906 F.3d 1229
11th Cir.2018Background
- Georgia publishes the Official Code of Georgia Annotated (OCGA), which merges statutory text with annotations (history lines, case summaries, commentary) and designates the merged work as the official codification of Georgia law.
- The Code Revision Commission (comprised largely of legislative members and staffed/funded by the legislature) directs and supervises LexisNexis under a detailed contract to produce the annotations; the Commission and General Assembly approve the OCGA annually.
- The State of Georgia claims and registered copyright in the OCGA annotations (excluding statutory text); Lexis has exclusive publication rights but must provide a free unannotated online version and limited pricing.
- Public.Resource.Org (PRO) scanned and posted the OCGA online and distributed copies; the State sued for copyright infringement and obtained a district-court injunction; PRO counterclaimed that the annotations are public domain.
- The Eleventh Circuit reversed the injunction, holding the OCGA annotations are attributable to the People (i.e., legislative sovereign action) and thus uncopyrightable.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (PRO) | Held |
|---|---|---|---|
| Whether OCGA annotations are copyrightable | State: annotations are editorial, lack force of law, and are thus copyrightable | PRO: annotations are merged into the official code and created under legislative authority, so they are public domain | Annotations are uncopyrightable: they are sufficiently law-like and attributable to the People |
| Who is the "author" for copyright purposes | State: Lexis (and the State via registration) holds authorship/copyright | PRO: constructive authorship rests with the People/General Assembly because legislature directed, supervised, and adopted annotations | Held that the General Assembly (via the Commission) effectively authored them; People are constructive authors |
| Role of process and formalities in determining "law-likeness" | State: annotations weren’t enacted as statutes and not individually passed through normal legislative bill process | PRO: annual reenactment, merger by statute, bicameral presentment, and legislative control render annotations official and law-like | The legislature’s adoption (bicameralism/presentment) and merger into OCGA weigh toward public-domain status |
| Precedent scope: whether Banks and related cases apply beyond pure statutes/opinions | State: Banks limited; works lacking binding force can be copyrighted (district court relied on this) | PRO: Banks, Wheaton, and later cases recognize "citizen authorship" and extend to law-like adopted materials | Court applied Banks’ principle broadly: works created by officials exercising sovereign legislative authority and given authoritative status fall within the rule |
Key Cases Cited
- Wheaton v. Peters, 33 U.S. 591 (1834) (Supreme Court held court opinions cannot be copyrighted)
- Banks v. Manchester, 128 U.S. 244 (1888) (state judicial opinions are public domain; "author" concept construed to bar copyright)
- Callaghan v. Myers, 128 U.S. 617 (1888) (distinguished Banks; court reporter held copyright in reporter-compiled reports under state tacit assent)
- Veeck v. Southern Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir.) (model building codes, once adopted as law, are public domain)
- Building Officials & Code Adm'rs v. Code Technology, Inc., 628 F.2d 730 (1st Cir.) (state adoption of model code likely renders incorporated materials uncopyrightable)