throbber

`
`
`
`No. 18-1150
` In the Supreme Court of the United States
`
`STATE OF GEORGIA, ET AL., PETITIONERS
`v.
`PUBLIC.RESOURCE.ORG, INC.
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`BRIEF OF THE CENTER FOR DEMOCRACY AND
`TECHNOLOGY AND CATO INSTITUTE AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`
`MARTA F. BELCHER
`Counsel of Record
`MONICA A. ORTEL
`JAMES H. RICKARD
`ROPES & GRAY LLP
`1900 University Avenue
`East Palo Alto, CA 94303
`(650) 617-4000
`Marta.Belcher@ropesgray.com
`
`LISA A. HAYES
`ROBERT S. ADAMS IV
`CENTER FOR DEMOCRACY
`AND TECHNOLOGY
`1401 K Street NW, Ste. 200
`Washington, DC 20005
`
`
`
`LESLIE M. SPENCER
`STEPHEN MEIL
`ROPES & GRAY LLP
`1211 Avenue of the
`Americas
`New York, NY 10036
`
`ILYA SHAPIRO
`TREVOR BURRUS
`SAM SPIEGELMAN
`CATO INSTITUTE
`1000 Mass. Avenue NW
`Washington, DC 20001
`
`
`
`
`
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`
`
`Page
`Interest of amici curiae .................................................. 1
`Summary of the argument .............................................. 2
`Argument:
`I. Granting a copyright monopoly over official
`codes undermines the constitutional purpose of
`copyright ................................................................... 4
`A. Copyright takes works out of the public
`domain only because doing so ultimately
`benefits the public .......................................... 5
`B. The government does not need copyright
`incentives to publish the official annotated
`code ................................................................... 8
`II. The official version of the law should not be
`behind a paywall .................................................... 13
`A. People should not be charged to access the
`laws they pay the government to write .... 13
`B. People must have access to the laws that
`bind them ....................................................... 15
`C. Forcing people to access official codes
`through a private website discourages
`public discourse ............................................. 17
`1.
`People are likely to be confused about
`what material they are entitled to
`share .................................................... 17
`Private parties may limit users’
`ability to disseminate content .......... 18
`III. Forcing people to access official codes through a
`private website kills competition and
`undermines users’ privacy and anonymity ........ 19
`(I)
`
`2.
`
`
`
`

`

`
`
`II
`
`
`Table of Contents—Continued
`
`
`Page
`
`A. Granting a copyright monopoly
`undermines competition .............................. 19
`B. Granting a copyright monopoly forces
`users to agree to a private party’s terms
`and conditions ............................................... 21
`C. Forcing people to access the official code
`through a private website endangers
`users’ anonymity and privacy ..................... 22
`1.
`Private parties may monitor users
`as they search and view the law ...... 23
`The laws a user views and
`searches for can reveal sensitive
`information ......................................... 24
`3. Undermining users’ anonymity has
`a chilling effect ................................... 26
`Conclusion ........................................................................ 27
`
`2.
`
`
`
`
`
`

`

`III
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`Cases:
`
`Banks v. Manchester, 128 U.S. 244 (1888) ................. 9
`Barlow v. United States, 32 U.S. 404 (1833) ............ 16
`Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .... 13
`Building Officials & Code Adm’rs v. Code Tech.,
`Inc., 628 F.2d 730 (1st Cir. 1980) ......................... 10
`Community for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989)................................................. 10
`Connally v. Gen. Constr. Co.,
`269 U.S. 385 (1926)................................................. 17
`Eldred v. Ashcroft, 537 U.S. 186 (2003) .............. 6, 7, 8
`Estate of Hogarth v. Edgar Rice Burroughs,
`Inc., No. 00 CIV. 9569 (DLC),
`2002 WL 398696 (S.D.N.Y. Mar. 15, 2002) ......... 10
`FCC v. Fox Television Stations, Inc.,
`132 S. Ct. 2307 (2012) ............................................ 16
`Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) .......... 5
`Georgia v. Harrison Co., 548 F. Supp. 110
`(N.D. Ga. 1982), vacated by 559 F. Supp. 37
`(N.D. Ga. 1983) ....................................................... 16
`Globe Newspaper Co. v. Superior Court,
`457 U.S. 596 (1982)................................................. 19
`International News Serv. v. Associated Press,
`248 U.S. 215 (1918)................................................... 4
`McCulloch v. Maryland, 17 U.S. 316 (1819) ............ 10
`McIntyre v. Ohio Elections Comm’n,
`514 U.S. 334 (1995)................................................. 26
`
`
`
`
`
`

`

`IV
`
`
`
`
`Cases—Continued:
`
`Page(s)
`
`Nixon v. Adm’r of Gen. Servs.,
`433 U.S. 425 (1977)................................................. 13
`Siegel v. Time Warner Inc.,
`496 F. Supp. 2d 1111 (C.D. Cal. 2007) ................. 10
`Tattered Cover, Inc. v. City of Thornton,
`44 P.3d 1044 (Colo. 2002) ...................................... 26
`Twentieth Century Music Corp. v. Aiken,
`422 U.S. 151 (1975)......................................... 5, 7, 19
`United States v. Valle,
`807 F.3d 508 (2d Cir. 2015) ................................... 24
`Veeck v. S. Bldg. Code Cong. Int’l, Inc.,
`293 F.3d 791 (5th Cir. 2002) (en banc),
`cert. denied, 539 U.S. 969 (2003) .......................... 10
`
`Constitution and statutes:
`
`U.S. Const. Art. 1, § 8, Cl. 8 ................................... 5, 19
`Ga. Code Ann. (OCGA): ..................................... passim
`§ 1-1-8 ..................................................................... 16
`§ 16-6-2 ............................................................. 12, 25
`§ 16-12-80 ............................................................... 12
`§ 17-17 .................................................................... 25
`§ 26-5 ...................................................................... 25
`§§ 31-9a to 9b ........................................................ 25
`§ 37-3 ...................................................................... 25
`
`
`
`
`
`
`
`

`

`
`Miscellaneous:
`
`V
`
`Page(s)
`
`Federal Trade Commission, Data Brokers: A
`Call for Transparency and Accountability
`(May 2014), https://www.ftc.gov/system/
`files/documents/reports/data-brokers-call-
`transparency-accountability-report-federal-
`trade-commission-may-2014/140527
`databrokerreport.pdf ............................................ 25
`Georgia Code – LexisNexis, Georgia Secretary
`of State (2018), https://sos.ga.gov/index.php
`/elections/georgia_code_-_lexisnexis .................. 23
`Georgia General Assembly, Official Code of
`Georgia Annotated, LexisNexis,
`http://www.lexisnexis.com/hottopics/gacode/
`default.asp............................................................... 21
`Georgia Law, https://georgia.gov/popular-
`topic/georgia-law ....................................... 16, 17, 21
`H.R. Rep. No. 609, 100th Cong., 2d Sess. 17
`(1988) ......................................................................... 7
`Kashmir Hill, Data Broker Was Selling Lists of
`Rape Victims, Alcoholics, and “Erectile
`Dysfunction Sufferers,” Forbes (Dec. 19,
`2013) ......................................................................... 25
`Idaho Code, LexisNexis,
`https://store.lexisnexis.com/products/idaho -
`code-skuusSku6981 ............................................... 15
`Letter from Thomas Jefferson to Isaac
`McPherson (Aug. 13, 1813) ..................................... 6
`Letter from Thomas Jefferson to James
`Madison (July 31, 1788), in 13 Papers of
`Thomas Jefferson 443 (J. Boyd ed. 1956) ............. 6
`
`
`
`
`
`
`
`

`

`
`Miscellaneous—Continued:
`
`VI
`
`Page(s)
`
`LexisNexis:
`Lexis Advanced Packages for Online Legal
`Research (2019),
`https://www.lexisnexis.com/en-us/
`SmallLaweCommerce ..................................... 14
`Privacy Policy (May 25, 2018),
`https://www.lexisnexis.com/en-
`us/terms/privacy-policy.page ......................... 23
`Taxes, https://store.lexisnexis.com
`/help/taxes ......................................................... 14
`Terms & Conditions (Jan. 7, 2013),
`https://www.lexisnexis.com
`/terms/ ............................................. 21, 22, 23, 24
`Terms & Conditions for Use of the Online
`Services (May 23, 2018),
`https://www.lexisnexis.com/en-
`us/terms/general/default.page ................. 18, 19
`John Locke, The Second Treatise of Civil
`Government (1690), https://www.gutenberg.
`org/files/7370/7370-h/7370-h.htm ......................... 11
`Douglas MacMillan, How to stop companies
`from selling your data, Wash. Post (June 24,
`2019) ......................................................................... 25
`Monopolies. Perpetuities. Corporations.
`Ecclesiastical Endowments in J. Madison,
`Writings (J. Rakove ed. 1999) ............................ 6, 7
`Nat’l Conference of State Legislatures, State
`Legislatures, State Statutes/Code: Holder of
`Copyright (2011), http://www.ncsl.org/
`documents/lsss/Copyright_Statutes.pdf ............ 15
`
`
`
`
`
`

`

`
`Miscellaneous—Continued:
`
`VII
`
`Page(s)
`
`Official Code of Georgia Annotated, LexisNexis
`(Oct. 13, 2018), retrieved from Internet
`Archive Wayback Machine,
`https://web.archive.org/web/
`20181013091438/https://store.
`lexisnexis.com/categories/content-
`type/statutory-codes-175/official-code-of-
`georgia-annotated-skuSKU6647/details ...... 14, 16
`Rainey Reitman, Who Has Your Back?,
`Electronic Frontier Foundation (July 10,
`2017), https://www.eff.org/who-has-your-
`back-2017 ................................................................ 20
`Tennessee Courts System, Tennessee Code—
`Lexis Law Link, http://www.tsc.state.
`tn.us/Tennessee%20Code ..................................... 15
`USDA, Official USDA Food Plans: Cost of Food
`at Home at Four Levels, U.S. Average, July
`2019, https://fns-prod.azureedge.net
`/sites/default/files/media/file/Costof
`FoodJul2019.pdf ..................................................... 14
`
`
`
`
`
`

`

`
`
`
`
`INTEREST OF AMICI CURIAE1
`
`
`
`
`
`The Center for Democracy and Technology (CDT) is
`a non-profit public interest organization. For almost 25
`years, CDT has represented the public’s interest in an
`open, decentralized internet and worked to ensure that
`the constitutional and democratic values of free expres-
`sion and privacy are protected in the digital age. CDT’s
`team has deep knowledge of issues pertaining to the in-
`ternet, privacy, security, technology, and intellectual
`property, with backgrounds in academia, private enter-
`prise, government, and civil society. This diversity of
`experience allows CDT to translate complex policy into
`action: it convenes stakeholders across the policy spec-
`trum, advocates before legislatures and regulatory
`agencies, and helps educate courts.
`The Cato Institute is a nonpartisan, nonprofit think
`tank dedicated to individual liberty, free markets, and
`limited government. Cato’s Robert A. Levy Center for
`Constitutional Studies promotes the principles of consti-
`tutionalism that are the foundation of liberty. To those
`ends, Cato conducts conferences and publishes books,
`studies, and the annual Cato Supreme Court Review.
`Consistent with their values, CDT and Cato believe
`that the Constitution and sound public policy require
`that people have free, unmonitored access to edicts of
`
`
`1 Both parties have consented to the filing of this amicus curiae
`brief. No counsel for any party authored this brief in whole or in
`part, and no person or entity, other than amici curiae or their coun-
`sel, made a monetary contribution intended to fund the preparation
`or submission of this brief.
`
`
`
`(1)
`
`

`

`2
`
`
`government like the Official Code of Georgia Annotated
`(OCGA).
`SUMMARY OF THE ARGUMENT
`The OCGA rightfully belongs to the public. No
`one—not the government, and not a private contrac-
`tor—should be granted a monopoly to exclude people
`from accessing the official version of the laws that bind
`them. Nor should individuals be forced to access the of-
`ficial version of the law through a private website that
`tracks what laws they view.
`Copyright exists to benefit the public. The nation’s
`founders allowed works to be removed, for a limited
`time, from the public domain only because the tempo-
`rary harm to the public of doing so is ultimately out-
`weighed by the public benefit. By granting authors a
`temporary monopoly, copyright gives them incentive to
`create works that otherwise would not exist and that
`will ultimately belong to the public.
`That fundamental bargain of copyright is inapplica-
`ble here. Granting the government a copyright monop-
`oly over the official version of the law harms the public
`with no countervailing benefit. The government does
`not need copyright to incentivize it to publish the official
`version of the law, or annotations that explain the law.
`That is the government’s basic function.
` An engaged and informed public is essential to a
`thriving democracy: participants must be able to easily
`access and engage with the laws governing society.
`They should not be charged to access the official codes
`they paid the government to write. And people must
`have access to the laws that bind them, as well as the
`
`
`
`
`
`

`

`3
`
`
`ability to redistribute the official version of the law
`freely. If only certain portions of the official annotated
`codes are subject to copyright, ordinary people are likely
`to be confused about what they are permitted to share,
`imposing not only financial costs on individuals, but also
`civic costs by hampering their ability to speak freely
`about the law.
`Finally, allowing a private contractor to be the only
`entity licensed to distribute the official version of the law
`harms people by hampering their ability to view the law
`anonymously. This exclusive license arrangement forces
`people to disclose deeply sensitive information—includ-
`ing the laws that individuals view and the search terms
`they use—to a private party. This data could be dis-
`closed to third parties—including the government—and
`the mere fact that users are monitored could have a
`chilling effect, dissuading them from viewing and under-
`standing the law. Moreover, granting a copyright mo-
`nopoly that allows only licensed entities to display works
`like the OCGA eliminates competition that could lead to
`better terms for users.
`This Court should affirm that the OCGA—an au-
`thoritative government text that aids people in under-
`standing their legal obligations—is a government edict
`that cannot be wrested from the public domain.
`
`
`
`
`
`

`

`
`
`4
`
`ARGUMENT
`I. GRANTING A COPYRIGHT MONOPOLY OVER OFFI-
`CIAL CODES UNDERMINES THE CONSTITUTIONAL
`PURPOSE OF COPYRIGHT
`The nation’s founders intended that, by default, hu-
`man knowledge would be “free as the air to common
`use.” International News Serv. v. Associated Press, 248
`U.S. 215, 250 (1918) (Brandeis, J., dissenting). As Justice
`Brandeis explained, “the noblest of human productions”
`may take on the “legal attribute of property * * * only in
`certain classes of cases where public policy has seemed
`to demand it.” Ibid.
`Copyright exists as a limited exception to that “gen-
`eral rule of law,” 248 U.S. at 250 (Brandeis, J., dissent-
`ing), because it benefits the public by inducing authors
`to create works that otherwise would not exist and that
`will ultimately belong to the public. That is, copyright
`takes works out of the public domain for a limited time
`only because doing so will ultimately benefit the public
`more than the public is harmed by that temporary re-
`moval.
`But the government does not need any incentive to
`write official codes. That is the government’s job. With-
`out the need for this incentive, the fundamental bargain
`of copyright is inapplicable: there is no reason to wrest
`official codes from the public domain when doing so is not
`necessary to motivate their creation. Furthermore, be-
`cause the works removed from the public domain are of-
`ficial codes—as opposed to, for example, artistic works—
`the harm to the public is particularly acute. Extending
`
`
`
`
`
`

`

`5
`
`
`copyright protection to official codes therefore under-
`mines the fundamental purpose of copyright: to benefit
`the public.
`A. Copyright Takes Works Out of the Public Do-
`main Only Because Doing So Ultimately Ben-
`efits the Public
`The Constitution establishes that the purpose of
`copyright is “[t]o promote the progress of science and
`useful arts, by securing for limited times to authors * * *
`the exclusive right to their * * * writings.” U.S. Const.
`Art. 1, § 8, Cl. 8. Providing a limited copyright monopoly
`is supposed to promote progress because it gives au-
`thors the incentive to engage in creative work by allow-
`ing them to financially benefit from those works and to
`control the way those works are used. The purpose of
`granting this monopoly is to benefit the public. As this
`Court has explained, “[t]he sole interest of the United
`States and the primary object in conferring the monop-
`oly lie in the general benefits derived by the public from
`the labors of authors.” Fox Film Corp. v. Doyal, 286
`U.S. 123, 127-128 (1932). That is, “[t]he immediate effect
`of our copyright law is to secure a fair return for an au-
`thor’s creative labor. But the ultimate aim is, by this in-
`centive, to stimulate artistic creativity for the general
`public good.” Twentieth Century Music Corp. v. Aiken,
`422 U.S. 151, 156 (1975).
`This monopoly temporarily harms the public in or-
`der to ultimately bestow greater benefits to the public.
`As Justice Breyer has articulated, copyright “imposes
`upon the public certain expression-related costs in the
`form of (1) royalties that may be higher than necessary
`
`
`
`
`
`

`

`6
`
`
`to evoke creation of the relevant work, and (2) a require-
`ment that one seeking to reproduce a copyrighted work
`must obtain the copyright holder’s permission.” Eldred
`v. Ashcroft, 537 U.S. 186, 248 (2003) (Breyer, J., dissent-
`ing). Justice Breyer explained that, “[t]he first of these
`costs translates into higher prices that will potentially
`restrict a work's dissemination. The second means
`search costs that themselves may prevent reproduction
`even where the author has no objection.” Ibid.
`The founders warned against monopolies and in-
`tended for the harms imposed by the copyright monop-
`oly to be outweighed by the ultimate benefits to the pub-
`lic. See Eldred, 537 U.S. at 246 (Breyer, J., dissenting).
`James Madison wrote that “[m]onopolies * * * ought to
`be granted with caution, and guarded with strictness
`[against] Abuse,” noting that the Constitution “limited
`[monopolies] to two cases, the authors of Books, and of
`useful inventions, in both which they are considered as a
`compensation for a benefit actually gained to the com-
`munity, as a purchase of property which the owner
`might otherwise with[h]old from public use.” Monopo-
`lies. Perpetuities. Corporations. Ecclesiastical Endow-
`ments in J. Madison, Writings 756 (J. Rakove ed. 1999)
`(Madison). Thomas Jefferson warned against even cop-
`yright monopolies. Letter from Thomas Jefferson to
`James Madison (July 31, 1788), in 13 Papers of Thomas
`Jefferson 443 (J. Boyd ed. 1956) (“The saying there shall
`be no monopolies lessens the incitements to ingenuity,
`which is spurred on by the hope of a monopoly for a lim-
`ited time, as of 14 years; but the benefit even of limited
`monopolies is too doubtful to be opposed to that of their
`general suppression”); see also Letter from Thomas Jef-
`ferson to Isaac McPherson (Aug. 13, 1813).
`
`
`
`
`
`

`

`
`
`7
`
`These writings demonstrate that the founders im-
`posed the harms of copyright on the public only to ulti-
`mately secure even greater benefits for the public. In
`other words, “the Copyright Clause [is] a grant of legis-
`lative authority empowering Congress ‘to secure a bar-
`gain—this for that.’ ” Eldred, 537 U.S. at 214 (citation
`omitted). Under the terms of this bargain, the benefits
`to the public must ultimately outweigh the temporary
`harms to the public. That is why the scope and duration
`of copyright protection are limited: to balance the effect
`on the public so that the public ultimately benefits more
`than it is harmed. Madison 756; Eldred, 537 U.S. at 245-
`248 (Breyer, J., dissenting) (“The ‘reward’ is a means,
`not an end. And that is why the copyright term is lim-
`ited. It is limited so that its beneficiaries—the public—
`‘will not be permanently deprived of the fruits of an art-
`ist’s labors’ ” (quoting Stewart v. Abend, 495 U.S. 207
`(1990))); see also Twentieth Century, 422 U.S. at 156
`(“The limited scope of the copyright holder’s statutory
`monopoly, like the limited copyright duration required
`by the Constitution, reflects a balance of competing
`claims upon the public interest: Creative work is to be
`encouraged and rewarded, but private motivation must
`ultimately serve the cause of promoting broad public
`availability of literature, music, and the other arts.”); El-
`dred, 537 U.S. at 214 (“The economic philosophy behind
`the clause empowering Congress to grant patents and
`copyrights is the conviction that encouragement of indi-
`vidual effort by personal gain is the best way to advance
`public welfare” (quoting Mazer v. Stein, 347 U.S. 201,
`219 (1954)) (internal quotation marks omitted)); H.R.
`Rep. No. 609, 100th Cong., 2d Sess. 17 (1988) (“Under the
`U.S. Constitution, the primary objective of copyright
`
`
`
`
`
`

`

`8
`
`
`law is not to reward the author, but rather to secure for
`the public the benefits derived from the authors’ labors.
`By giving authors an incentive to create, the public ben-
`efits in two ways: when the original expression is cre-
`ated and * * * when the limited term * * * expires and
`the creation is added to the public domain.”).
`The “principal responsibility in this area of the law”
`is “to protect the public interest in free access to the
`products of inventive and artistic genius.” Eldred, 537
`U.S. at 242 (Breyer, J., dissenting). Justice Breyer has
`noted—quoting the legislators who wrote the U.S.
`House of Representatives Report on the landmark Cop-
`yright Act of 1909—that “were a copyright statute not
`‘believed, in fact, to accomplish’ the basic constitutional
`objective of advancing learning, that statute ‘would be
`beyond the power of Congress’ to enact.” Id. at 247
`(Breyer, J., dissenting) (quoting H.R. Rep. No. 2222,
`60th Cong., 2d Sess. 6-7 (1909)). That is why Justice
`Breyer urged, in Eldred, that the Court “examine the
`statute’s effects in light of these well-established consti-
`tutional purposes” to see whether “copyright’s tradi-
`tional economic rationale applie[d]” in that case and
`whether the statute at issue there would “act as an eco-
`nomic spur encouraging authors to create new works.”
`Id. at 247, 254 (Breyer, J., dissenting).
`B. The Government Does Not Need Copyright
`Incentives to Publish the Official Annotated
`Code
`Here, the fundamental bargain of copyright is inap-
`plicable because the government does not need the fi-
`nancial incentives of copyright to produce the official
`version of the law. There is no reason to remove the
`
`
`
`
`
`

`

`9
`
`
`OCGA from the public domain; doing so prejudices the
`public without providing any counterbalancing benefit
`to the public.
`The creation and dissemination of the law is the gov-
`ernment’s sole and exclusive province. Indeed, elected
`and appointed officials are given salaries. The govern-
`ment should need no additional incentive to produce the
`official version of the law, or official annotations that ex-
`plain the law. The government must produce the law;
`failure to do so is not the result of insufficient incentive,
`but rather dereliction of duty.
`This Court has declined to grant copyright protec-
`tion to the works of government officials who are paid a
`salary by the public, because such a salary serves as suf-
`ficient incentive. In Banks v. Manchester, this Court
`held that a judge cannot, for the purposes of copyright,
`be regarded as the author of an opinion, decision, state-
`ment of the case, syllabus, or headnote. 128 U.S. 244, 253
`(1888). In its reasoning, the Court pointed to the judge’s
`salary, paid for by the public: “Judges, as is well under-
`stood, receive from the public treasury a stated annual
`salary, fixed by law, and can themselves have no pecuni-
`ary interest or proprietorship, as against the public at
`large, in the fruits of their judicial labors.” Ibid. The
`Court noted that “[t]he question is one of public policy,
`and there has always been a judicial consensus * * * that
`no copyright could, under the statutes passed by Con-
`gress, be secured in the products of the labor done by
`judicial officers in the discharge of their judicial duties.”
`Ibid.
`The works-for-hire doctrine exists for the same rea-
`son: authors do not need copyright incentives to create
`
`
`
`
`
`

`

`10
`
`
`when they are being paid a salary to do so. Under the
`doctrine, copyright ownership of works for hire vests in
`the employer or other person for whom the work is pre-
`pared. See Community for Creative Non-Violence v.
`Reid, 490 U.S. 730, 730 (1989). That is because, in the
`employment context, copyright “directs its incentives
`towards the person who initiates, funds and guides the
`creative activity, namely, the employer, but for whose
`patronage the creative work would never have been
`made.” Siegel v. Time Warner Inc., 496 F. Supp. 2d 1111,
`1136 (C.D. Cal. 2007); Estate of Hogarth v. Edgar Rice
`Burroughs, Inc., No. 00 CIV. 9569 (DLC), 2002 WL
`398696, at *19 (S.D.N.Y. Mar. 15, 2002).
`Official government works like the OCGA can be
`analogized to a “work for hire” where the copyright
`should vest in the citizens who employ the government
`to create such works. Indeed, under the doctrine of pop-
`ular sovereignty, where the government exercises any
`sovereign powers, it acts through authority delegated
`from the people. McCulloch v. Maryland, 17 U.S. 316,
`404-405 (1819). The Eleventh Circuit correctly held here
`that “lawmakers and judges are draftsmen of the law,
`exercising delegated authority, and acting as servants of
`the People, and whatever they produce the People are
`the true authors. When the legislative or judicial chords
`are plucked it is in fact the People’s voice that is heard.”
`Pet. App. 19a; see also Veeck v. S. Bldg. Code Cong. Int’l,
`Inc., 293 F.3d 791, 799 (5th Cir. 2002) (en banc) (“In per-
`forming their function, the lawmakers represent the
`public will, and the public are the final ‘authors’ of the
`law.”), cert. denied, 539 U.S. 969 (2003); Building Offi-
`cials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730,
`734 (1st Cir. 1980) (“The citizens are the authors of the
`
`
`
`
`
`

`

`11
`
`
`law, and therefore its owners, regardless of who actually
`drafts the provisions.”). Just as an employee hired to
`draft a work does not need additional copyright incen-
`tives to do so, copyright is not needed to move the gov-
`ernment to create works like the OCGA because the
`government exists to serve the people by drafting such
`works.
`The government already has the incentive to create
`works like the OCGA to further its constituents’ under-
`standing and knowledge of the law so that those constit-
`uents can obey the law. The government has an interest
`in the laws being followed—and in order for laws to be
`followed, laws must be publicly promulgated and under-
`stood. See John Locke, The Second Treatise of Civil
`Government § 137 (1690), https://www.gutenberg.org
`/files/7370/7370-h/7370-h.htm (“[F]or all the power the
`government has, being only for the good of the society,
`as it ought not to be arbitrary and at pleasure, so it ought
`to be exercised by established and promulgated laws;
`that both the people may know their duty, and be safe
`and secure within the limits of the law; and the rulers too
`kept within their bounds.”). Thus, the government is in-
`herently incentivized to create works like the OCGA,
`which both serves as the only official version of the law
`and also explains the laws by providing annotations that
`include statutory history, administrative guidance, and
`summaries of judicial histories. Creating the law and
`promulgating it so that people can understand and follow
`it is an incentive in and of itself. Copyright protection is
`not—and should not be—necessary to induce lawmakers
`to create works like the OCGA.
` Because no incentive is necessary for the govern-
`ment to create works like the OCGA, granting copyright
`
`
`
`
`
`

`

`12
`
`
`protection of such works ignores half of the bargain that
`copyright law strikes: it removes the official codes from
`the public domain, but provides none of the incentives
`promised in return. And, because of the nature of the
`work, the work’s return to the public domain upon expi-
`ration of its term of copyright protection is unlikely to
`provide much benefit to the public; by that time, most
`annotations will likely be irrelevant, as many laws and
`their interpretations will have evolved.
`In the case of the OCGA and similar works, the bar-
`gain is backwards: not only does the public fail to reap
`any benefits from the removal of such documents from
`the public domain, but the harm to the public of that re-
`moval is particularly significant given the nature of the
`works.
`Removing the official version of the law from the
`public domain is particularly concerning. As discussed
`below (p. 15, infra), the OCGA is designated as the au-
`thoritative source of the meaning of the law. Removing
`such a work imposes harms beyond those typically im-
`posed by copyright—the public is deprived not of a cre-
`ative work, but rather the official version of the law, in-
`cluding explanations as to what the law means and what
`actions could result in civil or criminal liability.
`The OCGA’s annotations are crucial for understand-
`ing the law. For example, the OCGA includes annota-
`tions that inform people of legislation that the judiciary
`either limited (OCGA § 16-12-80 (explaining that private
`possession—but not distribution—of obscene materials
`is protected under the Constitution)) or entirely struck
`down as unconstitutional (OCGA § 16-6-2 (explaining
`that Georgia’s anti-sodomy law is unconstitutional to the
`
`
`
`
`
`

`

`13
`
`
`extent it criminalizes private acts between consenting
`adults)). Even after courts have struck down these stat-
`utes as unconstitutional, they nevertheless remain in the
`unannotated code. Restricting access to the annotated
`code—which provides notice that such statutes are un-
`constitutional—causes harm to the public.2
`Copyright strikes a balance: the harm resulting
`from a work’s removal from the public domain is in-
`tended to be outweighed by the benefit of the work’s cre-
`ation. Here, however, there is weight on only one side
`of the scale: the harm to the public. Because of the na-
`ture of the work, the weight on that side of the scale is
`unusually heavy—but, on the other side of the scale,
`there is no countervailing benefit to the public at all.
`II. THE OFFICIAL VERSION OF THE LAW SHOULD
`NOT BE BEHIND A PAYWALL
`A. People Should Not Be Charged to Access the
`Laws They Pay the Government to Write
`All people must be granted access to the laws that
`bind them, and they should not be charged multiple
`times for the privilege. Individuals already pay the gov-
`ernment, with their taxes, to write works like the
`OCGA. They should not be charged a second time by the
`
`
`2 Permitting copyright over works like the OCGA is at odds
`with the principles behind the separation of powers that is inherent
`to our democracy. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425,
`441-446 (1977); Buckley v. Valeo, 424 U.S. 1, 118-124 (1976) (per cu-
`riam). When the legislative branch restricts the distribution of the
`annotations that explain which statutes have been held unconstitu-
`tional or otherwise abrogated by courts, it undermines the power of
`the judiciary.
`
`
`
`
`
`

`

`14
`
`
`government, or by a government contractor, to access
`those works—particularly at monopoly prices.
`Until the Eleventh Circuit’s ruling in this case,
`Lexis—as the government’s exclusive licensee—was
`able to charge monopoly prices for the OCGA, and a hard
`copy cost $400 (not including tax or shipping). Official
`Code of Georgia Annotated, LexisNexis (Oct. 13, 2018),
`retrieved fro

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