was on the
other, the latter would prevail.”10
The apex of symbiosis between private commentary
and imperial power was Justinian I’s law of a.d. 529–
534, modernly called the Corpus Juris Civilis.11 Though
often called a “code,” the Corpus was more than just
the Codex. Concerned as Valentinian was with the proliferation of private commentaries, Justinian formed a
Law Commission—not unlike Georgia’s Code Revision
Commission—to abridge the commentaries.12 The resulting Digest was, in effect, an official annotation to the
Codex, and yet the Digest received no lesser treatment
as a component of Justinian’s law.13
9
Dig., supra note 3, at 1.2.2.49, at 18 (Pomponius); see John Chipman Gray, The Nature and Sources of the Law sec. 426, at
190 (1909), available online; Kaius Tuori, The Ius Respondendi and
the Freedom of Roman Jurisprudence, 51 Revue Internationale
des Droits de l’Antiquité (3e série) 295, 297 (2004), available
online.
10
Alan Watson, Sources of Law, Legal Change, and Ambiguity 8–9 (1984); see De Responsis Prudentium, Cod. Th. 1.4, at
19–20 (P. Krueger ed., Berlin, Weidmannsche Buchhandlung 1923)
(a.d. 426), available online.
11
Frederick W. Dingledy, The Corpus Juris Civilis: A Guide to Its
History and Use, 35 Legal Reference Services Q. 231 (2016).
12
See id. at 234–36.
13
See On the Confirmation of the Digest (Constitutio Tanta)
(a.d. 533) (prohibiting use or creation of other commentaries), in 1
Dig., supra note 3, at xxv, §§ 19, 21, at xxxiv; Giuseppe Falcone, The
Prohibition of Commentaries to the Digest and the Antecessorial Literature, 9 Subseciva Groningana 1, 5–6 (2014).
7
The senatusconsulta, jus respondendi, and Digest reflect a consistent inclusion of nonbinding annotations and
commentaries as a critical part of the complete body of
law in Rome. Petitioners’ distinction between statutes
and annotations is difficult to reconcile with this important precedent to American government.
B.
Dynastic China: Official Annotations
Literally Intertwined with Statutory
Law
Like Rome, historical China treated official annotations as integral components of the law, meriting promulgation to the same extent as statutes.
China has favored promulgation of law since at least
the Legalist–Confucian debate spanning the late Spring
and Autumn Period, 591–453 b.c. The Legalist (fajia)
school preferred efficient, predictable government under
published laws.14 By contrast, the Confucians eschewed
written law in favor of li, or virtue, theorizing that written laws would encourage mere compliance rather than
moral perfection, and preferring the discretion over punishment that li offered rulers.15
The Legalists prevailed as early as 536 b.c., when
the kingdom of Zheng publicly displayed its penal text
(xing shu), cast onto three-legged vessels.16 A neighbor14
See Liang Zhiping, Explicating “Law”: A Comparative Perspective of Chinese and Western Legal Culture, 3 J. Chinese L. 55, 80–84
(1989).
15
See John W. Head & Yanping Wang, Law Codes in Dynastic China: A Synopsis of Chinese History in the Thirty Centuries from Zhou to Qing 49 (2005).
16
See Ernest Caldwell, Social Change and Written Law in Early
Chinese Legal Thought, 32 L. & Hist. Rev. 1, 14–15 (2014), available
online.
8
ing leader criticized this publication, saying, “When the
people know what the exact laws are, they do not stand
in awe of their superiors.”17 Indeed, Confucius himself
is apocryphally said to have lamented, “People will study
the tripods, and not care to know their men of rank.”18
Nevertheless, the Chinese would publish legal codes
for millennia, complete with official but nonbinding commentary. The Han dynasty code of about 200 b.c. supposedly included decisions from prior dynasties (ko) and
“comparisons” (bi) to be used as precedent; these had less
binding power than the statutes but nevertheless were
included in the code.19 The Tang code of a.d. 653 also included extensive commentaries; indeed its original title
was “The Code and the Subcommentary.”20 It is “probable that the commentary was an integral part” of the
code, omission of which “would have deprived the unsuspecting reader of a great deal of necessary information,
as well as of explanations without which the meaning and
intent of the articles [i.e., statutes] could not properly be
understood.”21
Nonbinding annotations to the law were especially
prominent in the Ming dynasty code of 1585, which would
evolve into the Qing dynasty code of 1740.22 In addition
17
The Ch‘un Ts‘ew [Chunqiu]; with the Tso Chuen [Zuozhuan]
(c. 300 b.c.), in 5 James Legge, The Chinese Classics 609 (London, Trübner & Co. 1872), available online.
18
Head & Wang, supra note 15, at 53.
19
See id. at 93–96; Xin Ren, Tradition of the Law and Law of
the Tradition: Law, State, and Social Control in China 23
(1997).
20
Wallace Johnson, Introduction to T’ang Code 3, 39, 43 (Wallace
Johnson trans., Princeton Univ. Press 1979) (a.d. 653) (China).
21
Id. at 43; see Head & Wang, supra note 15, at 125.
22
See Derk Bodde & Clarence Morris, Law in Imperial
China 57, 65–66 (1967).
9
to the statutes (lü), the codes contained “sub-statutes”
(li), descriptions of precedents often arising out of imperial edicts explaining lü.23 The sub-statutes were widely
recognized not to be statutes, but nevertheless carried
such interpretive force that they might effectively nullify
the original intent of the statute.24 The Qing code also included commentaries, some official and some private; the
official commentaries were considered so integral to the
statutes that they were often written in small print literally in between the lines of the statutory text.25
Three millennia of Chinese history reveal a commitment to government promulgation of the law, both
statutes and official annotations. The Han through Qing
codes thus reveal the close tie between official annotations and law.
C.
England, 1485–1490: Nonbinding “Englished” Law Secures the Crown’s
Authority
Throughout the history of England, official but nonbinding pronouncements have been a critical component
of the law, even from the first days of printed matter.
At the onset of printing in the late 15th century,
the official language of English law was not English.
Statutes were titled in Latin and officially written in socalled “law French,” as exemplified by William de Machlinia’s 1484 printing of Richard III’s statutes.26 When
23
See id. at 64–65.
See id. at 67.
25
See id. at 69; Head & Wang, supra note 15, at 210 box VI-3.
26
See Introduction to Stat. Realm xxi, xl (London, Dawsons
1810–1828), available online; Katharine F. Pantzer, Printing the English Statutes, 1484–1640: Some Historical Implications, in Books
24
10
Henry VII took the throne in 1485, Parliament also produced statutes, again officially in law French.27 Yet when
around 1490 the Crown commissioned William Caxton to
print the statutes, Caxton did so in English.28
No doubt the lawyers of the time would have understood Caxton’s translations, although emanations of the
king, as not law. The prevailing view was that law could
be “express[ed] more aptly in French than in English” owing to the many technical terms of law French.29 An English translation would have been considered not merely
unofficial but indeed ambiguous.
Yet England made and promulgated these nonbinding
explanations of the law because doing so served important purposes. By informing the public on the law, the
Crown hoped to instill virtue in its subjects—and, selfishly, to propagandize its own majesty and justness.30
That required the law to be not just public, but understandable to the English subject. Not long after Caxton’s
publication, lawyer and printer John Rastell would deem
and Society in History 69, 71–73 (Kenneth E. Carpenter ed.,
1983).
27
See Introduction, supra note 26, at xli; Pantzer, supra note 26,
at 74.
28
See Introduction, supra note 26, at xli; Pantzer, supra note 26, at
74–75; Stat. Hen. VII (John Rae ed., London, John Camden Hotten
1869) (1489), available online.
29
John Fortescue, De Laudibus Legum Angliae [Commendation of the Laws of England] ch. 48, at 80 (Francis Grigor
trans., London, Sweet & Maxwell 1917) (c. 1468–1471), available online; see 2 W.S. Holdsworth, A History of English Law 481 (3d
ed. 1923), available online (“French continued to be the language of
the law because the technical terms were nearly all French.”).
30
See Pantzer, supra note 26, at 73–75; David J. Harvey, The
Law Emprynted and Englysshed: The Printing Press as an
Agent of Change in Law and Legal Culture 1475–1642, at 24
(2015).
11
Henry VII “worthy to be called the second Solomon” by
virtue of having the statutes “written in the vulgar English tongue and to be published, declared, and imprinted
so that then universally the people of the realm might
soon have the knowledge of the said statutes.”31
Perhaps the Georgia code is not so arcane as law
French, but the terseness of statutes can make them
opaque absent interpretive aids. Both modern official annotations and 15th-century “Englishing” of statutes offer
a window into the legislator’s reasoning. Neither can be
disregarded as part of the law.
D. England, 1520–1640: Promulgated
Explanations of Law Counteract
Absolutist Monarchy
The printing press sparked a debate over the propriety of printing the law, a debate that reveals grave risks
in restricting access to official but nonbinding edicts of
government.32
The “publicists” supported printing the law of England, particularly in English, to improve social morals.33
Lawyer–printer John Rastell, in praising the English
translation of Henry VII’s statutes (and in printing
31
John Rastell, Prohemium to The Abbreviation of the
Statutes (1519), reprinted in 1 Typographical Antiquities 327,
328–29 (Joseph Ames & William Herbert eds., London, Soc’y of Antiquaries 1785), available online.
32
See Richard J. Ross, The Commoning of the Common Law: The
Renaissance Debate over Printing English Law, 1520–1640, 146 U.
Pa. L. Rev. 323, 326–27 (1998).
33
See id. at 329–42; Howard Jay Graham, “Our Tong Maternall
Maruellously Amendyd and Augmentyd”: The First Englishing
and Printing of the Medieval Statutes at Large, 1530–1533, 13 UCLA
L. Rev. 58, 70–72 (1965).
12
his own translation of older statutes into that “vulgar
tongue”), explained in 1519 that “knowledge of the said
statutes” would allow people “better to live in tranquility
and peace.”34 Politician-turned-poet Lord Brooke, after
alluding to Gnaeus Flavius,35 wrote:
Again, laws order’d must be, and set down
So clearly as each man may understand,
Wherein for him, and wherein for the crown,
Their rigor or equality doth stand . . . .36
Opponents of the publicists were primarily lawyers
who stood to lose their monopoly over knowledge of the
law.37 The arguments of these “anti-publicists” illuminate why access to the law ought to encompass official
annotations.
The anti-publicists generally did not oppose publishing binding law, protesting instead publication of the
reasoning behind the law.38 It is “assuredly no matter
of necessity to publish the reasons of the judgment of
the law, or apices [fine points] or fictiones juris to the
multitude,” wrote one lawyer.39 Like the Confucians,
the anti-publicists feared that “the unlearned by bare
34
Rastell, supra note 31, at 329.
See supra note 3 and accompanying text.
36
1 Fulke Greville, Poems of Monarchy (1670), in The Works
in Verse and Prose Complete of the Right Honourable
Fulke Greville, Lord Brooke 5, verse 268, at 101 (N.Y., AMS
Press 1966) (1870), available online.
37
See Ross, supra note 32, at 390.
38
See id. at 354–55.
39
William Hudson, A Treatise on the Court of Star-Chamber
(c. 1621), in 2 Collectanea Juridica, Consisting of Tracts Relative to the Law and Constitution of England 1, 1–2 (Francis
Hargrave ed., London, W. Clarke & Sons 1792), available online; see
Ross, supra note 32, at 358.
35
13
reading” of the law without the training of the Inns of
Court “might suck out errors” and thus “endamage themselves.”40 Worse yet, miscreants could use knowledge of
law as “shifts to cloak their wickedness, rather than to
gain understanding.”41 More selfishly, the anti-publicists
feared that publicizing the law would deny the bar the
ability to characterize and evolve the law through inguild decisions and manuscript-exchange norms that controlled the development of precedents.42
But the most important—and insidious—objection to
law printing was one “married uneasily” to a larger debate over absolutist monarchy.43 Presaging Georgia’s
treatment of its official code as the state’s intellectual
property, many anti-publicists supposed that because the
Crown was the sole fount of power, the law was its “property”; as such there was no more need for the monarch
to explain a law than for a parent to explain punishing a
child.44
Few would accept absolutism today; the contrary
view that law binds the sovereign is foundational to
American government. And insofar as absolutism is rejected, one ought also to reject the anti-publicists’—and
Georgia’s—corollary view that sovereign explanations of
the law do not implicate access concerns.
40
2 Edward Coke, To the Reader, in The Reports of Sir
Edward Coke iii, xxxix–xl (London, J. Butterworth & Son 1826)
(c. 1600), available online; see Ross, supra note 32, at 374–75.
41
Hudson, supra note 39, at 2; Ross, supra note 32, at 376.
42
See Ross, supra note 32, at 432–38.
43
Id. at 452.
44
Id. at 455; see 11 James Ussher, The Power Communicated by
God to the Prince (c. 1600), in The Whole Works of the Most Rev.
James Ussher, D.D. 223, 349 (Dublin, Hodges, Smith, & Co. 1864),
available online.
14
E.
England, 1640–1642: Printing of Parliamentary Debates Plants Seeds of
Democracy
Publishing English parliamentary debates in the mid1600s demonstrates how access to nonbinding but official
materials, in this case legislative history, fosters popular
sovereignty and public representation.
Parliament, even today, nominally holds the power to
render its debates secret and to punish those who publish its proceedings.45 The parliamentary privilege of
“freedom of speech” provides that “debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”46 The
Houses of Parliament interpreted this liberty to entail a
copyright-like power to prohibit anyone—even their own
members—from publishing debates.47
Certainly, privilege was enforceable only by contempt,
as the common law courts refused to apply and indeed
disparaged the secrecy privilege.48 But contempt punish45
See Clive Parry, Legislatures and Secrecy, 67 Harv. L. Rev. 737,
741–43 (1954). Parliamentary privilege differs from “Crown copyright” over statutes and the Bible. Crown copyright would be a poor
antecedent for Georgia, given its origins in religious suppression.
46
Bill of Rights, 1689, 1 W. & M. sess. 2, c. 2, 6 Stat. Realm 142.
47
See Wason v. Walter, 38 Eng. Rep. 34, 45 (Q.B. 1868); Carl Wittke, The History of English Parliamentary Privilege, 26 Ohio St.
U. Bull. No. 2, 50–51 (1921), available online; H. Tomás GómezArostegui, The Untold Story of the First Copyright Suit Under the
Statute of Anne in 1710, 25 Berkeley Tech. L.J. 1247, 1252–53
(2010).
48
See, e.g., Wason, 38 Eng. Rep. at 45; The King v. Wright, 101 Eng.
Rep. 1396, 1399 (K.B. 1799) (“[I]t is of advantage to the public, and
even to the legislative bodies, that true accounts of their proceedings
should be generally circulated . . . .”).
15
ments could be severe.49 In 1581, the House of Commons
charged its member Arthur Hall with “publishing the conferences of this House abroad in print,” and sentenced
him with expulsion, a fine of 500 marks (about $130,000
today), and six months’ imprisonment in the Tower.50
Nevertheless, a healthy industry of printing parliamentary debates began during the Long Parliament of
1640.51 Disregard of the privilege was flagrant: Members
not only published their speeches but occasionally registered them with the Company of Stationers.52 Apart
from sanctions against Sir Edward Dering for publishing not just speeches but also private conversations of
Parliament, parliamentary privilege was essentially unenforced during this period.53
It was a good thing, too, that printing of debates flourished through the Long Parliament, because promulgation of those debates arguably catalyzed modern participatory democracy. Prior to 1640, the average English
subject petitioned Parliament not for public policy change
49
See Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament 88–92 (10th ed.,
London, William Clowes & Sons, Ltd. 1893), available online (noting
unlimited fines and imprisonment as possible punishments).
50
1 Journals of the House of Commons 125, 127 (1802) (resolution
and order of Feb. 14, 1581), available online. To be sure, this was
not Commons’ only charge against Hall, and Hall’s publication was
apparently particularly salacious. On the present-value computation,
see Eric W. Nye, A Method for Determining Historical Monetary
Values, available online.
51
See Speeches and Passages of This Great and Happy
Parliament: From the Third of November, 1640, to This Instant June, 1641 (London, William Cooke 1641), available online;
A.D.T. Cromartie, The Printing of Parliamentary Speeches November 1640–July 1642, 33 Hist. J. 23, 23 (1990).
52
See Cromartie, supra note 51, at 35.
53
See id. at 37.
16
but with private grievances.54 But with the publication
of parliamentary debates, an informed public could understand and thus engage in the political process: “Political discourse in printed texts encouraged readers to
interpret conflict between king and Parliament, and subsequently among parliamentary factions, as an ongoing
debate.”55 In particular, printed political debates allowed
for a new form of petitioning Parliament, in which proponents of change could stir up support by presenting and
critiquing the speeches of members.56
Printing parliamentary debates thus gave rise to
“public opinion” as a political force. Public opinion, in
turn, gave way to notions of popular sovereignty, including Locke’s “law of opinion” and Madison’s sentiment “all
governments rest on opinion.”57 Publication of nonbinding, official pronouncements of the legislature thus engendered the most fundamental principle of American government.
F. Great Britain and New York, 1762–1796:
Suppression of Debate Printing Sparks
Demand for Freedom of Speech
Debate printing in the next century had starker impact on America: It instigated freedom of the press.
54
See David Zaret, Petitions and the “Invention” of Public Opinions in the English Revolution, 101 Am. J. Soc. 1497, 1509–10 (1996).
55
Id. at 1530.
56
See id. at 1532.
57
1 John Locke, An Essay Concerning Human Understanding 2.28.10–.12, at 476–80 (Alexander Campbell Fraser ed., Oxford,
Clarendon Press 1894) (1689), available online; The Federalist
No. 49 (James Madison); see Zaret, supra note 54, at 1540; Elisabeth
Noelle-Neumann, Public Opinion and the Classical Tradition: A ReEvaluation, 43 Pub. Opinion Q. 143, 144–47 (1979).
17
When English newspapers began printing parliamentary debates in the mid-1700s, the House of Commons remarkably did exercise its privilege.58 In January 1762,
Commons imprisoned the printer of the London Chronicle for printing a speech of the Speaker, deterring further
printing of debates for several years.59
The 1768 Middlesex election affair reinvigorated debate reporting, and Parliament again tried to block it.60
In what came to be called the Printers’ Case of 1771, the
House of Commons, led by its member Colonel George
Oslow, summoned eight newspaper printers for contempt
of privilege by printing debates.61 Most confessed and
made contrition on their knees, but John Miller, publisher
of the London Evening Post, refused to appear.62 Commons sent for Miller’s arrest but was thwarted by Brass
Crosby, Lord Mayor of London, who asserted sole jurisdiction for arrests in his city.63 In an infamous move that
triggered days of protests, the House of Commons, frustrated with Crosby for protecting Miller, threw the Lord
Mayor into the Tower instead.64
It is easy to imagine how parliamentary censorship
in 1771 might have influenced Revolution-era American thinking on liberty and speech. There is consid58
See Peter D.G. Thomas, The Beginning of Parliamentary Reporting in Newspapers, 1768–1774, 74 Eng. Hist. Rev. 623, 623
(1959).
59
See id. at 624.
60
See id.
61
See 17 The Parliamentary History of England 59–62 (London, T.C. Hansard 1813), available online.
62
See 17 id. at 85–90.
63
See 17 id. at 98–102.
64
See 17 id. at 157–58, 186–90; Brass Crosby’s Case, 95 Eng. Rep.
1005, 1006–07 (K.B. 1771).
18
erable evidence that it did. The Virginia Gazette predicted that “the present dispute about the liberty of the
press will, in all probability, give a mortal wound to arbitrary power”;65 a week later it ran an open letter of
the pseudonymous English polemicist Junius, excoriating
Parliament’s actions.66 Benjamin Franklin knew of the
incident,67 as did Samuel Adams, who called the affair
“a stretch of arbitrary power.”68 Americans celebrated
John Wilkes, the London alderman who helped orchestrate the showdown between Parliament and the printers,69 for championing freedom of the press.70
Americans continued to find parliamentary privilege antithetical to their principles.71 One member of
Congress declared that congressional debates were “offered to the public view, and held up to the inspection of
the world.”72 And when in 1796, the New York Assembly
jailed newspaper writer William Keteltas for “a breach
65
See London, April 2, Va. Gazette (Alex Purdie & John Dixon),
June 13, 1771, at 1, 2, available online.
66
See Letter of Junius, from the Public Advertiser, April 22, Va.
Gazette (Williamsburg, William Rind), June 20, 1771, at 1, available
online.
67
See Letter from Benjamin Franklin to Joseph Galloway (Apr. 20,
1771), available online, in 18 The Papers of Benjamin Franklin
77 (Ellen R. Cohn et al. eds., 1974).
68
See Letter from Samuel Adams to Arthur Lee (July 31, 1771),
in 2 Richard Henry Lee, Life of Arthur Lee, LL. D. 173, 174
(Boston, Wells & Lilly 1829), available online.
69
See Peter D.G. Thomas, John Wilkes and the Freedom of the
Press (1771), 33 Bull. Inst. Hist. Res. 86, 88–91 (1960).
70
See Roger P. Mellen, John Wilkes and the Constitutional Right
to a Free Press in the United States, 41 Journalism Hist. 2, 8 (2015).
71
See David S. Bogen, The Origins of Freedom of Speech and Press,
42 Md. L. Rev. 429, 434–35 (1983).
72
1 Annals of Cong. 443 (Joseph Gales ed., 1834) (statement of Rep.
Jackson on June 8, 1789), available online.
19
of the privileges” by reporting a debate, among his supporters was “Camillus Junius,” a pseudonym that surely
recalls the 1771 English episode.73
There is little daylight between parliamentary privilege and copyright when it comes to a legislature suppressing publication of nonbinding yet official pronouncements. In both cases the state levies powerful, even
criminal74 remedies against its citizens for publicizing information crucial for public dialogue. History has denounced state-asserted privilege as contrary to freedoms
of speech and press; state-asserted copyright ought to
fare no better.
G. Virginia, 1846–1887: The Commonwealth
Annotates Official Codes Despite
Flagrant Copying
Although the states of America have been making legal codes since before they were states,75 interest in codification accelerated in the mid-1800s, a result of successes
of the Napoleonic Code Civil and lobbying by Jeremy
Bentham.76 Some of the resulting codes were annotated,
such as Alabama’s 1852 code, for which the General Assembly directed “a suitable person to make head notes
to the titles, chapters, and articles.”77 Virginia was one
73
See Alfred F. Young, The Democratic Republicans of
New York: The Origins, 1763–1797, at 482–87 (1967).
74
See 17 U.S.C. § 506(a).
75
See, e.g., Laws & Liberties of Mass. (Max Farrand ed., Harvard Univ. Press 1929) (1648).
76
See Charles Warren, A History of the American Bar 512–
13 (1911), available online.
77
Act to Provide for the Adoption, Printing and Distribution of the
Code of Alabama, ch. 9, § 1, 1851 Ala. Acts 22 (Feb. 5, 1852), avail-
20
of the first to enact a civil code during this period,78 and
its experience particularly reflects both recognition of the
public value of official annotations and a lack of concern
for copyright exclusivity in them.
In 1846, the General Assembly of Virginia appointed
a commission “to revise and digest the civil code of this
commonwealth,” and in so doing to include “such notes
and explanations as they shall deem essential to a clear
understanding of the same.”79 The revisors, John M. Patton and Conway Robinson, produced five reports over the
next few years in response.80
The revisors’ reports are notable because they contain not just a code of law but also extensive annotations
summarizing and analyzing case law. To head off criticisms that their revisions would undermine existing case
law, Patton and Robinson presented their proposed code
“accompanied by notes referring to decisions, and giving
such explanations as we deemed essential to a clear understanding of our views.”81 In the section on amending pleadings at trial, for example, the report contains
able online; Ala. Code 797 (John J. Ormond et al. eds., 1852), available online (noting appointment of Henry C. Semple to this position).
78
See Kent C. Olson, State Codes, in Virginia Law Books: Essays and Bibliographies 1, 5–6 (W. Hamilton Bryson ed., 2000).
Virginia already had a long tradition of compilations and revisions of
its laws. See generally Frederick W. Dingledy, From Stele to Silicon:
Publication of Statutes, Public Access to the Law, and the Uniform
Electronic Legal Material Act, 111 L. Libr. J. 165, ¶¶ 47–59, at 183–
88 (2019).
79
Act to Provide for the Revisal of the Civil Code of This Commonwealth, ch. 34, § 1, 1845 Va. Acts 26 (Feb. 20, 1846), available online.
80
John M. Patton & Conway Robinson, Report of the Revisors of the Code of Virginia (Richmond, Samuel Shepherd 1847–
1849), available online.
81
1 id. at ix.
21
an extensive annotation laying out the cases and concluding that the judicial decisions “go to show the propriety
of that statute; we approve the mode in which, under it,
justice was administered.”82 The revisors’ reports are
thus much like Georgia’s annotated code, containing both
statutes that were ultimately enacted into law and nonbinding explanatory annotations.83
Nevertheless, the revisors’ annotations were openly
copied. In 1856, attorney James M. Matthews published
his Digest of the Laws of Virginia, which not only copied
the text of the statutes but also explicitly reproduced
“the very valuable notes of the Revisors of the Code, contained in their Reports to the Legislature.”84 Among
other things, the digest reproduces wholesale the annotation on pleading amendments.85
In its amicus brief in this case, Virginia contends (at
2) that without copyright protection, it might “cease production of an official annotated code.” Yet the commonwealth’s actions belie its claim. No copyright suit against
Matthews or his publisher appears to exist, despite the
legislature’s knowledge of its copyright registration and
of the value of its work.86 Indeed, the secretary of the
commonwealth, Colonel George W. Munford, appeared to
82
4 id. ch. 177, § 7, at 873–74 n.*.
The enacted code did not contain the explanatory annotations,
so they could not be binding law. See, e.g., Va. Code ch. 177, § 7,
at 672 (1849), available online (lacking annotation from the revisors’
report noted above). Curiously, other annotations were added to the
enacted and published code; their provenance is unclear. See, e.g.,
ch. 177, § 4 note, at 671.
84
1 James M. Matthews, Digest of the Laws of Virginia of a
Civil Nature iv (Richmond, J.W. Randolph 1856), available online.
85
1 id. ch. 19, § 7, n.5, at 235–36.
86
See Act to Provide for the Publication of the Code of Virginia,
ch. 2, §§ 3, 7, 1849 Va. Acts 255 (Aug. 16, 1849), available online.
83
22
approve of Matthews’s digest in the preface to Virginia’s
1860 code.87
To be sure, the lack of litigation may reflect the more
limited nature of copyright law at the time,88 but the
important point is that the copyright incentive was unnecessary. Even without it, Virginia continued undeterred to publish not only official codes but also annotations. The act authorizing publication of the 1860 code
directed the secretary to include “such notes in each
case of repeal, alteration, or amendment.”89 Munford
did so extensively, providing both well-researched citations to case law and analysis of legislative history, for
example opining on the supersessional effect of Virginia’s
1847 telegraph statutes.90 Virginia’s 1887 code also contained notes and references to cases, for example on protecting householders from certain debt collections.91 In
their preface to the 1887 code, the revisors note it was
“much desired” to have fuller references within the code;
tellingly, the obstacle to their doing so was not a lack of
copyright or compensation, but excess page length.92
That Virginia produced annotated official codes for
decades despite knowing its annotations were being
copied shows that copyright was not a necessary incentive for state production of annotated codes. The revi87
George W. Munford, Preface to Va. Code iii, iii (2d ed. 1860),
available online.
88
The published revisors’ reports appear to lack formalities. Furthermore, there was “painful uncertainty” on whether abridgments,
such as Matthews’ digest, were infringing. Story’s Ex’rs v. Holcombe, 23 Fed. Cas. 171, 172 (C.C.D. Ohio 1847).
89
Munford, supra note 87, at iii, v.
90
See Va. Code ch. 65, n., at 378.
91
Va. Code ch. 178, n. (1887).
92
See E.C. Burks et al., Preface to Va. Code iii, v.
23
sors and preparers of those annotations would no doubt
agree. In the prefaces to the 1849, 1860, and 1887 Virginia codes, they all acknowledge “a deep sense of [the]
importance” of the legislature’s charge not merely to compile the laws but to provide a “clear understanding of the
same.”93 They understood that the task of the state explaining the law devolves not from private pecuniary interests but from basic duties of a sovereign to its citizens.
II.
History Counsels a Conservative
Approach to State Assertion of
Copyright in Legal Materials
History carries multiple insights relevant to disposition of the question presented, namely whether copyright
law allows a government to muzzle access to official stateauthored materials such as annotations to a legal code.
Four such conclusions are discussed below.
A.
Edicts of Government, and Law Generally, Are Not Limited to Acts of Binding
Legal Force
First, the law consists not merely of sovereign acts
carrying binding force. Pronouncements of government
instead fall on a spectrum of binding power. Georgia’s
repeated insistence (e.g., at 3) that edicts of government
for this case are limited to those that “establish any en93
4 Patton & Robinson, supra note 80, at iii–iv; see also Munford,
supra note 87, at iv (compiler acknowledging that “he has felt the
responsibility deeply, and no thought or labor has been spared in
the earnest endeavor to accomplish the task”); Burks et al., supra
note 92, at v (“[O]ur utmost endeavor has been to discharge our whole
duty faithfully and conscientiously.”).
24
forceable rights or obligations,” then, is inconsistent with
millennia of history.
From the beginning, nonbinding commentaries and
annotations have carried legal weight. The Romans respected the nonbinding advice of the Senate and gave
special weight to commentators having the imprimatur
of jus respondendi.94 The Qing dynasty code visually distinguished official and private commentaries, literally interweaving the former with the statutory text.95 And
the 16th-century anti-publicists who acquiesced in printing statutes but feared giving the uneducated masses the
“apices or fictiones juris”—points and fictions of legal reasoning that explained the rules—illustrate the potency of
those nonbinding sources of law.96
The consistent blurring of what constitutes the law is
unsurprising, because the purpose of promulgated law is
broader than merely putting citizens on notice of punishable acts. As the Chinese legalists97 and English publicists98 understood, law promotes civic virtue and informs
people of the will of the sovereign. Promulgated law enables citizens, apprised of the sovereign’s reasoning, to
participate in government and to sway that reasoning
based on public opinion, as Parliament learned from publishing its debates.99 Promulgated law checks arbitrary
government power, much to the chagrin of the Confu94
See supra notes 5–10 and accompanying text. To avoid repetition, the “see” signal and phrase “and accompanying text” are omitted hereafter.
95
Supra notes 22–25.
96
Supra notes 38–42.
97
Supra notes 14–15.
98
Supra notes 33–36.
99
Supra notes 54–57.
25
cians100 and Colonel Oslow.101 And promulgated law sets
a historical marker of a society’s culture, without which a
study such as the present brief could not exist.
Nonbinding but official pronouncements of government serve these purposes equally, if not a fortiori. It
was announcement of English law not in its binding lawFrench form but in the unofficial vulgar tongue that enhanced the Crown’s reputation and advised the people on
how to live in “tranquility and peace.”102 It was the printing of parliamentary debates that spurred public participation in the legislative process.103
In particular, nonbinding pronouncements uniquely
serve one essential function of law: statutory interpretation and construction. Both China and Rome recognized
that the statutes alone could not clearly expound the
law, so their official commentaries contained “a great deal
of necessary information” for understanding statutes.104
And official explanations of law are, in Justice Scalia’s
words, “ordinarily the most persuasive” extrinsic information for judicial construction, a theory put into practice
by the Georgia courts that have repeatedly relied on the
state’s official annotations.105
That the full body of law encompasses both binding
and nonbinding texts counsels against discarding any of
100
Supra notes 16–18.
Supra notes 60–64.
102
Supra notes 30–31.
103
Supra notes 54–57.
104
1 Johnson, supra note 20, at 43; see Dingledy, supra note 11, at
235.
105
Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring); see Code Revision Comm’n ex rel. Gen. Assembly of Ga. v.
Pub.Res.Org, Inc., 906 F.3d 1229, 1250–51 (11th Cir. 2018) (Pet. App.
43a–44a).
101
26
them from rights of public access as Georgia would have
this Court do. History and contemporary practices show
that a nonbinding official pronouncement can play an important role in delineating the rights of citizens, making
it no less a part of “the law,” and no less an edict of government, than a statute.
B.
Control over the Reasons and Explanations of Law Confers Undue Power on
Government and the Legal Profession
History also reveals the danger of allowing states
such as Georgia the power to restrain access to nonbinding legal pronouncements, whether under copyright law
or otherwise. That power can exacerbate both government centralization and undue influence of the bar.
Georgia’s arguments find uneasy company with the
ancient Confucians106 and the English anti-publicists,107
who preferred the absolutist sovereign meting out law
and punishment while leaving those without means blind
to the reasons. No doubt this regime promotes obedience,
but to contemporary ears it smacks of autocracy. Similarly, should Georgia exercise its copyright privilege to
deny access to reasoning contained in official annotations,
the state would potentially wield undue power. It could,
for example, selectively conceal its views on whether a
statute should be construed narrowly or broadly, perhaps
leading risk-averse citizens to forgo rights or liberties
they otherwise would enjoy.108
106
Supra notes 14–15.
Supra notes 37–44.
108
Cf. Yates v. United States, 135 S. Ct. 1074, 1090 (2015) (Alito, J.,
concurring) (relying in part on a statute’s nonbinding title to narrow
construction).
107
27
Control over official annotations to law also hands improvident power to the bar. The anti-publicist English
lawyers knew that legal printing stood to cost them their
monopoly over the written reasoning of the law and thus
their political power to shape its direction.109 New York
lawyer James Coolidge Carter similarly led opposition to
state codification efforts in the 1850s, again to maintain
the bar’s control over evolving the law.110 Georgia’s assertion of copyright also places the official annotations
largely in the hands of well-funded lawyers, raising the
same concern that those with the most access to the official, promulgated commentary—and thus the ability to
shape it—are a professional class uncharacteristic of the
general public.
C.
Unlike Case Reports or Treatises,
Annotated Official Codes Are a
Traditional State Dictum
Attempting to avert the strangeness of a state wielding copyright against citizens, Georgia repeatedly analogizes to private legal treatises and headnotes to cases,
supposing that the state, as annotator of the official code,
is acting less like a government and more like a private
scholar. History again disputes this claim, because unlike
treatises and case reports, official annotated codes of law
have long been the province of sovereigns.
State-published annotations are a tradition of centuries. Justinian declared two commentaries, the Digest and Institutes, official components of the Corpus Ju109
Supra note 42.
See Mathias Reimann, The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil Code, 37
Am. J. Comp. L. 95, 110–13 (1989).
110
28
ris Civilis alongside the statutes.111 Annotations have
been part of the Chinese legal tradition since at least the
200 b.c. Han dynasty code.112 England did not develop a
tradition of publishing official commentaries on laws until about the 20th century,113 but annotated codes were
frequent in Virginia and other states.114
By contrast, neither case reports nor private treatises
have traditionally been promulgations of the state. Private treatises on law abounded in Rome, but the emperors distinguished the unofficial from the official through
proclamations and jus respondendi.115 English case reports were also understood to be private works: The
medieval Year Books were unofficial and generally attributed to lawyers or law students,116 and the nominate reports that followed identified the names of private
compilers—Plowden, Dyer, Coke.117 When Lord Coke
opined in Dr. Bonham’s Case118 that the king’s statutes
were not above the law (an early exercise of judicial review), James I kicked him off the Court of Common Pleas
and then in 1616 ordered Coke to “correct his Reports” of
111
Supra notes 11–13.
Supra notes 19–25.
113
See May, supra note 49, at 442; Cabinet Office, Guide to
Making Legislation para. 11.9, at 78 (July 2017) (U.K.), available
online.
114
Supra notes 88–92.
115
Supra notes 8–10.
116
See 2 Holdsworth, supra note 29, at 532–36; Michael Bryan,
Early English Law Reporting, 4 U. Melb. Collections 45, 46
(2009), available online.
117
See W.S. Holdsworth, Sources and Literature of English Law 89–90 (1925).
118
Thomas Bonham v. Coll. of Physicians (Dr. Bonham’s Case), 77
Eng. Rep. 638 (C.P. 1610) (Coke, C.J.).
112
29
the case.119 Coke refused, and because the reports were
his own and not the Crown’s, he could.120
When Georgia deems its official annotated code akin
to treatises and case reports, it grates against history
that has long treated official codes as mouthpieces of the
state. That a private firm under state commission held
the pen is of little consequence: The Justinian Digest121
and Virginia codes122 were also privately authored under commission and subsequently ratified. Nor is there
much weight to Georgia’s supposedly benign motive of
using copyright to subsidize production of annotations—
the state was free to subsidize a private treatise under a
private publisher’s own name; that would make for a different case but also for a far less valuable treatise owing
to the absence of “Official” on the cover.
The inescapable conclusion for Georgia is that by designating an annotated code as official, the state is not
an ordinary market participant. It instead taps into a
long arc of history of sovereigns propounding their will
through pronouncements, binding or not, upon their citizens. Those pronouncements are part and parcel of the
law, and they are edicts of government to which citizens
are entitled access.
119
Theodore F.T. Plucknett, Bonham’s Case and Judicial Review,
40 Harv. L. Rev. 30, 50 (1926).
120
See id. at 50–51.
121
See Dingledy, supra note 11, at 235.
122
See supra notes 79–80.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Appeals should be affirmed.
Respectfully submitted,
Charles Duan
Counsel of Record
R Street Institute
1212 New York Ave NW Ste 900
Washington DC 20005
(202) 525-5717
cduan@rstreet.org
Counsel for amici curiae
October 2019
30
APPENDIX A
Quotation and Citation Conventions
Spelling and capitalization have been modernized in
quotations from historical sources, without notation, to
simplify readability. Chinese transliterations have been
canonicalized to Pinyin, and j is used rather than the consonantal i (e.g., jus rather than ius). No changes have
been made to titles of works to facilitate locating them
in catalogs, though historical abbreviations of names are
expanded.
Citations to Roman law and histories follow the classical format [book].[section].[sentence] throughout. Because Locke’s Essay is also organized into books and sections, the same format is followed for it. For each, a specific translation or reprint is referenced; the volume and
page numbers also given with the citations are indexed
to that translation or reprint.
To ensure maximum accessibility of the historical
works in this brief, public domain editions have been cited
wherever possible.
31
Rev. c6d4692f
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.