The Supreme Court Litigation Clinic at the University of Virginia School of Law will return to the U.S. Supreme Court on Monday to determine whether states can hold copyrights in annotations to their official codes.
Clinic lecturer Josh Johnson, an appellate litigation attorney at Vinson & Elkins, will make his oral argument debut at the high court in Georgia v. Public.Resource.Org Inc.
The dispute in the case 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.
The state of Georgia — represented by the 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 a judge-made rule known as the “government edicts doctrine.” That doctrine, created by three 19th-century Supreme Court decisions and in dispute in lower courts ever since, says edicts of government — such as judicial decisions and statutes — cannot by copyrighted.
Johnson said the clinic became interested in this case because there is substantial confusion and disagreement among appeals courts regarding the scope of the judge-made government edicts doctrine. He said numerous states rely on copyright’s economic incentives to induce commercial publishers to prepare and publish their annotated official codes. In Georgia, the OCGA is subject to a price cap, ensuring that it will be made available to the public at a reasonable price.
“If the Eleventh Circuit’s decision is affirmed, publishers will no longer be able to rely on sales of copyrighted works to recoup their costs for preparing annotations,” he said. “Therefore, states will either need to use taxpayer dollars to pay the publishers or stop offering annotated versions of their official codes.”
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.
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