Indeed, here is the very first paragraph of the dissenting opinion by Ginsburg (joined by Breyer), beginning at p. 39 of the linked submission:
> Beyond doubt, state laws are not copyrightable. Nor are
other materials created by state legislators in the course of performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. (Ante, at 8–9). Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (Ante, at 9) (emphasis added). The core question this case presents, as I see it: Are the annotations in the Official Code of Georgia Annotated (OCGA) done in a legislative capacity? The answer, I am persuaded, should be no.
Also, IANAL, but my understanding is the annotations are de facto required reading for practitioners of law. They give all the background and history of the law, without which, you would be at a severe disadvantage in the courtroom.
I can’t quite agree that the annotations are ‘required reading’ for competent representation of a litigant. Some state’s official printings of statute are pretty bare (Louisiana in particular), but Georgia’s official documents are quite thorough. The area of law, the type of arguments, etc are all facets of what types of references make good arguments. I’m not aging the annotations aren’t a good reference, but that some commenters seem to be placing a lot of emphasis on them, instead of other sources.
1. In a state like LA, where annotations aren't included, would a lawyer purchase an annotated version from a 3rd party? I assume the information contained in the annotations is expected to be known, regardless of how it is obtained.
2. If a state elects to publish annotations as part of the only published code, does that lend any extra weight to the annotations (effectively, by putting them in the same book, and making that book the only copy of the state code, the state has signaled "these notes are the way we intend you to read/interpret/practice the law").
The answer to 1 is yes, although it is more common for the information contained in ‘annotations’ to be accessed via Westlaw or Alexis online subscriptions.
As to 2, I think the primary evidence for extra weight would be the number of citations to the ‘official’ annotations in rendered opinions, but that it would not be an official jurisprudential rule.
Per the decision, the un-annotated code is made freely available.[0] The issue at hand is the annotations.
The majority opinion is that the key point is authorship. Officials whose work has the force of law (aka judges and legislators) cannot be authors for purposes of copyright of any work produced in their official capacity as a lawmaker. Their argument is that the annotations are published by the legislative body of Georgia in an official capacity, and therefore are not subject to copyright.
The first dissent disagrees with the majority's interpretation of the government edicts doctrine (lawmakers cannot be authors of, and therefore cannot hold copyright on, works produced in the discharge of their lawmaking duties), finding it too broad and not obvious. The core point is that the type of work matters, and that in this case the type of work is not legislative.
The second dissent argues also that the type of work matters, and that annotations such as those under consideration do not created in a legislative capacity. This agrees with the majority argument about the government edicts doctrine, but disagrees about whether this work constitutes a government edict.
[0] This is mentioned spanning the bottom of page three and the top of page four of the majority opinion (pages six and seven of the PDF):
> In exchange, Lexis has agreed to limit the price it may charge for the OCGA and to make an unannotated version of the statutory text available to the public online for free.
Any worries about over-expansion of the public domain on legislature-produced works seem very strange to me. Why does anything that lawmakers produce deserve to be copyrighted? They are elected public servants.
The gist of the government edict doctrine at hand in the majority's opinion is exactly this.
It is a precedent-based doctrine that says official works of officials whose work carries the weight of law cannot be copyrighted. This is because the law belongs to the people, from whom its authority derives. Thus, a lawmaker (legislator or judge engaging in lawmaking duties - official works) cannot be the author of their work, because their work (the law) belongs to the people. Copyright protections are granted to authors.
This was precedent established in the 1800s, and has now been upheld in this decision. It seems a quite significant decision in this area.
How would your argument change in the event that this were the only such publication? How about if there were 1,000?
EDIT: I now realize that George effectively only published an annotated version of its laws, which can only be purchased (it seems) from LexisNexis. While a free version is available, this version appears to be prepared by LexisNexis (all of this is my understanding from ref 1)
I recognize this, but (at least, per the reference I linked) the free version isn't an official state of Georgia document. It seems the only official version of the state laws is the commercial version.
I tend to agree with you, but availability of the text of the statutes is not at issue in the case here. In all of the opinions, every justice agrees that the text of the laws should be freely available, and not one of them raised any issue with the fact that the text of the statutes is made available through an agent, rather than directly by the state.
It is difficult to make an argument from a negative, but it is interesting to note that no one seems to care that Lexis distributes the text.
Also, if you go to Georgia's legislative web site and click on the link for "Georgia Code"[0], this takes you directly to Lexis Nexis. This seems as official as anything you'll find. The fact that a government contracts a third party to provide a service does not imply that that government is failing to provide said service.
As an analog, if I am a landlord, I am required to maintain any premises I let in a state that is fit for humans to live in. Whether I hire third party contractors to do the work to maintain these conditions or do the work myself, I am discharging my duties as landlord. No one would ever complain that I hired a plumber rather than fixed a toilet myself (assuming that the work is of the same quality).
[0] left-side nav bar, under "Legislation" heading, second from the bottom of its section.
Edit: I'll note that the arrangement as laid out in the syllabus of the Supreme Court decision reads differently than that in the Ars article. The syllabus clearly states that the annotations are produced as a work for hire by a division of Lexis for the Georgia Assembly in a contract managed through the Code Revision Commission (a committee of the Georgia legislature). The copyright vests in the state of Georgia. The Ars article implies (based on my reading) that the copyright belongs to Lexis. These two readings provide very different starting points.
Separately, the Ars article raises FUD about the copy of the statutes hosted on the Lexis website, but the state of Georgia clearly links to this as the code. Lexis, as a third party without the ability to make law (and as an organization of lawyers) has some hedges it probably has to make when posting legal documents. Georgia claims this is the official text of the statutes. I'll defer to Georgia on this matter and accept the Lexis text as canonical.
> Beyond doubt, state laws are not copyrightable. Nor are other materials created by state legislators in the course of performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. (Ante, at 8–9). Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” (Ante, at 9) (emphasis added). The core question this case presents, as I see it: Are the annotations in the Official Code of Georgia Annotated (OCGA) done in a legislative capacity? The answer, I am persuaded, should be no.