Two lawyers on opposite sides of the recently-argued Supreme Court copyright case Georgia v. Public.Resource.Org visited Columbia earlier this month to talk about their positions. The discussion gave librarians, faculty, and students a window into the thinking of both sides as they await the Court’s decision in a matter which implicates both advocates of open access to government information and the legal publishing industry.
The dispute arose over the annotations to the State of Georgia’s statutes. Those annotations—which, along with the statutes, comprise the Official Code of Georgia Annotated (OCGA)—have been prepared for Georgia’s legislature since the early 1980s by a commission appointed by the legislature. Although Georgia’s statutes are, of course, not protected by copyright, the State has long taken the position that the annotations are copyrightable, and as such, it has sold and licensed access to them. Public.Resource.Org, a not-for-profit organization that seeks to make government works publicly available online, invited a lawsuit from Georgia by republishing the OCGA without a license. Public.Resource.Org argues that the government edicts doctrine—which carves out official government documents such as court opinions and statutes from copyright protection—also covers these annotations. The Eleventh Circuit ruled in favor of Public.Resource.Org, holding that “no valid copyright interest can be asserted in any part of the OCGA.” Public.Resource.Org, which has an interest in reshaping the law on this issue, acquiesced to the State of Georgia’s cert request to the Supreme Court.
In oral arguments before the Supreme Court, the justices grappled with the issue of whether these annotations qualify as government works such that they are ineligible for copyright protection. Put another way: are these annotations “official” enough to be construed as conceptually inseparable from the underlying statutes? The State of Georgia took the position that the annotations may be copyrighted because they do not establish binding law; rather, they function principally as finding aids for more information about the statute in question: “They’re things like, to give an example . . . one of the annotations that we’re [Georgia] claiming copyright in says: ‘For a survey article on trial practice and procedure, see a particular law review.’” Under Georgia’s view, the annotations can be partitioned from the statutes because they prescribe no legal principles and would not typically be cited in court opinions.
Public.Resource.Org spent much of its time before the Court arguing a related but slightly different theory: that Georgia’s Code Review Commission, which is authorized by the legislature, essentially acts as the legislature in organizing and issuing the annotations. As Public.Resource.Org’s counsel said at oral arguments: “When you speak in the state’s voice with respect to a legal work, you’re asserting a kind of authority.” Under that view, the distinction isn’t so much about statutes-as-binding-law versus annotations-as-finding-aids, but rather about the blurry line between the legislature and the commission that supervises the annotations.
Reflecting on the shape of oral arguments, the speakers at Columbia—Joshua Johnson of Vinson & Elkins, who argued on behalf of the State of Georgia before the Supreme Court, and Professor Shyamkrishna Balganesh of the University of Pennsylvania Law School, who co-wrote an amicus brief in support of Public.Resource.Org’s position—both seemed to believe that the Court’s opinion will turn on those two flavors of the “official or not” distinction.
But many of the questions from students and librarians in the audience at Columbia focused instead on a public policy argument that was addressed briefly but pointedly by Justices Gorsuch and Kavanaugh during arguments. A commercial publisher licenses from Georgia the right to distribute the official version of the annotations, allowing Georgia to avert the costs of publishing them: editorial costs (under the instruction of the commission), design and composition, online distribution, the printing and distribution of paper copies, and so on. Georgia’s contract with the publisher also allows the state to impose a price cap on what the publisher charges for the annotated code in print and online formats. If copyright protection were stripped from the annotations, what incentive would remain for the publisher to take on these tasks? If the publisher were to back out, would Georgia shoulder the costs of preparing and distributing the annotations, or pare back the process of annotating the statutes altogether in the interest of saving money? And from a different angle, given that we now operate in a publishing environment vastly different from that of even ten years ago—with cheaper printing and low-cost options for distributing content online—are the publisher’s value-adds in editorial, design, and distribution compelling as a matter of public policy? If the Court takes up this policy perspective in its decision, then what may have looked like a sound argument in favor of copyright protection from the view of Georgia could be re-spun by the Court—fairly or not—as an unflattering take on the importance of legal publishers’ roles in disseminating government documents. The case has advocates of open access to government info abuzz—but it may be the publishers who should be watching out for the decision.
 Code Review Comm’n v. Public.Resource.Org, Inc., No. 18-1150 (U.S. argued Dec. 2, 2019).
 Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1233 (11th Cir. 2018).
 Code Revision Comm’n v. Public.Resource.Org, Inc., 244 F. Supp. 3d 1350, 1354 (N.D. Ga. 2017).
 For a very helpful summary of the government edicts doctrine in the context of this case, see: William H. Frankel & Andrew McElligott, SCOTUS Agrees to Address Edicts Doctrine for First Time in 130 Years, National Law Review (June 26, 2019), https://www.natlawreview.com/article/scotus-agrees-to-address-edicts-doctrine-first-time-130-years.
 Public.Resource.Org, 906 F.3d at 1232.
 Oral Argument at 7:45, Code Review Comm’n v. Public.Resource.Org, Inc., No. 18-1150 (U.S. argued Dec. 2, 2019), https://www.oyez.org/cases/2019/18-1150.
 Id. at 30:05.
 Public.Resource.Org, 906 F.3d at 1234.