Supreme Court Takes Clinic Case Testing 19th-Century Copyright Doctrine

U.S. Supreme Court building

The Supreme Court Litigation Clinic’s petition called the Eleventh Circuit’s decision against Georgia a “novel expansion” of what counts as a government edict, which cannot be copyrighted.

June 24, 2019

The Supreme Court on Monday agreed to hear a University of Virginia School of Law clinic case that could have broad implications in the field of copyright law.

The dispute in the case, Georgia v. Public.Resource.Org, Inc., began when the nonprofit organization Public.Resource.Org scanned and posted online 186 volumes and supplements of the “Official Code of Georgia Annotated,” and also distributed digital copies to Georgia legislators.

The volumes are not only a compendium of the state’s laws, but include summaries of judicial decisions and state attorney general opinions, as well as other statutory annotations. Georgia holds registered copyrights in those annotations, which are prepared by a private publisher under a work-for-hire agreement with the state.

Georgia, represented by the Law School’s Supreme Court Litigation Clinic, Meunier Carlin & Curfman, and Vinson & Elkins, claims in its cert petition that the Eleventh Circuit’s decision that the volumes’ annotations are not eligible for copyright protection was a “novel expansion” of the government edicts doctrine. That doctrine, created by an 1834 Supreme Court decision and in dispute in lower courts ever since, says edicts of government — laws — cannot by copyrighted.

“If the Eleventh Circuit’s decision is allowed to stand, Georgia will likely be required either to use tax dollars to pay for preparing and publishing the annotations, or cease publishing them altogether,” Georgia’s cert petition argues.

The case, the clinic says, could affect state experimentation on disseminating useful works while minimizing costs to taxpayers.

Questions about the government edicts doctrine routinely arise in other contexts, from the copyrightability of county tax maps to whether government-adopted industry standards or model codes retain copyright protections.

“The lower courts have struggled in answering those questions without guidance from this Court, which last addressed the government edicts doctrine over a century ago,” the petition says.

The yearlong clinic introduces third-year students to all aspects of current U.S. Supreme Court practice through live cases. Georgia is the clinic’s 17th case before the court since the course’s inception in 2006.

The case is expected to be argued in the late fall or winter.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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