Nature of the Case
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Facts
The State of Georgia has one official code (OCGA). The first page of each volume of the OCGA boasts the State’s official seal and announces to readers that it is “Published Under Authority of the State.” The OCGA includes the text of every Georgia statute as well as various non-binding supplementary materials. There is also a set of annotations that appear beneath each statutory provision. They include summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and a list of related law review articles and similar reference materials. They often include editor’s notes that provide information about the origins of the statutory text, such as whether it derives from a particular judicial decision or resembles an older provision that has been construed by Georgia courts. The OCGA is assembled by a state entity called the Code Revision Commission. A majority of the Commission’s 15 members must be members of the Georgia Senate or House of Representatives. The Commission receives funding through appropriations “provided for the legislative branch of state government.” Under the Georgia Constitution, the Commission’s role in compiling the statutory text and accompanying annotations falls “within the sphere of legislative authority.” Each year, the Commission submits its proposed statutory text and accompanying annotations to the legislature for approval. The legislature then votes to do three things: (1) “enact” the “statutory portion of the codification of Georgia laws”; (2) “merge” the statutory portion “with [the] annotations”; and (3) “publish” the final merged product “by authority of the state” as “the ‘Official Code of Georgia Annotated.’” The annotations in the current OCGA were prepared by Matthew Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. The agreement between Lexis and the Commission states that any copyright in the OCGA vests exclusively in “the State of Georgia, acting through the Commission.” Lexis and its army of researchers perform the lion’s share of the work in drafting the annotations, but the Commission supervises that work and specifies what the annotations must include in exacting detail. Lexis enjoys the exclusive right to publish, distribute, and sell the OCGA. 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. A hard copy of the complete OCGA currently retails for $412.00. Public.Resource.Org (D) is a nonprofit that aims to facilitate public access to government records and legal materials. Without permission, D posted a digital version of the OCGA on various websites, where it could be downloaded by the public without charge. D also distributed copies of the OCGA to various organizations and Georgia officials. The Commission sent D several cease-and-desist letters claiming this action constituted unlawful copyright infringement. When D refused to halt its distribution activities, the Commission sued D on behalf of the Georgia Legislature and the State of Georgia for copyright infringement. D counterclaimed, seeking a declaratory judgment that the entire OCGA, including the annotations, fell in the public domain. The District Court ruled for the Commission. The Court acknowledged that the annotations in the OCGA presented “an unusual case because most official codes are not annotated and most annotated codes are not official.” The Court concluded that the annotations were eligible for copyright protection because they were “not enacted into law” and lacked “the force of law.” The Court granted partial summary judgment and entered a permanent injunction requiring D to cease its distribution activities and to remove the digital copies of the OCGA from the internet. The Eleventh Circuit reversed. The Court deemed the “ultimate inquiry” to be whether a work is “attributable to the constructive authorship of the People.” The Court identified three factors to guide that inquiry: “the identity of the public official who created the work; the nature of the work; and the process by which the work was produced.” It found that each of those factors cut in favor of treating the OCGA annotations as government edicts authored by the People. The Supreme Court granted certiorari.
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