Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: In a class between state power and public access at
Speaker 1: the Supreme Court public Access one. In a close decision,
Speaker 1: the Court rule that Georgia cannot copyrighted States annotated legal
Speaker 1: code and put the law behind a paywall. During oral arguments,
Speaker 1: Justice Neil Gorsch had posed the question at the heart
Speaker 1: of the issue, why would we allow the official law
Speaker 1: enacted by a legislature a proved equivalent of being approved
Speaker 1: by the judge and anotations? As Justice Ginsburg indicated, why
Speaker 1: wouldn't we allow the official law to be hidden behind
Speaker 1: a paywall? In the majority opinion, Chief Justice John Roberts
Speaker 1: wrote that no one can own the law, joining me
Speaker 1: as intellectual property litigator Terence Frost, a partner at Captain
Speaker 1: Yuchen Rosenman, so Terry start by explaining what Georgia wanted
Speaker 1: to do. Georgia published the Law of the State of Georgia.
Speaker 1: They accepted didn't simply publish the language of the law.
Speaker 1: It also published an annotation for each sexual law, which
Speaker 1: essentially was a helpful guide to understanding how that code
Speaker 1: section had been interpreted by other courts. Georgia copyrighted what
Speaker 1: was called the Official Code of George annotated because it
Speaker 1: included not just the loss but the anotation. A pro
Speaker 1: bono organization came along and bought a set of the
Speaker 1: entire Georgia Code annotated, scanned it page by page, and
Speaker 1: then start posting it online so that people would have
Speaker 1: free access to the Official Code of Georgia anoitated. And
Speaker 1: Georgia didn't like that, so the State of Georgia filed
Speaker 1: suit for copyright infringement, again the pro bono organization, and
Speaker 1: that's how we got into court, the issue being mostly
Speaker 1: whether the annotations could be copyrighted. There was no doubt
Speaker 1: that the law couldn't be copyrighted. The Supreme Court had
Speaker 1: already said on multiple occasions that the actual words of
Speaker 1: the law cannot be copyrighted, and so the question was,
Speaker 1: by adding these annotations to the law, could you protect
Speaker 1: the new work? The combination of the words of the
Speaker 1: statue plus the annotation, could you protect that under copyright law?
Speaker 1: So one way of thinking about it is that they
Speaker 1: were arguing that as long as the Code of Georgia
Speaker 1: was out there without the annotations and not copy writable,
Speaker 1: people could access that. The problem is that most of
Speaker 1: the time these annotated codes are all that there is
Speaker 1: out in the public record for people to consult. And
Speaker 1: so the question really presented in part to the Court
Speaker 1: was could you sort of hide the law behind copyright
Speaker 1: by simply adding annotations to the statute. So Chief Justice
Speaker 1: John Roberts wrote the majority opinion. What was his thinking,
Speaker 1: It's a fascinating coalition here. June, the Supreme Court vote
Speaker 1: at five to four ruling that the Georgia Annotated Code
Speaker 1: could not be copyrighted because the legislators in Georgia could
Speaker 1: not qualify as authors under the Copyright Act of ninety
Speaker 1: and therefore could not take advantage of copyright registration. But
Speaker 1: one of happening things is the majority of five justices
Speaker 1: included Justice Roberts, Justice Course such Justice Kavanaugh, who traditionally
Speaker 1: do vote together, but also Justices Kagan and so Domern,
Speaker 1: who usually are not to be found on a Justice
Speaker 1: Robert's opinion, whereas in the minority descending from the bin
Speaker 1: was Justice Thomas and Justice Alito, along with Justice Ginsburg
Speaker 1: and Justice Bryer. So a fascinating division of the Court
Speaker 1: on this issue that proves that not all cases are
Speaker 1: political at the Supreme Court? Can you figure out what
Speaker 1: made those justices line up the way they did? I
Speaker 1: was trying to think of what it would be. All
Speaker 1: I came up with was that the dissenting justices appeared
Speaker 1: to be the justices that are on the court the longest.
Speaker 1: Clarence Thomas, believe that you are absolutely correct on that, June,
Speaker 1: I am not sure that that's the complete explanation for
Speaker 1: the particular lineup of justices and dissent I will say this, though,
Speaker 1: the two justices who traditionally have been most protective of
Speaker 1: copyright are Justice Ginsburg and Justice Brier, both of whom
Speaker 1: had substantial pre court experience with copyright law, and so
Speaker 1: it did not surprise me if that if anyone was
Speaker 1: going to be arguing that a copyright should apply here,
Speaker 1: it would be Justice Ginsburg Justice Brier. I can't explain
Speaker 1: entirely Justice Thomas's point of view, but it seems he
Speaker 1: tends to be a pragmatist of times, and what concerned
Speaker 1: him was the fact that there are, in addition to Georgia,
Speaker 1: twenty two other states and the District of Columbia and
Speaker 1: two territories who published their laws in an annotated version,
Speaker 1: and he thought the this decision would be inflicting some
Speaker 1: sort of harm upon this large number of other states,
Speaker 1: and as he expressed, it would come as a complete
Speaker 1: surprise to them and therefore with somehow unfair to all
Speaker 1: of the other states as well as Georgia, and that
Speaker 1: he didn't want to do that to them, as a
Speaker 1: little bit different of a dessent than what Justice Brian
Speaker 1: Justice Ginsburg, who really went more to the merits of
Speaker 1: the decision and took this very expensive view of what
Speaker 1: an author is and therefore why this would be copyrightable.
Speaker 1: So what happens now in the twenty two states and
Speaker 1: d C and the two territories, They do not have
Speaker 1: to do anything, but they will be unable to sue
Speaker 1: for copyright infringement. If a public organization comes along similar
Speaker 1: to Public Resource or here and starts publishing the annotated
Speaker 1: codes of these other states in the District Columbia, those
Speaker 1: states and the District can do nothing. They will simply
Speaker 1: have to allow it to happen. Was there a sort
Speaker 1: of populist own to the Chief's decision in that if
Speaker 1: you allowed Georgia to copyright this, you would have the
Speaker 1: economy version of the law of the Code, which everyone
Speaker 1: would get, and then a first class version which only
Speaker 1: people who paid would get. There's certainly a populous tone
Speaker 1: to Chief Justice Roberts majority opinions, as the Eleventh Circuit
Speaker 1: of the Appeal Court that had reviewed this below had said,
Speaker 1: the laws are made by representatives of the people, and
Speaker 1: they cannot then put up a fence around those laws
Speaker 1: so that the people can't have access, because they act
Speaker 1: for and on behalf of the people, and therefore, by
Speaker 1: right these public laws should be of the people and
Speaker 1: free to the people. Now, the Chief Justice did not
Speaker 1: go as far as the Eleventh Circuit in that respect,
Speaker 1: but he did say that the ultimate inquiry here should
Speaker 1: be whether or not the work is attributable in some
Speaker 1: way to a constructive authorship of the people, capital p
Speaker 1: on people. So he at least was willing to admit
Speaker 1: that that's a consideration here, although it was not the
Speaker 1: exclusive reason for his decision. His decision really was expressed
Speaker 1: as being driven by prior cases with respect to judges
Speaker 1: being unable to copyright their decision, and then he said
Speaker 1: that the legislators should also be unable to copyright their work,
Speaker 1: but underlying it, I think there was a sense in
Speaker 1: the majority opinion that judges legislators all work for the people.
Speaker 1: They can't then claim authorship of what they do, because
Speaker 1: only the people can do that and should be freed
Speaker 1: at the people capital p Thanks Terry. That's Terence Fross,
Speaker 1: a partner at Captain Uten Rosen Minton. Thanks for listening
Speaker 1: to the Bloomberg Law Podcast. You can subscribe and listen
Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg
Speaker 1: the Deciding the bet to the end in the cont