Almost exactly two hundred and thirty years after the enactment of the Copyright Act of 1790, the U.S. Supreme Court ruled that copyright protections do not apply to Georgia’s official annotated code. In so doing, the Court expanded the rule it adopted in its first copyright case, Wheaton v. Peters, which prevents judges from copyrighting their written opinions and transferring them to the court’s reporter of decisions, to its most recent copyright case. In Georgia v. Public.Resource.Org, Inc., the Court’s majority ruled that the nineteenth-century era government edicts doctrine also excludes works created by legislators, acting in the course of their legislative duties, from copyright protection.
This Paper begins with an overview of the facts and history of Public.Resource.Org, including a review of the various stakeholders and their interests in the case. An analysis of the Supreme Court’s ruling follows. The analysis evaluates the rule adopted by the majority and compares it to the approach taken by the Eleventh Circuit. In particular, this Paper questions the Court’s emphasis on the construct of “author” under the Copyright Act in determining whether a work is a law. Although both courts found for Public.Resource.Org, this Paper argues that the victor would have been better off with the framework the Eleventh Circuit used to conclude that the Official Code of Georgia Annotated (“OCGA”) was uncopyrightable under the government edicts doctrine.
Finally, this Paper explores what “law” is and the implications of the Court’s approach to this question (at least in the context of copyright) on separate but related litigation to which Public.Resource.Org is a party. In short, the decision is a win for the general principle that no one owns the law, but it does not go so far as to free up the “raw materials” of democracy as Public.Resource.Org and its supporters might have hoped. This has implications for closely connected legal and policy disputes over the copyrightability of privately authored standards later incorporated by reference into federal, state, and local law.