27 April 2020

Six Statutes in Search of an Author

This morning, the Supreme Court issued an opinion on copyrightability that came out right, but is nowhere near explicit and extreme enough. In Georgia v. Public Resource.org, Inc., No. [20]18–1150 (U.S. 27 Apr 2020, Roberts, C.J.) (PDF), the Court held that the Official Court of Georgia (Annotated) is not copyrightable work, and no fee may be charged for or other restriction placed upon reproducing it.

Over a century ago, we recognized a limitation on copyright protection for certain government work product, rooted in the Copyright Act’s “authorship” requirement. Under what has been dubbed the government edicts doctrine, officials empowered to speak with the force of law cannot be the authors of—and therefore cannot copyright—the works they create in the course of their official duties.

We have previously applied that doctrine to hold that non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law. We now recognize that the same logic applies to non-binding, explanatory legal materials created by a legislative body vested with the authority to make law. Because Georgia’s annotations are authored by an arm of the legislature in the course of its legislative duties, the government edicts doctrine puts them outside the reach of copyright protection.

(slip op. at 1–2, citation omitted, italics in original) This case has some surreal implications.

The obvious implication is that rent-seeking behavior by the legal-publishing segment is disfavored, at least as to official materials. This is a two-century-long tradition in the US (see, e.g., Wheaton v. Peters, 33 U.S. 591 (1834); cf. also, e.g., Matthew Bender & Co. v. West Publ. Co., 240 F.3d 116 (2d Cir. 2001) (n.b. one of the same publishers as in today's case, but on the "other" side!)). It is also inconsistent with the stated purpose of copyright law:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

(U.S. Const. Art. I § 8 cl.8) and, more to the point, inconsistent with the concept of the "rule of law." Not everyone is required to be a lawyer, but everyone is required to comport their conduct to the law's requirements. It is not acceptable to place the authoritative and binding statement of the law behind a paywall.

Also pretty clear, the Court is continuing to struggle with the concept of "who is, or can be, an Author"? Congress has not helped with its inane, inept, and frankly arrogant declaration that the patron of certain works is the Author of those works (see 17 U.S.C. § 201(b) (the work-for-hire doctrine); see also Public Resource.org, supra, slip op. at 9–10). This actually creates substantially more difficulty than it needs to, thanks to the interplay with another rent-seeking aspect of U.S. copyright law: The mandatory deposit of copies as a condition of registration, and the mandatory registration of copyright to get into court. That's what happens when those most affected by a statute — the actual, natural-person authors who create works and are the subject of the IP Clause — don't have a primary seat at the table during legislative drafting, ahead of mere distributors and transferees. Or, as in the case of the 1909 and 1976 Acts and the 1998 amendments to the 1976 Act, a seat at the table at all. So the efforts at privatization and commercialization, instead of tax-supported publication, are meaningless. Schade.

The surreal starts to raise its Daliesque head in more metaphysical questions regarding "what constitutes a Statement of the Legislature." Here, we're starting to get into questions verging on the metaphysical: Which subset speaks for an entire collective, and how? Is delegation possible? Is an ex post statement of "meaning" definitive as a matter of law, especially when that ex post statement concerns either the formalities of "legislative intent" or the darker, more dubious realm of "pretext and abuse of power"? Some of these questions must await another time, or another context; but even through questionable translations from Italian (which have recently fallen into the public domain through expiration of term), they're lurking in the play alluded to in the title of this piece.

And it gets even more distorted. Lurking inside of all of this is another contextual assumption regarding the natural-person individual authors of individual elements of the Official Code of Georgia (Annotated). Assume for the moment — as is the default at present — that some of the natural persons who created the annotations were independent contractors and not employees, or maybe even outright freelance "authors." The Court evades this issue, and it's not in the record; but one must ask whether those contractors' efforts could be work for hire. The Court itself denies that "annotation" standing alone is an eligible category, noting that it really means "annotation of a copyrightable work." Now throw in some Feistiness, as to whether there were only a limited number of (impliedly) nonoriginal ways to express the facts of the legal meaning in each annotation, and things get Interesting…