1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:05,800 --> 00:00:09,160 Speaker 1: In a class between state power and public access at 3 00:00:09,160 --> 00:00:13,440 Speaker 1: the Supreme Court public Access one. In a close decision, 4 00:00:13,480 --> 00:00:17,800 Speaker 1: the Court rule that Georgia cannot copyrighted States annotated legal 5 00:00:17,840 --> 00:00:21,840 Speaker 1: code and put the law behind a paywall. During oral arguments, 6 00:00:21,920 --> 00:00:24,759 Speaker 1: Justice Neil Gorsch had posed the question at the heart 7 00:00:24,760 --> 00:00:28,320 Speaker 1: of the issue, why would we allow the official law 8 00:00:28,960 --> 00:00:32,519 Speaker 1: enacted by a legislature a proved equivalent of being approved 9 00:00:32,520 --> 00:00:36,919 Speaker 1: by the judge and anotations? As Justice Ginsburg indicated, why 10 00:00:36,920 --> 00:00:40,000 Speaker 1: wouldn't we allow the official law to be hidden behind 11 00:00:40,000 --> 00:00:44,239 Speaker 1: a paywall? In the majority opinion, Chief Justice John Roberts 12 00:00:44,240 --> 00:00:47,720 Speaker 1: wrote that no one can own the law, joining me 13 00:00:47,720 --> 00:00:51,480 Speaker 1: as intellectual property litigator Terence Frost, a partner at Captain 14 00:00:51,600 --> 00:00:56,520 Speaker 1: Yuchen Rosenman, so Terry start by explaining what Georgia wanted 15 00:00:56,560 --> 00:01:01,279 Speaker 1: to do. Georgia published the Law of the State of Georgia. 16 00:01:01,560 --> 00:01:04,559 Speaker 1: They accepted didn't simply publish the language of the law. 17 00:01:04,680 --> 00:01:08,200 Speaker 1: It also published an annotation for each sexual law, which 18 00:01:08,440 --> 00:01:12,160 Speaker 1: essentially was a helpful guide to understanding how that code 19 00:01:12,160 --> 00:01:16,759 Speaker 1: section had been interpreted by other courts. Georgia copyrighted what 20 00:01:16,880 --> 00:01:19,679 Speaker 1: was called the Official Code of George annotated because it 21 00:01:19,720 --> 00:01:22,520 Speaker 1: included not just the loss but the anotation. A pro 22 00:01:22,640 --> 00:01:26,560 Speaker 1: bono organization came along and bought a set of the 23 00:01:26,720 --> 00:01:31,520 Speaker 1: entire Georgia Code annotated, scanned it page by page, and 24 00:01:31,520 --> 00:01:34,360 Speaker 1: then start posting it online so that people would have 25 00:01:34,600 --> 00:01:38,039 Speaker 1: free access to the Official Code of Georgia anoitated. And 26 00:01:38,160 --> 00:01:41,040 Speaker 1: Georgia didn't like that, so the State of Georgia filed 27 00:01:41,040 --> 00:01:45,480 Speaker 1: suit for copyright infringement, again the pro bono organization, and 28 00:01:45,840 --> 00:01:48,720 Speaker 1: that's how we got into court, the issue being mostly 29 00:01:48,960 --> 00:01:53,120 Speaker 1: whether the annotations could be copyrighted. There was no doubt 30 00:01:53,160 --> 00:01:56,320 Speaker 1: that the law couldn't be copyrighted. The Supreme Court had 31 00:01:56,360 --> 00:01:59,480 Speaker 1: already said on multiple occasions that the actual words of 32 00:01:59,520 --> 00:02:03,080 Speaker 1: the law cannot be copyrighted, and so the question was, 33 00:02:03,280 --> 00:02:08,200 Speaker 1: by adding these annotations to the law, could you protect 34 00:02:08,600 --> 00:02:12,440 Speaker 1: the new work? The combination of the words of the 35 00:02:12,440 --> 00:02:16,640 Speaker 1: statue plus the annotation, could you protect that under copyright law? 36 00:02:17,320 --> 00:02:21,079 Speaker 1: So one way of thinking about it is that they 37 00:02:21,080 --> 00:02:24,640 Speaker 1: were arguing that as long as the Code of Georgia 38 00:02:24,720 --> 00:02:27,000 Speaker 1: was out there without the annotations and not copy writable, 39 00:02:27,160 --> 00:02:30,160 Speaker 1: people could access that. The problem is that most of 40 00:02:30,200 --> 00:02:33,720 Speaker 1: the time these annotated codes are all that there is 41 00:02:34,160 --> 00:02:37,080 Speaker 1: out in the public record for people to consult. And 42 00:02:37,120 --> 00:02:39,600 Speaker 1: so the question really presented in part to the Court 43 00:02:39,680 --> 00:02:44,160 Speaker 1: was could you sort of hide the law behind copyright 44 00:02:44,480 --> 00:02:49,280 Speaker 1: by simply adding annotations to the statute. So Chief Justice 45 00:02:49,400 --> 00:02:53,120 Speaker 1: John Roberts wrote the majority opinion. What was his thinking, 46 00:02:53,720 --> 00:02:58,600 Speaker 1: It's a fascinating coalition here. June, the Supreme Court vote 47 00:02:58,600 --> 00:03:03,960 Speaker 1: at five to four ruling that the Georgia Annotated Code 48 00:03:04,120 --> 00:03:09,840 Speaker 1: could not be copyrighted because the legislators in Georgia could 49 00:03:09,840 --> 00:03:14,520 Speaker 1: not qualify as authors under the Copyright Act of ninety 50 00:03:15,320 --> 00:03:20,080 Speaker 1: and therefore could not take advantage of copyright registration. But 51 00:03:20,200 --> 00:03:23,600 Speaker 1: one of happening things is the majority of five justices 52 00:03:24,000 --> 00:03:28,640 Speaker 1: included Justice Roberts, Justice Course such Justice Kavanaugh, who traditionally 53 00:03:28,639 --> 00:03:31,600 Speaker 1: do vote together, but also Justices Kagan and so Domern, 54 00:03:32,080 --> 00:03:34,920 Speaker 1: who usually are not to be found on a Justice 55 00:03:35,000 --> 00:03:38,680 Speaker 1: Robert's opinion, whereas in the minority descending from the bin 56 00:03:38,840 --> 00:03:42,960 Speaker 1: was Justice Thomas and Justice Alito, along with Justice Ginsburg 57 00:03:43,040 --> 00:03:46,240 Speaker 1: and Justice Bryer. So a fascinating division of the Court 58 00:03:46,320 --> 00:03:48,960 Speaker 1: on this issue that proves that not all cases are 59 00:03:49,000 --> 00:03:52,640 Speaker 1: political at the Supreme Court? Can you figure out what 60 00:03:53,280 --> 00:03:56,320 Speaker 1: made those justices line up the way they did? I 61 00:03:56,360 --> 00:03:58,880 Speaker 1: was trying to think of what it would be. All 62 00:03:58,920 --> 00:04:02,000 Speaker 1: I came up with was that the dissenting justices appeared 63 00:04:02,080 --> 00:04:04,880 Speaker 1: to be the justices that are on the court the longest. 64 00:04:05,560 --> 00:04:09,840 Speaker 1: Clarence Thomas, believe that you are absolutely correct on that, June, 65 00:04:10,280 --> 00:04:14,880 Speaker 1: I am not sure that that's the complete explanation for 66 00:04:15,120 --> 00:04:18,680 Speaker 1: the particular lineup of justices and dissent I will say this, though, 67 00:04:19,080 --> 00:04:22,800 Speaker 1: the two justices who traditionally have been most protective of 68 00:04:22,839 --> 00:04:27,160 Speaker 1: copyright are Justice Ginsburg and Justice Brier, both of whom 69 00:04:27,200 --> 00:04:31,640 Speaker 1: had substantial pre court experience with copyright law, and so 70 00:04:31,720 --> 00:04:34,200 Speaker 1: it did not surprise me if that if anyone was 71 00:04:34,279 --> 00:04:37,320 Speaker 1: going to be arguing that a copyright should apply here, 72 00:04:37,400 --> 00:04:41,760 Speaker 1: it would be Justice Ginsburg Justice Brier. I can't explain 73 00:04:42,040 --> 00:04:45,000 Speaker 1: entirely Justice Thomas's point of view, but it seems he 74 00:04:45,040 --> 00:04:47,719 Speaker 1: tends to be a pragmatist of times, and what concerned 75 00:04:47,800 --> 00:04:51,120 Speaker 1: him was the fact that there are, in addition to Georgia, 76 00:04:51,520 --> 00:04:54,120 Speaker 1: twenty two other states and the District of Columbia and 77 00:04:54,200 --> 00:04:58,960 Speaker 1: two territories who published their laws in an annotated version, 78 00:04:59,240 --> 00:05:02,720 Speaker 1: and he thought the this decision would be inflicting some 79 00:05:02,800 --> 00:05:06,159 Speaker 1: sort of harm upon this large number of other states, 80 00:05:06,200 --> 00:05:08,640 Speaker 1: and as he expressed, it would come as a complete 81 00:05:08,680 --> 00:05:12,320 Speaker 1: surprise to them and therefore with somehow unfair to all 82 00:05:12,400 --> 00:05:15,440 Speaker 1: of the other states as well as Georgia, and that 83 00:05:15,520 --> 00:05:18,080 Speaker 1: he didn't want to do that to them, as a 84 00:05:18,120 --> 00:05:20,599 Speaker 1: little bit different of a dessent than what Justice Brian 85 00:05:20,760 --> 00:05:23,680 Speaker 1: Justice Ginsburg, who really went more to the merits of 86 00:05:23,720 --> 00:05:26,640 Speaker 1: the decision and took this very expensive view of what 87 00:05:26,720 --> 00:05:30,120 Speaker 1: an author is and therefore why this would be copyrightable. 88 00:05:30,600 --> 00:05:33,240 Speaker 1: So what happens now in the twenty two states and 89 00:05:33,400 --> 00:05:36,839 Speaker 1: d C and the two territories, They do not have 90 00:05:36,960 --> 00:05:40,960 Speaker 1: to do anything, but they will be unable to sue 91 00:05:40,960 --> 00:05:45,400 Speaker 1: for copyright infringement. If a public organization comes along similar 92 00:05:45,480 --> 00:05:49,800 Speaker 1: to Public Resource or here and starts publishing the annotated 93 00:05:49,839 --> 00:05:52,559 Speaker 1: codes of these other states in the District Columbia, those 94 00:05:52,600 --> 00:05:55,720 Speaker 1: states and the District can do nothing. They will simply 95 00:05:56,040 --> 00:05:58,719 Speaker 1: have to allow it to happen. Was there a sort 96 00:05:58,760 --> 00:06:03,200 Speaker 1: of populist own to the Chief's decision in that if 97 00:06:03,240 --> 00:06:06,159 Speaker 1: you allowed Georgia to copyright this, you would have the 98 00:06:06,160 --> 00:06:09,240 Speaker 1: economy version of the law of the Code, which everyone 99 00:06:09,240 --> 00:06:12,000 Speaker 1: would get, and then a first class version which only 100 00:06:12,040 --> 00:06:15,720 Speaker 1: people who paid would get. There's certainly a populous tone 101 00:06:15,800 --> 00:06:20,040 Speaker 1: to Chief Justice Roberts majority opinions, as the Eleventh Circuit 102 00:06:20,120 --> 00:06:23,200 Speaker 1: of the Appeal Court that had reviewed this below had said, 103 00:06:23,720 --> 00:06:28,360 Speaker 1: the laws are made by representatives of the people, and 104 00:06:28,400 --> 00:06:32,160 Speaker 1: they cannot then put up a fence around those laws 105 00:06:32,279 --> 00:06:35,760 Speaker 1: so that the people can't have access, because they act 106 00:06:36,000 --> 00:06:39,120 Speaker 1: for and on behalf of the people, and therefore, by 107 00:06:39,279 --> 00:06:43,280 Speaker 1: right these public laws should be of the people and 108 00:06:43,400 --> 00:06:46,560 Speaker 1: free to the people. Now, the Chief Justice did not 109 00:06:46,680 --> 00:06:49,760 Speaker 1: go as far as the Eleventh Circuit in that respect, 110 00:06:50,320 --> 00:06:54,440 Speaker 1: but he did say that the ultimate inquiry here should 111 00:06:54,480 --> 00:06:58,600 Speaker 1: be whether or not the work is attributable in some 112 00:06:58,680 --> 00:07:03,000 Speaker 1: way to a constructive authorship of the people, capital p 113 00:07:03,240 --> 00:07:06,279 Speaker 1: on people. So he at least was willing to admit 114 00:07:06,320 --> 00:07:09,800 Speaker 1: that that's a consideration here, although it was not the 115 00:07:09,920 --> 00:07:14,320 Speaker 1: exclusive reason for his decision. His decision really was expressed 116 00:07:14,360 --> 00:07:19,240 Speaker 1: as being driven by prior cases with respect to judges 117 00:07:19,400 --> 00:07:23,560 Speaker 1: being unable to copyright their decision, and then he said 118 00:07:23,640 --> 00:07:27,680 Speaker 1: that the legislators should also be unable to copyright their work, 119 00:07:28,000 --> 00:07:30,000 Speaker 1: but underlying it, I think there was a sense in 120 00:07:30,040 --> 00:07:33,920 Speaker 1: the majority opinion that judges legislators all work for the people. 121 00:07:34,280 --> 00:07:37,840 Speaker 1: They can't then claim authorship of what they do, because 122 00:07:37,920 --> 00:07:40,240 Speaker 1: only the people can do that and should be freed 123 00:07:40,240 --> 00:07:43,920 Speaker 1: at the people capital p Thanks Terry. That's Terence Fross, 124 00:07:44,000 --> 00:07:48,280 Speaker 1: a partner at Captain Uten Rosen Minton. Thanks for listening 125 00:07:48,320 --> 00:07:51,600 Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen 126 00:07:51,640 --> 00:07:55,200 Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg 127 00:07:55,280 --> 00:07:59,960 Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg 128 00:08:00,000 --> 00:08:03,960 Speaker 1: the Deciding the bet to the end in the cont