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

Supreme Court briefApr 4, 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 Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

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

ALABAMA, IDAHO, KANSAS, MISSISSIPPI, SOUTH

CAROLINA, SOUTH DAKOTA, AND TENNESSEE

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------LESLIE RUTLEDGE

Attorney General

NICHOLAS J. BRONNI

Solicitor General

Counsel of Record

DYLAN JACOBS

Assistant Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street

Little Rock, Arkansas 72201

(501) 682-6302

nicholas.bronni@arkansasag.gov

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 ........................................................

This case presents an issue of profound

importance to States with copyrighted official annotated codes ................................

A. The decision below would likely invalidate every copyright in an official annotated state code ................................

B. Whether States can copyright the annotations in their official codes is an

issue of profound importance .............. 10

II.

The decision below is wrong ...................... 14

CONCLUSION..................................................... 20

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) ........................................................................14

Banks v. Manchester, 128 U.S. 244 (1888) ... 14, 15, 18, 19

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

628 F.2d 730 (1st Cir. 1980) ....................................15

Callaghan v. Myers, 128 U.S. 617 (1888) .... 14, 17, 18, 19

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

1970) ........................................................................12

Hall v. City of Bryant, 379 S.W.3d 727 (Ark. Ct.

App. 2010) ................................................................16

Hixson v. Burson, 43 N.E. 1000 (Ohio 1896) ..............18

Jacobs v. State, 243 S.W. 952 (Ark. 1922)...................16

Pioneer Tr. Co. v. Stich, 73 N.E. 520 (Ohio 1905) .......18

United States v. Detroit Timber & Lumber Co.,

200 U.S. 321 (1906) .................................................18

United States v. Stitt, 139 S. Ct. 399 (2018) ...............18

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

F.3d 791 (5th Cir. 2002) (en banc)...........................15

Wheaton v. Peters, 33 U.S. 591 (1834) .........................17

STATUTES

17 U.S.C. 102(a)................................................. 3, 15, 19

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

TABLE OF AUTHORITIES—Continued

Page

2017 Ga. Laws 275........................................................9

Ala. Code 1-1-14 ..........................................................10

Ala. Code 29-5A-1(a) .....................................................6

Ala. Code 29-5A-22 .......................................................6

Ala. Code 29-6-1(a) .......................................................6

Alaska Stat. 01.05.006................................................10

Alaska Stat. 24.20.020..................................................6

Alaska Stat. 24.20.070(b) .............................................6

Ark. Code Ann. 1-2-102...............................................10

Ark. Code Ann. 1-2-115(c)...........................................16

Ark. Code Ann. 1-2-301(b) ............................................6

Ark. Code Ann. 1-2-303(a)(1) ........................................6

Ark. Code Ann. 2-16-204.............................................16

Ark. Code Ann. 14-268-105.........................................16

Colo. Rev. Stat. 2-5-101(3)...........................................10

Colo. Rev. Stat. 2-5-101-102 ..........................................6

Colo. Rev. Stat. 2-5-102(1)(b) ......................................10

Del. Code Ann. tit. 1, 101(a) .......................................10

Del. Code Ann. tit. 1, 210(a) .......................................10

Del. Code Ann. tit. 1, 210(b) .........................................6

Del. Code Ann. tit. 29, 1101 ..........................................6

Ga. Code Ann. 1-1-1 ......................................................9

Ga. Code Ann. 1-1-7 ....................................................16

TABLE OF AUTHORITIES—Continued

Page

Kan. Stat. Ann. 46-1201(a) ...........................................6

Kan. Stat. Ann. 46-1211(a) ...........................................6

Kan. Stat. Ann. 77-133 .................................................6

Kan. Stat. Ann. 77-133(h) ...........................................10

Kan. Stat. Ann. 77-137 ...............................................10

Minn. Stat. 3.303 ..........................................................6

Minn. Stat. 3C.01 ..........................................................6

Minn. Stat. 3C.08 ..........................................................6

Miss. Code Ann. 1-1-7 .................................................10

Miss. Code Ann. 1-1-8(1) .............................................10

Miss. Code Ann. 1-1-103 ...............................................7

Miss. Code Ann. 1-1-107 ...............................................6

Neb. Rev. Stat. 49.702 ...................................................7

Neb. Rev. Stat. 49-765 .................................................10

Neb. Rev. Stat. 49-767 .................................................10

Neb. Rev. Stat. 50-401.01(1)-(2) ....................................7

N.H. Rev. Stat. Ann. 17-A:1 ..........................................7

N.H. Rev. Stat. Ann. 17-A:2 ..........................................7

N.M. Stat. Ann. 12-1-2 ..................................................7

N.M. Stat. Ann. 12-1-3 ............................................ 7, 10

N.M. Stat. Ann. 12-1-7 ................................................10

N.C. Gen. Stat. 164-10 ..................................................7

TABLE OF AUTHORITIES—Continued

Page

P.R. Laws Ann. tit. 2, 223 .............................................7

P.R. Laws Ann. tit. 2, 226 ...........................................10

R.I. Gen. Laws 22-11-3.2 ..............................................7

R.I. Gen. Laws 43-4-18 .................................................7

S.C. Code Ann. 2-7-45 .................................................10

S.C. Code Ann. 2-11-10 .................................................7

S.C. Code Ann. 2-13-10 .................................................7

S.C. Code Ann. 2-13-60 .................................................7

S.C. Code Ann. 2-13-60(3) ...........................................10

S.D. Codified Laws 2-16-3.............................................7

S.D. Codified Laws 2-16-6.............................................7

Tenn. Code Ann. 1-1-101 ..............................................7

Tenn. Code Ann. 1-1-105 ..............................................7

Tenn. Code Ann. 1-1-105(a) ........................................10

Tenn. Code Ann. 1-1-111(b) ........................................10

Vt. Stat. Ann. tit. 1, 51 ................................................10

Vt. Stat. Ann. tit. 2, 402 ................................................7

Vt. Stat. Ann. tit. 2, 421 ................................................7

Vt. Stat. Ann. tit. 2, 422 ................................................7

Vt. Stat. Ann. tit. 2, 422(b)..........................................10

Vt. Stat. Ann. tit. 2, 423 ................................................7

Va. Code Ann. 30-145 ....................................................7

Va. Code Ann. 30-146 ....................................................7

vii

TABLE OF AUTHORITIES—Continued

Page

V.I. Code Ann. tit. 2, 209 ...............................................7

V.I. Code Ann. tit. 2, 210 ...............................................7

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), available at https://

tinyurl.com/y6xhrcg3 ........................................ 11, 12

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) .......................................................................13

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

Carnegie, 35 Whittier L. Rev. 419 (2014)................12

Thomson Reuters, West’s Florida Statutes Annotated, available at https://tinyurl.com/y2os7ryo ........14

INTEREST OF AMICI CURIAE1

Amici are the States of Arkansas, Alabama, Idaho,

Kansas, Mississippi, South Carolina, South Dakota,

and Tennessee. Amici have copyrighted annotations in

their official codes.

The decision below threatens those copyrights. In

it, the Eleventh Circuit held that the annotations in

Georgia’s official code are not copyrightable. To justify

that holding, the court 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 by a State’s assignee)

in the annotations to an official state code.

By invalidating those copyrights, the reasoning of

the decision below, if adopted by other circuits, 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 pocketing 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. Were

Counsel of record for all parties have received notice of

amici’s intent to file this brief.

that to occur, States would either incur substantial

costs in continuing to produce annotated codes, or

cease producing their official annotated codes altogether—depriving their citizens of a valuable research tool to understand the law.

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

SUMMARY OF ARGUMENT

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

of judicial decisions and state attorney general opinions in its official annotated code. That decision might

initially appear factbound, but in reality it at least

threatens, and would likely invalidate, copyrights held

in the official annotated codes of twenty-one other

States, two territories, and the District of Columbia.

Whether those copyrights are valid is an important question worthy of this Court’s review. 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 in 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 advent of electronic

legal research, lawyers and nonlawyers alike continue

to look to the annotations in annotated codes as a

starting point in researching how state law has been

interpreted. Thus, the decision below ultimately threatens to deprive many States’ citizens of a valuable tool

for determining what the law is.

In addition to the importance of the issues reached

in the decision below, its resolution of these issues is

wrong. It is no doubt true that there can be no copyright in the law itself because copyright only subsists

in “original works of authorship.” 17 U.S.C. 102(a). The

ultimate authors of the law are the public at large, rather than the legislature or judiciary. But the same is

not true of nonbinding annotations, which had never

been held uncopyrightable by any court until the decision below. The annotation of a case is not an exercise

of popular sovereignty, but a comment on it, and the

original work of authorship of the company or body

that wrote it.

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

ARGUMENT

This case presents an issue of profound importance to States with copyrighted official annotated codes.

The decision below held that annotations in a

State’s official annotated code are not copyrightable at

least where they are part of an official code, App. 38a42a; and their preparation is supervised by officials

who exercise sovereign power, App. 37a-38a, and was

authorized by legislation that went through bicameralism and presentment, App. 47a-51a. The facts on

which this holding rests are hardly Georgia-specific.

Rather, the characteristics of the annotations in Georgia’s code that led the Eleventh Circuit to deem them

uncopyrightable are largely present in the case of

every copyrighted annotated state code.

The annotations in the official annotated codes of

twenty-two States (including Georgia), two territories,

and the District of Columbia are copyrighted.2 The decision below threatens and would likely invalidate the

copyrights in all of them. If that were to occur, either

States’ cost of making official annotated codes would

substantially increase, or those codes would disappear

altogether.

See Registration Nos. TX0008663448 (Sept. 17, 2018) (Alabama), TX0008570445 (Mar. 22, 2018) (Alaska), TX0008590841

(June 11, 2018) (Arkansas), TX0008381033 (Feb. 16, 2017) (Colorado), TX0008551825 (Jan. 16, 2018) (Delaware), TX0008566647

(Apr. 23, 2018) (District of Columbia), TX0008588533 (Mar. 13, 2018)

(Idaho), TX0008566022 (Feb. 1, 2018) (Kansas), TX0008269291

(Oct. 5, 2015) (Minnesota), TX0008588394 (Apr. 3, 2018) (Mississippi), TX0008489689 (Aug. 1, 2016) (Nebraska), TX0008532691

(Aug. 28, 2017) (New Hampshire), TX0008600436 (Dec. 4, 2017)

(New Mexico), TX0008533641 (Dec. 19, 2017) (North Carolina),

TX0008589858 (Mar. 20, 2018) (North Dakota), TX0008545032

(Dec. 8, 2017) (Puerto Rico), TX0008555142 (Jan. 16, 2018)

(Rhode Island), TX0008549132 (Oct. 18, 2017) (South Carolina),

TX0008625275 (Aug. 7, 2018) (South Dakota), TX0008588806

(Mar. 19, 2018) (Tennessee), TX0008530993 (Nov. 23, 2017) (Vermont), TX0008613009 (May 10, 2018) (Virginia), TX0008475282

(May 24, 2017) (Virgin Islands), TX0008604570 (Feb. 12, 2018)

(Wyoming).

A. The decision below 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. Although the court 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. 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,”

App. 46a, particularly as evidenced by their placement

in the official state code, App. 39a-42a. And third, it

pointed to the fact that Georgia adopted its official

annotated code through “bicameralism and presentment.” 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.” 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. 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 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.3

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. 1-2-303(a)(1) (code revision commission supervises

revision of code); Ark. Code Ann. 1-2-301(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. 2-5-101-102 (revisor of statutes, under supervision and direction of legislative committee, supervises preparation of code);

Del. Code Ann. tit. 1, 210(b) (revisors of statutes, in consultation

with legislative council, supervise preparation of code); Del. Code

Ann. tit. 29, 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);

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); Miss. Code Ann. 1-1-107

(legislative committee supervises preparation of code); Miss. Code

Ann. 1-1-103 (committee is comprised of state legislators); 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); 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); 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); N.C. Gen. Stat. 164-10

(legislative services office supervises preparation of code); P.R.

Laws Ann. tit. 2, 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); Vt. Stat. Ann. tit. 2, 421-23 (legislative council

supervises preparation of code); Vt. Stat. Ann. tit. 2, 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, 210 (code revisor supervises preparation of code); V.I. Code Ann. tit. 2, 209 (code revisor is appointed

by president of the legislature).

The second factor on which the Eleventh Circuit

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

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.

App. 43a-44a. But, as Georgia has explained, it claims

no copyright in those comments. Pet. 27 n.7. The annotations in which Georgia asserts copyright are annotations of judicial and state attorney general opinions,

and the Eleventh Circuit cited no case (as none exists)

where a Georgia court so much as cited the Georgia

code’s annotations of Georgia courts’ opinions, or those

of the state attorney general. That is unsurprising. To

rely on those annotations as authoritative commentary on what a court held or the state attorney general

opined would be absurd.

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. App. 39a-42a. The

court acknowledged that Georgia’s code “disclaims any

legal effect in the annotations.” 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.” 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.

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.” 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. App. 47a-48a. But

as that court acknowledged, Georgia only annually

“reenact[s] the statutory portion of the Code.” 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 statutes by the provisions [of those reenactments].’ ” 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. 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).4

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

are not copyrightable—that they are part of the State’s

official code, and that the State decided to include annotations in its official code through a law enacted by

its legislature and presented to its governor—are true,

by definition, of every official annotated state code. The

other factor—that legislative- or judicial-branch officials supervise the preparation of those annotations—

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 other circuits, would at the very least

threaten—and likely invalidate—every copyright in an

official annotated state code.

B. Whether States can copyright the annotations in their official codes is an issue

of profound importance.

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

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 Ann. tit. 1, 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, 226; S.C.

Code Ann. 2-7-45, 2-13-60(3); Tenn. Code Ann. 1-1-105(a), 1-1111(b); Vt. Stat. Ann. tit. 1, 51, tit. 2, 422(b).

of official annotated codes. All but one of the amici

States contracts with a third party to prepare its code’s

annotations.5 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 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

simply because they appear in an official code, the legal

community still uses them heavily, even in an 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

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.

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 seventy percent 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).

Thirty-six percent believed that lawyers should usually use print-based codes for statutory research. Id. at

443. And 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).

If States stopped producing official annotated

codes, annotated codes would still exist. Today, States

with official unannotated codes typically have one or

more unofficial annotated codes. The logic of the decision below would not invalidate copyrights in unofficial

annotated codes. The annotations in them are in no

way “attributable to the constructive authorship of the

People.” App. 4a.

Unofficial annotated codes, however, are an unsatisfactory replacement for official annotated codes. One

of the drafters of the legislation that created Georgia’s

official code recently observed, in explaining why Georgia opted for an official annotated code, 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,

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.

App. 41a.

Moreover, as Georgia explained in its petition,

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

codes are typically far more expensive. Pet. 10, 34. 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. 10. 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.

II.

The decision below is wrong.

In holding that Georgia could not copyright the

annotations in its official code, the Eleventh Circuit

relied on the government-edicts doctrine, a rule of

interpreting a copyright statute that has since been

fundamentally revised. See Banks v. Manchester, 128

U.S. 244 (1888); Callaghan v. Myers, 128 U.S. 617

(1888). Although no one questions that the doctrine

survives in some form, its footing and contours are today unclear. As one judge recently observed, “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

[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 rationales, the decision below adds yet a

fifth: that government edicts do not qualify as original

works of authorship under Section 102(a) of the

people at large under a theory of popular sovereignty.

App. 11a-12a (citing 17 U.S.C. 102(a)); see App. 21a-23a

(attributing this rationale to Veeck v. So. Bldg. Code

Congress Int’l, Inc., 293 F.3d 791 (5th Cir. 2002) (en

banc), and Bldg. Officials & Code Adm’rs v. Code Tech.,

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

It is true that a State’s citizens, not its legislators

or judges, are the ultimate authors of state statutes or

judicial opinions for copyright purposes. See Banks,

128 U.S. at 253 (reasoning that judicial decisions

could not be copyrighted because judges could “[i]n no

proper sense . . . be regarded as their author or their

proprietor, in the sense” those terms were used in the

citizens are in no way the “ultimate authors of the

annotations”—comprising summaries of judicial and

attorney general opinions—in Georgia’s official annotated code. App. 4a. The same is true elsewhere. No

State’s official annotated code is “constructively authored by the People” of that State. App. 26a.

To be clear, the sorts of annotations that the

Eleventh Circuit’s rule would “attribut[e] to the constructive authorship of the People,” App. 53a, are statements of the following kind: “Trial court erred in

granting a city summary judgment in homeowners’ action alleging that the city violated state and federal

regulations governing floodplain management in constructing a park near their homes because there was

an issue of material fact regarding whether the city

fully complied with standard engineering practice . . .

and without such a finding it could not be determined

whether the park project was a nuisance pursuant to

this section. . . .” Ark. Code Ann. 14-268-105 (citing

Hall v. City of Bryant, 379 S.W.3d 727 (Ark. Ct. App.

2010)). Or to take another example: “In a prosecution

for selling and offering for sale nursery stock infected

with a disease . . . the state was not required to show

that the sale was made with knowledge that the trees

were so affected.” Ark. Code Ann. 2-16-204 (citing Jacobs v. State, 243 S.W. 952 (Ark. 1922)).

Those statements are not the law, or even descriptions of it; they are merely one annotator’s description

of how a court decided a particular case. See Ark. Code

Ann. 1-2-115(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.

1-1-7 (describing the effect of Georgia’s annotations in

identical terms). Another annotator could describe

that decision quite differently, and indeed other annotators do. See Jacobs, 243 S.W. at 952 (reporter annotating Jacobs as holding that in a prosecution for sale

of diseased nursery stock, “the state was not required

to show a criminal intent”). And while the official annotation offers a “convenient reference,” Ark. Code

Ann. 1-2-115(c), no citizen would reasonably believe

that it has any authority that the unofficial annotation

lacks. The only authoritative statement on the matter

is contained in the decision itself. Official annotations

are useful glosses on authoritative interpretations of

the law—not authoritative interpretations of the law

themselves.

Given this lack of authority, the people cannot be

sensibly described as the authors of official annotations. The Eleventh Circuit explained that the people

should be deemed the authors of the law for copyright

purposes because in this country, the people—and not

the government—are sovereign. App. 19a-20a. That is

true. But the people are not law annotators. It would

be perfectly sensible, and even 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 Arkansas, through our legislature, have chosen to include annotations in our State’s

official statutory code.” But it would be absurd for a

citizen to say, “We the People of Arkansas, through a

contractor hired by our Code Revision Commission,

have annotated a decision of our State Supreme Court

as holding that in a prosecution for the sale of diseased

trees, the state was not required to prove knowledge of

the disease.”

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

ever held that the people are the authors of official annotations for copyright purposes until the decision below. To the contrary, this Court has held twice that

annotations by a government-employed official court

reporter are authored by the reporter for copyright purposes, even though it simultaneously held that the

opinions that reporter annotated are not authored,

within the meaning of copyright law, by the judges who

write them. See Pet. 28-29 (discussing Wheaton v. Peters, 33 U.S. 591 (1834)); Pet. 31 (discussing Callaghan

v. Myers, 128 U.S. 617 (1888)). That is because—as

every opinion of this Court reiterates—annotations of

opinions are not the law even when a government employee prepares them, while 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

demonstrated by the contrast between Banks and Callaghan. 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 “subject to revision by the judges concurring in the opinion” just as

much as the opinion itself, id. at 250, and were themselves deemed binding interpretations of the law. 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 later, the Court held just the opposite—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 also that the “public officer” who created

Illinois’s syllabi and headnotes was an author for copyright purposes, Callaghan, 128 U.S. at 645.

There is only one possible explanation for the discrepancy between Banks and Callaghan. Ohio’s syllabi

were law and therefore ultimately the work of the people, while Illinois’s syllabi were true annotations and

therefore attributable only to the reporter who wrote

them. The same is true of annotations under today’s

of their creators. 17 U.S.C. 102(a). The decision below

to the contrary cannot stand. This Court should grant

certiorari and ultimately reverse.

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

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney

General

LESLIE RUTLEDGE

Attorney General

LAWRENCE G. WASDEN

Idaho Attorney General

NICHOLAS J. BRONNI

Solicitor General

Counsel of Record

DEREK SCHMIDT

Kansas Attorney General

DYLAN JACOBS

Assistant Solicitor General

JIM HOOD

Mississippi Attorney

General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL

323 Center Street

Little Rock, Arkansas 72201

(501) 682-6302

nicholas.bronni@

arkansasag.gov

ALAN WILSON

South Carolina

Attorney General

JASON R. RAVNSBORG

South Dakota

Attorney General

HERBERT H. SLATERY III

Tennessee Attorney

General and Reporter

April 4, 2019

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.