[HN Gopher] Supreme Court rules Georgia state law annotations no...
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Supreme Court rules Georgia state law annotations not copyrightable
[pdf]
Author : erjiang
Score : 183 points
Date : 2020-04-27 19:28 UTC (3 hours ago)
(HTM) web link (www.supremecourt.gov)
(TXT) w3m dump (www.supremecourt.gov)
| supernova87a wrote:
| Aside from the particulars of this case, I feel that the whole
| subject of copyright is generally anti-competitive and rent-
| seeking, as codified in the laws and time limits being inflated
| grossly to suit copyright holders in the current era.
|
| In my opinion, the argument that copyright extension incentivizes
| authors/creators doesn't hold much water. I generally observe
| that there are plenty of people willing to create and publish
| things with absolutely no hope of profit or legal protection, and
| yet we bend over backwards to extend our protections for the
| lucky few to the tune of the author's life + 70 years. Even more
| if for hire. Tell me how that's in the public interest.
| henryfjordan wrote:
| IP laws are anti-competitive and rent-seeking, that's exactly
| the point. I agree that the amount of time copyrights are good
| for is ridiculous, but I still think it's better than not
| having them.
|
| Imagine if J.K.Rowling wrote the first 3 Harry Potter books but
| didn't see a dime because the second they got popular everyone
| with a printing press started selling them royalty-free. Would
| she have finished the series? I got to read all 7 books because
| J.K.Rowling was incentivized to write them by her copyright.
| bgorman wrote:
| Intellectual property is the probably the number one way the
| western world oppresses the poor.
| DaiPlusPlus wrote:
| I assume you're referring to drug patents with that remark?
| zozbot234 wrote:
| Intellectual property monopoly oppresses everyone, not just
| the poor.
| rayiner wrote:
| How is copyright anti-competitive? If you come up with an
| original work independently, why do competitor principles
| require ever letting someone else copy that work? We aren't
| talking about limited resources here.
| scoopertrooper wrote:
| If you want to retain a professional creative class then you
| must implement a system that allows them to benefit from the
| works they produce.
|
| To rely on people producing things producing things without
| economic incentive is essentially the argument for
| anarchosocialism. It might work to some small degree for
| passion projects, but what the overall volume of creative
| production would collapse as creatives would have to find other
| ways to support themselves.
| adammunich wrote:
| This is a huge win for civil liberty.
| SamWhited wrote:
| I'm not sure that it is. While I agree with the final outcome
| (seriously, why would the states be able to copyright
| annotations?), it sounds like the court ignored precedent and
| effectively made up a new law out of whole cloth to reach this
| outcome.
|
| We may be okay with this particular outcome, but would we feel
| the same way if they did it for say Roe v. Wade (or some other
| more established opinion that you like, depending on your
| political leanings)? I can't tell how serious this is, but it
| sounds like another attempt to weaken stare decisis to me
| (again, with the disclaimer that I am not a lawyer or legal
| expert of any kind and maybe it's not nearly as bad as it
| sounds to me?)
| NineStarPoint wrote:
| I'm not so sure it ignores precedent, although it definitely
| extends it. I think Ginsberg in her dissent says it well that
| the issue follows from related precedent as such: "To explain
| why, I proceed from common ground. All agree that headnotes
| and syllabi for judicial opinions--both a kind of annotation
| --are copyrightable when created by a reporter of decisions,
| Callaghan v. Myers, 128 U. S. 617, 645-650 (1888), but are
| not copyrightable when created by judges." She goes on to say
| "In contrast, the role of the legislature encompasses the
| process of 'making laws'- not construing statutes after their
| enactment." and that, "The OCGA annotations, in my appraisal,
| do not rank as part of the Georgia Legislature's lawmaking
| process for three reasons."
|
| Those in the majority instead say "If judges, acting as
| judges, cannot be 'authors' because of their authority to
| make and interpret the law, it follows that legislators,
| acting as legislators, cannot be either." They say this
| extends to the annotations as "That of course includes final
| legislation, but it also includes explanatory and proce-
| dural materials legislators create in the discharge of their
| legislative duties."
|
| Whether the majority is correct in their decision or not, I
| think this is definitely a reasonable clarification of past
| precedent. I think Justice Thomas's dissent is accurate when
| it says that this was not as clear cut a confirmation as the
| Majority opinion's writing makes it out to be, but I think
| saying the decision is incongruous with previous precedent is
| also incorrect.
| SamWhited wrote:
| That may be fair; rereading Ginsburg's dissent though I'm
| still left wondering if it makes sense to apply precedent
| in the way the majority did, or if they were just making
| things up. It's quite possible that I'm just
| misunderstanding what I'm reading too though.
| thaumasiotes wrote:
| > it sounds like the court ignored precedent and effectively
| made up a new law out of whole cloth to reach this outcome.
|
| > We may be okay with this particular outcome, but would we
| feel the same way if they did it for say Roe v. Wade
|
| That's... pretty much exactly what they did for Roe v. Wade.
| SamWhited wrote:
| No, they didn't. In Roe v. Wade they made up a legal test
| which they can do, and they interpreted existing laws in
| terms of their constitutionality. However, as far as I can
| tell that's not what's happening here. They just took a law
| that applies to the judiciary and said "yah, that applies
| to the legislature too now". Again, not a lawyer, so the
| way in which they reached their outcome may not be as bad
| as it seems to me since I don't really have the knowledge
| to evaluate it properly. Just because the decision is good
| though doesn't mean it doesn't have other bad consequences.
| tantalor wrote:
| https://www.scotusblog.com/case-files/cases/georgia-v-public...
| olliej wrote:
| this is a huge win - although it's interesting that Ginsburg and
| some other "liberal" judges seem to side with Georgia in saying
| that the state should be able to put the law of the land behind a
| pay wall.
| wahern wrote:
| Ginsburg daughter is a copyright law scholar who is very pro-
| copyright. Ginsburg's decisions tend to be very reliably pro-
| copyright on a court where consistency on copyright matters is
| utterly lacking among all the other justices. As compared to
| Ginsburg, it's a crap shoot how any particular justice will
| decide a copyright case.
|
| I personally don't think this is a coincidence. I would guess
| that Ginsburg's thinking is heavily influenced by conversations
| with her daughter. Or perhaps Ginsburg's strongly held opinions
| on copyright influenced her daughter's career.
| irrational wrote:
| Why?
| tantalor wrote:
| That dissent refers to "non-binding annotations" which are more
| like the opinions of the law-makers, hence not part of their
| duties because they are _not_ law.
| pmiller2 wrote:
| Indeed, here is the very first paragraph of the dissenting
| opinion by Ginsburg (joined by Breyer), beginning at p. 39 of
| the linked submission:
|
| > Beyond doubt, state laws are not copyrightable. Nor are
| other materials created by state legislators in the course of
| performing their lawmaking responsibilities, _e.g._ ,
| legislative committee reports, floor statements, unenacted
| bills. ( _Ante_ , at 8-9). Not all that legislators do,
| however, is ineligible for copyright protection; the
| government edicts doctrine shields only "works that are (1)
| created by judges and legislators (2) _in the course of their
| judicial and legislative duties_." ( _Ante_ , at 9) (emphasis
| added). The core question this case presents, as I see it:
| Are the annotations in the Official Code of Georgia Annotated
| (OCGA) done in a legislative capacity? The answer, I am
| persuaded, should be no.
| huffmsa wrote:
| Which is reasonable, but isn't this publication THE only
| codified publication of Georgia's laws?
| ejstronge wrote:
| How would your argument change in the event that this
| were the only such publication? How about if there were
| 1,000?
|
| EDIT: I now realize that George effectively only
| published an annotated version of its laws, which can
| only be purchased (it seems) from LexisNexis. While a
| free version is available, this version appears to be
| prepared by LexisNexis (all of this is my understanding
| from ref 1)
|
| 1. https://arstechnica.com/tech-policy/2019/12/justices-
| debate-...
| greggyb wrote:
| The free version is the unannotated code and Lexis is
| required to make it available per the contract with the
| Georgia legislature.
| alistairSH wrote:
| Correct.
|
| Also, IANAL, but my understanding is the annotations are
| de facto required reading for practitioners of law. They
| give all the background and history of the law, without
| which, you would be at a severe disadvantage in the
| courtroom.
| greggyb wrote:
| Per the decision, the un-annotated code is made freely
| available.[0] The issue at hand is the annotations.
|
| The majority opinion is that the key point is authorship.
| Officials whose work has the force of law (aka judges and
| legislators) cannot be authors for purposes of copyright
| of any work produced in their official capacity as a
| lawmaker. Their argument is that the annotations are
| published by the legislative body of Georgia in an
| official capacity, and therefore are not subject to
| copyright.
|
| The first dissent disagrees with the majority's
| interpretation of the government edicts doctrine
| (lawmakers cannot be authors of, and therefore cannot
| hold copyright on, works produced in the discharge of
| their lawmaking duties), finding it too broad and not
| obvious. The core point is that the _type_ of work
| matters, and that in this case the type of work is not
| legislative.
|
| The second dissent argues also that the type of work
| matters, and that annotations such as those under
| consideration do not created in a legislative capacity.
| This agrees with the majority argument about the
| government edicts doctrine, but disagrees about whether
| this work constitutes a government edict.
|
| [0] This is mentioned spanning the bottom of page three
| and the top of page four of the majority opinion (pages
| six and seven of the PDF):
|
| > 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.
| ejstronge wrote:
| In case someone sees '5-4' and assumes the standard Republican
| vs Democractic appointee divide, this is definitely not what
| happened. Might be a case where one should read the various
| justices' opinions before deciding how they feel about the
| case.
| amerine wrote:
| It's a welcome decision, but a very obvious one. Why did Georgia
| need to get told that we, the people, own the laws?
| imapluralistyep wrote:
| As a lawyer, I can chime in here. Annotated statutes are
| special. They have cross references to the cases which cite to
| the statutes. So if you're doing research on a statute, the
| annotated version will have the letter of the law word for
| word, then at the bottom it will have a little topical index
| (with topics based on a part of the statute) under each topic
| will be the cases citation which addressed that topic and a
| brief 1-2 line description of what that case held. Generally,
| one of the publishers puts them together instead of the state
| because it takes a lot of legwork and constant updating as new
| cases interpret the statute. State laws and statutes are
| obviously not something you can claim is your intellectual
| property but when they're annotated you are actually reading a
| lot of stuff that isn't the just the statute.
| CobrastanJorji wrote:
| The dissenting judges would tell you that the laws are not
| copyright, the annotations are, which, although important to
| understanding the law, are not the law.
| simcop2387 wrote:
| But while they aren't the law, they hold the power of law as
| the annotations are used by judges to decide cases.
| wahern wrote:
| As the majority opinion and one dissenting opinion explain,
| whether a work has the force of law is _not_ the test. If
| it were, dissenting judicial opinions would be
| copyrightable, but they 're not. The rule is that works
| produced by judges or legislators acting in their official
| capacities are not copyrightable. In this case, the
| annotations were works-for-hire of the legislature; whether
| they have the force of law is irrelevant.
| QUFB wrote:
| This Amicus brief from other states aligned with Georgia
| attempts to explain the rationale:
|
| https://www.supremecourt.gov/DocketPDF/18/18-1150/114285/201...
| jki275 wrote:
| There's a little more to it than that -- "the laws" are clearly
| beyond the reach of copyright and have been forever.
|
| What this case is about was some kind of annotated version of
| the statutes that included case notes and precedents and such.
| Georgia tried to claim that was subject to copyright. The
| Justices disagreed, claiming that the annotations were
| primarily created by legislators in the course of doing
| legislative work, and thus also could not be copyrighted.
| elliekelly wrote:
| Hopefully this will nudge things along in the case against YC-
| backed UpCodes.[1]. I can see how annotations could be a bit of a
| grey-area when it comes to putting the law behind a paywall but
| the actual text of the code & regulations should absolutely be
| freely available to all.
|
| [1] https://www.enr.com/articles/48507-time-to-settle-the-
| buildi...
| sciurus wrote:
| For background on this, see https://arstechnica.com/tech-
| policy/2019/12/justices-debate-...
| ISL wrote:
| Reading the opinions, it is a breath of fresh air to see one of
| the branches of government relying upon fact and logical argument
| when discussing the issues. This is how America is supposed to
| work.
| rayiner wrote:
| The judicial branch is supposed to rely on facts and logical
| arguments. That is not how "America" writ large, however, is
| "supposed to work." If that's what the framers anticipated,
| they would have have had the other two branches likewise run by
| unelected subject matter experts with life tenure. But they
| didn't.
|
| The fact is that the world is too complicated to figure out via
| facts and logical analysis, and that's why ultimate control of
| policy rests with elected politicians. We're seeing this play
| out at a grand scale right now. In the US, classes are
| cancelled for the rest of the year. Meanwhile, German students
| went back to school a week ago. And in Sweden, lower schools
| were never even shut down in the first place. Logical analysis
| doesn't tell you what are the appropriate trade offs between
| keeping the economy running and keeping people safe. What the
| purposes of the welfare state should be isn't a fact waiting to
| be discovered through empirical methods. These are all
| political judgments. Even where facts and logical analysis
| could play a role, it often doesn't, because experts don't
| agree on often very simple facts, or the experts' answers are
| too complicated to be actionable.
| rumanator wrote:
| > Meanwhile, German students went back to school a week ago.
| And in Sweden, lower schools were never even shut down in the
| first place. Logical analysis
|
| Where do you fit Italy, Spain, or even Portugal in your
| logica analysis? Because arguably the US is being hit harder
| than any of those countries and yet they are respecting their
| quarantine with notable results.
|
| Meanwhile, neither Germany nor Sweden has suffered as much as
| neither Spain or Italy.
| rayiner wrote:
| The US has not been harder but than Italy or Spain, or even
| Sweden.
|
| Sweden has had 2,300 COVID-19 deaths for 10 million people.
| The USA has 25 times as many deaths, but 32 times the
| population. Indeed, American cities with similar population
| and density to Stockholm have far fewer deaths. Washington
| DC is a little smaller and has similar density, but has had
| 165 deaths, versus over 1,100 in Stockholm. (Deaths are
| doubling in both countries every two weeks, so they seem to
| be at similar points in their overall trajectories.)
|
| Similarly, the death rate in the US outside of NYC is
| comparable to that of Germany. (NYC has no counterpart in
| Germany; it's almost three times as dense as Berlin, and
| more than twice as tense as Munich.)
|
| But that's a political decision the Swedes have made, and
| maybe it will prove to be the right one. It could be that,
| in the fall, the virus resurges in places where people have
| been sheltering and have not developed anti-bodies, while
| Swedes manage to avoid that resurgence because they never
| shut down. No expert can tell you which way it will be.
| They can tell you a discrete fact (sheltering in place will
| save more lives than otherwise), but are in no position to
| plug that fact into a value framework and reach a decision.
| But politicians must make a decision one way or the other.
| rumanator wrote:
| > The US has not been harder but than Italy or Spain, or
| even Sweden.
|
| You should check the facts. In the past few weeks New
| York alone reported more covid infections and deaths than
| Spain's total from the start of their outbreak, and New
| York has around 25% the population of Spain.
| tsomctl wrote:
| What's your opinion of Gorsuch and Kavanaugh, in regards to
| them using facts and logical arguments?
| btown wrote:
| Reading and listening to https://www.oyez.org/ - a fantastic
| resource for Supreme Court transcripts - it's clear that
| regardless of their backgrounds and circumstances of their
| appointment, each justice is incredibly intelligent and
| engaged.
|
| The problem is that when it comes to the really sticky, complex
| issues that affect huge swaths of human rights, it's very
| possible for justices, in your words, to "rely upon fact and
| logical argument," but base their end goal/optimization
| function on either "what did the founders of the country
| factually and logically intend" or "what do the norms and
| ideals of modern society suggest would be factually and
| logically sustainable" without regard to the opposite
| viewpoint.
|
| A real balance between these viewpoints keeps the pendulum from
| swinging out of control; it serves as a low-pass filter on the
| often-wild steering of policy, or the whims of a short-term-
| focused electorate. But it's equally important that the
| ultimate power reside long-term with the people. And one very
| possible outcome is that our justices succumb simultaneously to
| a pandemic, during an administration that, to be as charitable
| as possible, does not seem particularly concerned with nuance,
| system stability, or universal enfranchisement. And it's a lot
| to ask of a justice to hold both the meta-meta-viewpoint and
| legal precision in mind, especially as it seems likely that
| constitutional questions will be in play as November
| approaches. All we can do is hope they will rise to the
| occasion.
| thanksforfish wrote:
| The partisan politics you see on TV is thankfully just the tip
| of the iceberg.
| softwaredoug wrote:
| I'm not sure I agree. I think mundane issues become partisan
| whenever they become political, but many mundane issues are
| still just dealt with by whatever bureaucrat or official is
| just doing their job applying the law.
|
| In my experience with the US Federal Gov't (through my wife
| and family) applying the boring law is the norm, and what's
| not normal is when political actors inject themselves or
| create a narrative about an issue to suit their purpose. US
| Federal Employees are deeply apolitical as a workplace
| culture.
|
| We see a lot of the latter, but there's only so much
| bandwidth for it. Most work is boring and getting done in a
| professional manner
| FearNotDaniel wrote:
| I suspect that idiom means just the opposite of what you
| think it means. By "thankfully" I infer that you are relieved
| that the vast majority of political activity, "below the
| surface" of what is seen on TV, is nowhere near as
| reprehensible. Whereas "tip of the iceberg" is generally used
| to imply that the visible problem is merely a fractional
| indication of the much greater and uglier problem that lies
| beneath, being of the same matter and type of that which has
| already been seen.
| thanksforfish wrote:
| Ah correct, I did misuse it. Thank you.
| matheusmoreira wrote:
| You mean this is _not_ the norm? The cases I 've read seemed
| quite reasonable. They happened in the 90s and early 2000s
| though.
| huffmsa wrote:
| There are definitely more than a few partisan court cases,
| but most of them are very very logical. Even when it's a
| partisan, ideological split.
| LiquidSky wrote:
| Ha. The trick is that what's "logical" and what's
| "partisan" depend entirely on who is speaking, like how
| cries of "judicial activism" only ever arise when it's a
| ruling against a conservative position. If it's a ruling
| FOR the conservative position, it's obviously logical and
| sound, and possibly correcting previous evil irrational
| liberal decisions.
| huffmsa wrote:
| No, I rarely read an opinion from the high court that I
| can't at least understand the logic and reasoning behind,
| regardless of if I agree with the conclusion
| tyre wrote:
| This is an easy take if you don't follow the court. The
| cases that tend to get a lot of press tend to be ones
| with clear ideological lines.
|
| But not every case is divided 5-4 along the line of which
| party nominated the justice. There are a lot of
| ideological currents that don't fit cleanly into
| political parties
| tyre wrote:
| I read a few case opinions per year. There are ones that are
| partisan but on the whole are incredibly well thought
| through, argued, and written.
|
| There are some disasters, but even then you get beautiful
| rebuttals (e.g. Kagan's dissent in Rucho v. Common Cause)
| golemotron wrote:
| It's even more impressive when you realize that in many
| cases the opinions are largely researched and written by
| clerks.
| MiroF wrote:
| I would say less impressive? Many great things can be
| produced by teams of what are essentially grad students.
|
| A single person churning out brilliant opinions over
| decades would be more impressive to me.
| ISL wrote:
| It is the norm for the Court. It's just quite contrary to
| much of what we see in the news daily.
|
| This ruling split the judges in an uncommon way, which was
| even more welcome.
| ulkesh wrote:
| It may be the norm, but they also get some completely wrong:
| Citizens United, for example.
| rayiner wrote:
| Citizens United was obviously correct. (While it's not
| dispositive, look up which side the ACLU supported in that
| case.)
| bpodgursky wrote:
| Whether you agree with or disagree with the Citizens United
| outcome, describing the majority opinion as a
| straightforward "completely wrong" (when, for example, the
| ACLU supported the verdict) indicates that you have not, in
| fact, read any of the opinions or dissents, or done
| research about the specific case that was being litigated.
| Retric wrote:
| They overturned an at the time recent Supreme Court
| verdict, which is disruptive and counter to long standing
| president.
|
| https://en.wikipedia.org/wiki/Austin_v._Michigan_Chamber_
| of_...
| MiroF wrote:
| > precedent
|
| and just because precedent is overturned doesn't mean it
| is wrong. I don't like Citizens United as much as the
| next person, but I think this requires a constitution
| change.
| rayiner wrote:
| That doesn't make a decision "wrong." Lots of Supreme
| Court opinions are wrong, and often obviously so. There
| is nothing wrong with overruling them.
|
| _Citizens United_ was an instance of the government
| sliding down a slippery slope of precedent, which forced
| that precedent to be re-evaluated. The facts (the
| government attempting to punish someone for distributing
| a political movie about a political candidate) were so
| stark, they revealed the defects in the precedent that
| may have been obscured previously. Moreover, the
| government made clear at oral argument that there was no
| limiting principle to its position--it acknowledged that,
| had the Court ruled the other way, nothing stopped the
| government from book banning and other core free speech
| violations.
| SilasX wrote:
| Well said (about the dynamics of why a precedent would be
| reversed) ... and welcome back.
| Redoubts wrote:
| What if it's right, but the constitution is wrong?
| huffmsa wrote:
| Then you follow the procedure outlined in article 5 to
| amend the Constitution.
| DaiPlusPlus wrote:
| That is much easier said than done.
|
| It's 2020 and we still don't have a gender equality
| amendment even though the majority of states want one.
|
| ...let alone amendments for healthcare as a right,
| abortion rights, and proportional representation.
| bsder wrote:
| > Reading the opinions, it is a breath of fresh air to see one
| of the branches of government relying upon fact and logical
| argument when discussing the issues.
|
| Your optimism is refreshing, but this is not how law works.
|
| Judges and lawyers start from a conclusion, and then find case
| law to back up their conclusion.
|
| Now, to be fair, most judges and lawyers who are competent tend
| not to go far off the established precedents. This is
| especially true at lower levels where higher judges are going
| to review your case--nobody wants to be the judge who gets
| overturned all the time.
|
| Judges are not engineers. The law regards "truth" as subject to
| negotiation without objective boundaries. An engineer regards
| "truth" as "the thing that kicks your ass when you contradict
| it".
| allears wrote:
| The point is, judges make decisions based on these annotations.
| Therefore, if you're a private citizen, or even an attorney, and
| you're dealing with the court system, you must have access to the
| annotations or you're at a serious disadvantage. For that reason,
| hiding them behind a subscription or paywall is the equivalent of
| "secret" laws, or perhaps justice reserved for the well-to-do.
| tzs wrote:
| I had never heard of the "government edicts doctrine" before.
| Doing a little research, I see why. It is a judicially created
| doctrine created by the Supreme Court ~130 years ago, and this is
| the first time since then it has been back to the Court.
|
| What they decided way back then was that opinions of state court
| judges, like opinions of Federal court judges, were not
| copyrightable. They also decided a little later that annotations
| written by a state-employed annotator where the state did not
| claim copyright on the annotator's work could be copyrighted by
| the annotator.
|
| What's new in this case compared to those cases that originally
| established the government edicts doctrine is that it was a state
| that was trying to assert copyright ownership of the annotations.
| cure wrote:
| Yay for public.resource.org. Carl Malamud does excellent work.
| You can donate here:
| https://public.resource.org/about/donate.html
| lidHanteyk wrote:
| There are interesting implications:
|
| > First, the author of the annotations qualifies as a legislator.
|
| Whoa! There is a massive amount of such code, and the folks
| writing it are usually thought of as private lawyers, rather than
| public legislators. That's a big deal, since the legislative
| process cannot be unconditionally private, but has to be balanced
| to keep the public informed.
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