The Law Belongs to Everyone: Georgia v. Public.Resource.Org and the Government Edicts Doctrine

In Georgia v. Public.Resource.Org (2020), a divided Supreme Court held that the annotations in Georgia's official annotated code are uncopyrightable government edicts because they are authored by legislators acting as legislators.

In Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020), No. 18-1150 (argued Dec. 2, 2019; decided Apr. 27, 2020), the Supreme Court of the United States held, 5-4, that the State of Georgia could not assert copyright in the annotations contained in the Official Code of Georgia Annotated (OCGA). Chief Justice John Roberts, writing for the majority, grounded the decision in the “government edicts doctrine,” a principle the Court traced to a trio of nineteenth-century decisions: officials empowered to speak with the force of law cannot be the “authors” of the works they create in the discharge of their legislative or judicial duties. Because the OCGA’s annotations were authored by Georgia’s Code Revision Commission — an arm of the legislature acting in a legislative capacity — they fell outside copyright entirely. Justice Clarence Thomas dissented, as did Justice Ruth Bader Ginsburg, each joined in part by other Justices.

At a glance

Case: Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020), No. 18-1150
Court: Supreme Court of the United States (on certiorari to the U.S. Court of Appeals for the Eleventh Circuit)
Argued / Decided: December 2, 2019 / April 27, 2020
Author: Chief Justice Roberts, joined by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh; Justice Thomas dissenting (joined by Justice Alito, and by Justice Breyer in part); Justice Ginsburg dissenting (joined by Justice Breyer)
Holding: Under the government edicts doctrine, works created by legislators (or judges) in the exercise of their official duties are not copyrightable. The OCGA’s annotations are ineligible for copyright because they are authored by the Code Revision Commission acting in a legislative capacity.

The OCGA and the contest over access

Georgia, like many states, publishes a single official codification of its statutes. The OCGA contains the text of the statutes themselves — indisputably uncopyrightable — alongside annotations: summaries of judicial decisions, editor’s notes, references to related authority, law-review citations, and similar editorial matter. Those annotations were prepared by Matthew Bender & Co. (a division of LexisNexis) under a work-for-hire agreement with Georgia’s Code Revision Commission, a body composed largely of state legislators and created by the General Assembly. By statute, the annotations are merged with the statutory text in the one official code, and the State claimed copyright in the annotations, licensing the OCGA to Lexis, which made the statutory text available free but sold the annotated version.

Carl Malamud’s nonprofit, Public.Resource.Org, devoted to making law freely accessible, purchased the OCGA, scanned it, and posted the entire annotated code online, distributing copies to legislators and other organizations. Georgia sued for infringement. The Northern District of Georgia ruled for the State, finding the annotations copyrightable because they lacked independent legal force. The Eleventh Circuit reversed, holding the annotations uncopyrightable as a species of law authored by the People’s representatives. The Supreme Court granted certiorari and affirmed.

Reasoning: a question of “who,” not “what”

Chief Justice Roberts framed the case around authorship. The Copyright Act protects “original works of authorship,” but the century-old government edicts doctrine carves out an exception keyed to the identity of the author. The doctrine emerged from three decisions — Wheaton v. Peters (1834), Banks v. Manchester (1888), and Callaghan v. Myers (1888) — which together established that judges cannot copyright their opinions or the explanatory materials they prepare in their judicial capacity, even though private reporters may copyright their own original additions. The animating rationale is one of equity and authorship: those who make the law are not its “authors” for copyright purposes, because “no one can own the law.”

The decisive move was the Court’s choice of test. The dispositive question, Roberts wrote, “is who made the law” — not what the work contains or whether it carries independent legal force. “If a work is created by a judge or legislator in the course of his judicial or legislative duties, the work is not copyrightable.” That principle reaches beyond binding enactments to “explanatory and procedural materials” legislators produce while doing their jobs. The Court extended the doctrine, previously articulated mostly for judges, to legislators by parity of reasoning: both exercise sovereign authority, and the public’s relationship to the works they author in office is the same.

Applied to Georgia, the test resolved the case. The Code Revision Commission, the Court found, is a legislative body: its members are predominantly legislators, it functions as an arm of the General Assembly, it operates under legislative authority, and its work in producing the annotations is “an act of legislative authority.” That the private contractor Lexis did the drafting did not change the analysis, because the Commission was the statutory “author” under the work-for-hire arrangement, and the Commission’s character controlled. Because the annotations were prepared by legislators acting legislatively, they were government edicts and outside copyright — full stop. The Court declined to decide based on whether the annotations have “the force of law,” precisely because the edicts doctrine looks to authorship rather than legal effect.

The dissents: text versus tradition

The case split the Court along unusual lines, and the dissents pressed two distinct objections. Justice Thomas, joined by Justice Alito (and by Justice Breyer in part), argued that the majority untethered the doctrine from its nineteenth-century roots. Those cases, he contended, denied copyright to materials that carry the force of law — statutes and judicial opinions — not to non-binding explanatory annotations, which look much like the privately authored headnotes the same precedents had said were copyrightable. The Copyright Act, he urged, contains no government-author exclusion in its text, and the majority’s “who not what” test would create uncertainty about which government works are protectable.

Justice Ginsburg, joined by Justice Breyer, dissented on narrower ground. In her view, the annotations were not created in a legislative capacity at all: they are commentary on already-enacted law, prepared after the legislative act of enactment, more akin to a treatise than to lawmaking. On that reading the edicts doctrine simply did not apply, and the annotations should have retained whatever thin copyright their original expression earned.

Open questions

How far does “legislative duties” reach? The majority’s authorship test invites disputes over which government-commissioned works — agency manuals, model codes, official commentary — are produced by officials acting in a lawmaking capacity.
Privately drafted standards incorporated by reference: The decision did not resolve the recurring question of building codes and technical standards authored by private standards-development organizations and then adopted into law, an issue litigated separately in related Public.Resource.Org cases.
State revenue and access models: With official annotations now free to copy, states that funded codification through copyright-backed licensing must rethink how they pay for and present their official codes.

Implications

For public access: Official legal materials authored by legislators or judges — including the annotations bound into an official code — belong in the public domain and may be freely copied, posted, and reused.
For states and official publishers: Copyright-backed licensing arrangements for official annotated codes are no longer viable where the annotations are authored by a legislative body; states must find other funding or accept open access.
For legal publishers: Privately authored, independently published annotations and headnotes remain copyrightable; the vulnerability arises when such work is produced by or for a legislative author and merged into the official code.
For doctrine: Georgia recasts a fragmented nineteenth-century line as a clean authorship rule — the edicts doctrine turns on who created the work, not on its content or legal force — sharpening copyrightability analysis for all government-origin works.

Frequently asked questions

Are the statutes themselves copyrightable? No, and that was never in dispute. Statutory text has always been uncopyrightable. Georgia extended the same treatment to the annotations in the official code because they were authored by a legislative body acting in its legislative capacity.

Does this mean all government works lack copyright? No. The decision concerns works authored by legislators or judges in their official duties. It does not address all government works, and federal works are governed separately by 17 U.S.C. § 105. Privately authored materials remain copyrightable even if they comment on the law.

Why did it matter that a private contractor wrote the annotations? It didn’t change the outcome. Under the work-for-hire arrangement, the Code Revision Commission was the legal “author.” Because the Commission is a legislative body, its authorship triggered the edicts doctrine regardless of who physically drafted the text.