Chief Justice John Roberts Jr., U.S. Supreme Court. (Photo: Diego M. Radzinschi/ALM)

The state of Georgia cannot copyright the annotations in its official annotated code, the Supreme Court held Monday in a 5-4 opinion.

Chief Justice John Roberts wrote for the court that the so-called government edicts doctrine, which holds that nonbinding, explanatory legal materials created by judges are not copyrightable, also applies to legislative bodies.

"The Court long ago interpreted the word 'author' to exclude officials empowered to speak with the force of law, and Congress has carried that meaning forward in multiple iterations of the Copyright Act," Roberts wrote in Georgia v. Public.Resource.Org.

The Official Code of Georgia Annotated (OCGA) is supervised by Georgia's Code Revision Commission and published under contract to LexisNexis. At least 22 other states have similar arrangements. Georgia argued that the annotations—which include summaries of judicial decisions applying a given provision, attorney general opinions and related law review articles—are not the law itself. By designating LexisNexis' version the official code, the state can make it available for far less, in a $412 bound volume, than competing versions, which can sell for more than $2,000. The state does not publish the annotations online, but nonprofit Public.Resource.Org had been doing so without authorization from the state.

Roberts ruled that, because the commission is "created by the legislature, for the legislature, and consists largely of legislators," and the OCGA is "published under authority of the state," it must be free to all of the public. To rule otherwise would leave citizens, attorneys, nonprofits and private research companies with only "the economy-class version of the Georgia Code available online."

"The animating principle behind this rule is that no one can own the law," Roberts wrote.

Public.Resource.Org founder Carl Malamud said his organization is "looking forward now to getting back to work, making the law more accessible and easier to use."

He said he's grateful to Goldstein & Russell partner Eric Citron, who argued the case, and Elizabeth Rader of Calliope Legal for their pro bono work on the matter, as well as to the many amici curiae who contributed. "This is a testament to the bar and the lawyers who felt it important to stand up for the rule of law," he said.

Vinson & Elkins counsel Joshua Johnson argued for the state of Georgia. Assistant to the Solicitor General Anthony Yang argued for the United States as amicus curiae.

In his opinion, Roberts looked to precedents that held judicial writings are not copyrightable, even if they don't have the force of law, as long as they are created as part of a judge's official duties.

"As every judge learns the hard way, 'comments in [a] dissenting opinion' about legal principles and precedents 'are just that: comments in a dissenting opinion,'" Roberts wrote, quoting a 1980 decision. "Yet such comments are covered by the government edicts doctrine because they come from an official with authority to make and interpret the law."

Roberts indicated that the government edicts doctrine would not apply to non-lawmaking officials, "leaving States free to assert copyright in the vast majority of expressive works they produce, such as those created by their universities, libraries, tourism offices, and so on."

Justices Clarence Thomas and Ruth Bader Ginsburg each issued dissents.

Ginsburg wrote that the government edicts doctrine covers only works created by judges and legislators in the course of their judicial and legislative duties. Georgia had argued that the annotations are copyrightable in part because they're prepared by LexisNexis for the state's Code Revision Commission. Public.Resource.Org violated that copyright when it bought the 186-volume and all of its supplements and made it available for free online, the state argued. "This ruling will likely come as a shock to the 25 other jurisdictions—22 States, 2 Territories, and the District of Columbia—that rely on arrangements similar to Georgia's to produce annotated codes," Thomas wrote. "Perhaps these jurisdictions all overlooked this Court's purportedly clear guidance."

Latham & Watkins partner Andrew Gass, who contributed to an amicus curiae brief on behalf of 15 current and former government officials, said the reasoning of the opinion will likely apply to the executive branch as well and help clear up the occasional copyright dispute that erupts over state agency scientific findings and policy statements. "A broad spectrum of government output is [now] unquestionably free from copyright protection, which is a wonderful result for citizens of a democracy," Gass said.