data/Version_XML/Georgia.xml

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<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument next in Case 18-1150, Georgia versus Public.Resource.Org, Inc. Mr. Johnson.</u>
<p id="ORAL ARGUMENT OF JOSHUA S. JOHNSON ON BEHALF OF THE PETITIONERS">
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> Mr. Chief Justice, and may it please the Court: The Eleventh Circuit held that annotations to Georgia's official code are categorically ineligible for copyright protection. That holding conflicts with a straightforward application of the Copyright Act's text and this Court's precedents. Starting with the statute, Sections and 103 of the Act expressly provide that annotations are copyrightable derivative works. Nothing in the Act supports stripping Georgia's annotations of copyright protection merely because they were prepared by a contractor on behalf of a state agency. Therefore, the crux of the parties' dispute is whether this Court's 19th-century precedents support a decision different from the one that would be reached by applying standard interpretive principles to the Copyright Act's plain text. They do not. In fact, those decisions strongly favor Georgia. Together, they hold that while judicial opinions are not copyrightable, annotations added to opinions by a court's official reporter are copyrightable works of authorship. Similarly, while statutory text is not copyrightable, annotated research references are eligible for copyright protection, even if they appear in an official code book like the OCGA. As a diverse coalition of states has explained, affirming the decision below would scuttle numerous states' regimes for publishing annotated official codes. Absent direction from Congress, this Court should not extend a judge-made doctrine to override the systems established by numerous states' democratically elected governments. I invite questions. But as a diverse... so PRO's case rests heavily on an expansive interpretation of just a few sentences of this Court's 1888 Banks decision. But the Banks case really just explained its rationale in a single sentence, and that sentence says that the whole work done by the judges constitutes the authentic exposition and interpretation of the law, which is binding on every citizen and is thus free for publication to all. So we read that sentence as establishing the principle that a work is not copyrightable if it is of a type that can serve as a vehicle for establishing binding law.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> What do you understand the significance to be of the fact that these annotations, the references are official?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Does that... does that give them more weight when <w>they</w><w>'re</w> cited to the court?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> No. And I think that the thing <w>that</w><w>'s</w> official is the code. So <w>it</w><w>'s</w> the Official Code of Georgia.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Whether the... the... whatever the additional material is included in...</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> It does appear in the same publication. That's correct. And I <w>do</w><w>n't</w> think that that makes a difference for purposes of copyright under this Court's precedent. And I think that <w>that</w><w>'s</w> clear from Wheaton and Callaghan. So, in both of those cases, the Court said that a court-appointed official reporter could hold copyright in annotations that appeared in the reporter volumes. So this case is really just the legislative analogue of Callaghan. In Callaghan, the Court held that the official reporter could hold copyright in things like headnotes at the top of a decision. And if you look at the judicial decision summaries in the OCGA, they are materially indistinguishable from those headnotes...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> This case...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Except... go ahead.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But why <w>is</w><w>n't</w>... why <w>is</w><w>n't</w> the legislature like the judge? The... the judge puts his imprimatur on the annotations not copyrightable of the syllabus. And, here, <w>it</w><w>'s</w> the state legislature. Why do you treat the judge and the state legislature differently?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> Well, I think <w>it</w><w>'s</w> different because the general assembly is not enacting individual annotations through bicameralism and presentment. So the annotations are first prepared by a commercial publisher, so by a contractor, and they do that subject to the supervision of the Code Revision Commission.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But they do it as... as a... what do they call it, authors for hire. So the one that would hold the copyright would be the state.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> The state does hold the copyright, that is correct, very much like how an official reporter held the copyright in Wheaton and Callaghan. So, here, the Code Revision Commission, acting on behalf of the state, obtains a copyright for the state. But I think the crucial point under Banks is that the annotations are not individually reviewed by legislators. They do not go through the process of bicameralism and presentment. So...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, but, counsel, <w>are</w><w>n't</w> they approved? I thought they were at least approved as a whole by the legislature.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So I think the Eleventh Circu<w>it</w><w>'s</w> decision is perhaps a little confusing on this issue, but I <w>do</w><w>n't</w> think that <w>there</w><w>'s</w> any disagreement about the underlying facts. The answer is, as the Eleventh Circuit said in its opinion, the annotations are not individually enacted.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I... I understand that. I... I posited that in my question to you.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> Right, right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Aren't they approved as a whole by the legislature?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So what the legislature does every year is passes a reviser act, and the reviser act reenacts the code, including OCGA 1-1-1, which calls for the statutory text to be merged with the annotations.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Okay. All right. So, if <w>that</w><w>'s</w> the case, and you include the word "official" on it, presumably, <w>you</w><w>'re</w> doing that to create some value for the reporter. Why would we allow the official law enacted by a legislature, approved... equivalent of being approved by a judge in annotations, as Justice Ginsburg indicated, why would we allow the official law to be hidden behind a pay wall?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So I <w>do</w><w>n't</w> think that adopting our position would cause the law to be hidden behind a pay wall. First, the law is available on Lexis's website. And also, PRO is free to cut...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> But not the annotations that the legislature has, in some fashion or another, given its official approval to.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> The annotations are not the law. So the law is not behind a pay wall. Also, the annotations are available...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> You're not arguing that <w>it</w><w>'s</w> purely... I thought you had disavowed the argument that <w>it</w><w>'s</w> only things that bind for which copyright's unavailable.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So our position is that if a work is of a type that, as a class, can serve as a vehicle for establishing binding law like judicial opinions...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> And... and <w>are</w><w>n't</w> annotations in that category? Aren't they frequently used by state courts as indications of the legislature's intentions?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> No, not the type of annotations that we're talking about here. We're talking about traditional annotations that are research references or finding aids. They're things like, to give an example from JA 699, one of the annotations that we're claiming copyright in, says for a survey article on trial practice and procedure, see a particular law review.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So <w>you</w><w>'re</w> disavowing that <w>they</w><w>'re</w> ever used by state courts as indications of legislative intent? That never happens?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> They are...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> That's the representation <w>you</w><w>'re</w> making to this Court?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> The annotations would never be used as an indication of legislative intent like you would cite legislative history material.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> There are...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Why does Georgia...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> No, go ahead. Does that apply to all of the annotations in the official code? Does it apply to annotations made by the Georgia Bar?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So the... it applies to all the annotations we're claiming copyright in. The Georgia Bar, I think of those as comments, not necessarily annotations. They're provided by the Georgia Bar Committee to the Code Revision Commission. The bar committees ask that they be included in the code. And, often, the people who write them are involved in actually drafting the statutes. Georgia courts do cite those comments, but we are not claiming copyright in those annotations. PRO is free to copy them. And, in fact, they appear in West's unannotated...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> What is the...</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> ... or unannotated code.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... what is the... what is the theory that distinguishes those annotations from the other annotations?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I... well, I think that, first of all, the author is different. So <w>it</w><w>'s</w> the state bar. The state bar, if it wanted to make a copyright claim, would have to be the one <w>that</w><w>'s</w> making the copyright claim. I <w>do</w><w>n't</w> think that... I think probably those would not be copyrightable if the state bar was trying to make a copyright claim.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Why?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I... I... now I think there could be maybe a debate or dispute about this, but I think that they probably would not be copyrightable because they are offered for the purpose of providing a gloss on the text, the drafter's intent for the statutory text in some cases. And courts in Georgia have treated them as such.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Why would the Georgia Bar have particular insight into the intent of the legislature in enacting a provision of law?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> Well, often... my understanding from reading the introductory text to these comments is that <w>they</w><w>'re</w> often drafted by people who were involved in drafting the legislation. So, even though a bar committee member <w>is</w><w>n't</w> in the legislature, <w>they</w><w>'re</w> often involved in assisting with the drafting of the legislation. Now perhaps...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But a lot of people could be involved in... in... in the drafting of legislation. It could have been proposed by some interest group, it could have been something that was worked on by a law professor. So what distinguishes... those could... those would be copyrightable, <w>should</w><w>n't</w>... <w>would</w><w>n't</w> they be if they... somebody like that wrote an article? So what distinguishes them from the comments of the Georgia Bar?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So I think <w>it</w><w>'s</w> perhaps different because the Georgia Bar has specifically asked for these comments to be included in the OCGA and Georgia courts have treated them as having some authoritative weight. So I think that <w>that</w><w>'s</w> what makes it different. But I want to stress that the comments are not at issue in this case. So I'm just trying to give my best views about whether those are...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I'm sorry...</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> ... copyrightable or not.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... I <w>did</w><w>n't</w> actually in reading this brief understand that. And I'm not sure the court below did because they relied on the comments as one of the reasons for why this was attributable to the state, for the very reasons <w>you</w><w>'re</w> giving, that the state asked for them, that the state commission who prepares them is involved generally in the drafting of the law. And so I <w>do</w><w>n't</w> think they separated out that the only thing you were seeking copyright protection for is the research comments and the... what... tell me exactly which part of the annotations <w>you</w><w>'re</w> seeking.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> It's the materials listed at JA 496 to 497. And I... I can march through those...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, no.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> ... if it would be helpful. But...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That's all right. But I do have a question. If I read Wheaton, Wheaton says anything prepared by the judge <w>can</w><w>'t</w> be copyrighted. That includes headnotes, which are comparable, I think, to summaries that might be included in these annotations because <w>it</w><w>'s</w> prepared by the judge. It remands to see if Wheaton was not an independent contractor and... was an independent contractor and actually sought the copyright. Banks says, if... if you are a separate entity, you can do this, but this is a work-for-hire. And I go back to what Justice Gorsuch was asking you. The state is the one <w>who</w><w>'s</w> requiring this to be done. It reviews it. It approves it. It is setting it out there as a merged document with the actual laws. It may have... merger <w>does</w><w>n't</w> mean <w>it</w><w>'s</w> actual law, but neither are headnotes actual law. Dicta is not actual law. And no one's arguing... <w>you</w><w>'re</w> not arguing under Banks or any of the other cases that the state <w>could</w><w>n't</w> put a copyright in headnotes it prepares or in the dicta in its judicial opinions. So why <w>is</w><w>n't</w> authorship really the most important factor?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I think we...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And if <w>it</w><w>'s</w> going to explain the law, either by reference to comments or by reference to cases that reflect its intent, <w>is</w><w>n't</w> that an explanation, an official explanation of the law?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> So I think we win if authorship is the standard. And I think that <w>that</w><w>'s</w> basically the United States' test. And the United States agrees that we win under that standard. And on the question of what are the...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, it <w>does</w><w>n't</w>, because it sort of limits it. It thinks that <w>it</w><w>'s</w> not official in some sort of unway. Even though <w>it</w><w>'s</w> approved by the legislature, <w>it</w><w>'s</w>... <w>it</w><w>'s</w> merged by its very terms. It's a contract-for-hire, which means you treat it like an employee. If a law clerk prepares my headnotes or my summaries, I <w>do</w><w>n't</w> think I can get a copy... he or she can get a copyright in it. I <w>do</w><w>n't</w> think I can get a copyright in it even as a work-for-hire.</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> Well, I... I think that the answer <w>can</w><w>'t</w> be that the fact that this is an official document makes a difference for copyright purposes under Wheaton and Callaghan. Again, those were official reporters. And if the officialness of the document renders it uncopyrightable, then almost... I mean, all state government documents in some way are official. They come from the state government. But the one thing that we know is that Congress made the policy determination to allow state governments to have copyright. And <w>it</w><w>'s</w> important to emphasize that Congress did this with a 1959 study and 1961 report in front of it saying that annotations by state government employees are copyrightable under current law.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Johnson, why does Georgia have an official annotated code? Why not just an official code?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I think <w>it</w><w>'s</w> for the benefit of readers so that those finding aids are present. And I think the reason why they made it official is because they wanted to have an annotated version subject to a price cap so that it would be available to people at a relatively low price.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Probably governmental... look, I mean, I thought this <w>is</w><w>n't</w> that difficult. If a judge does something in his judicial capacity, it is not copyrightable. If a legislator does something or a group of legislators in their legislative capacity, it is not copyrightable. I mean, who cares who the author is? There are public policy reasons that have existed forever in the law that you make those two things not copyrightable. The executive is harder to separate out, but you could do it. Now that, I think, is basically the SG's position. If <w>it</w><w>'s</w> not in their official capacity, if <w>it</w><w>'s</w> simply a summary or <w>it</w><w>'s</w> a comment upon something done in an official capacity, it is copyrightable, even though it be done by a sworn public servant, all right? There we are. I think <w>that</w><w>'s</w> roughly the SG's position. When I read that, seemed pretty sensible to me and consistent with the precedents. You have a somewhat different position. 2 So I guess my question is, is their position, at least as I understand it, acceptable to you?</u>
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> The SG's position is acceptable to us and we win under that standard. Perhaps it would be helpful for me to explain quickly why we do win under that standard. So the Lexis and the Code Revision Commission are not acting in a law-making capacity when making these annotations.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Yang.</u>
</p>
<p id="ORAL ARGUMENT OF ANTHONY A. YANG FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS">
<u loc="MR. YANG"><w>[MR. YANG]</w> Mr. Chief Justice, and may it please the Court: This Court in Banks determined that there was consensus that no copyright exists in a work by "judicial officers in the discharge of their judicial duties." Banks then held that a judge who in his judicial capacity prepares an opinion or decisions and other materials is not regarded as the author within the meaning of the copyright statute. Those principles from the judicial context also apply in the law-making context. So, if a lawmaker acts in his capacity as a lawmaker and creates a work in the discharge of his law-making duties that is within the process for creating law, no copyright exists. Now, in this case, this case is going to be controlled, however, by Callaghan. Callaghan upheld a copyright in annotations to judicial decisions by an official court reporter, a salaried public officer of the court, who was appointed and removable by the court. Such annotations are written after the fact as an attempt to accurately describe or provide context for the underlying source that...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Yang... I'm sorry. Finish your sentence.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, I was just going to say that the... the annotations here are research aids. They are created after the fact. They provide a comprehensive, not a selective selection of materials related to the statutes. There's no approval for the substance. And, in fact, the context is easier than Callaghan because <w>it</w><w>'s</w> made by a...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Don't finish it that far.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Okay. All right. I'm happy to stop.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I'm... I'm glad I asked you to finish it because if... I mean, you stressed that the Commission <w>does</w><w>n't</w> do anything with respect to these annotations. Suppose the Commission did do something with respect to these annotations. They <w>did</w><w>n't</w> write them themselves, but they supervised the process carefully. They were... they... they imposed some kind of editorial standards. What then?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> I <w>do</w><w>n't</w> know that that would make a difference to the bottom line. Our understanding of the test that draws from Banks is that when a lawmaker acts in his capacity as a lawmaker in the discharge of law-making duties...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Are you saying that the Commission just <w>does</w><w>n't</w> count as a lawmaker? Is that...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, and <w>they</w><w>'re</w> not discharging lawmaking duties, yes, because the Commission is composed of 15 individuals, five of which are not even in the legislative process. In Harrison, the Supreme Court of Georgia recognized that those non-legislative people could actually make the difference in any kind of decision. So <w>it</w><w>'s</w>...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So... so... but the legislature sets up this Commission and puts a bunch of its members on this Commission.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Yep.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And <w>let</w><w>'s</w> say, in my hypothetical world, this Commission actually takes its job seriously and imposes some editorial standards for what will and will not go into the annotation. Still...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Same result and... but <w>it</w><w>'s</w> also in the context of the rest of this case, Section 1-1-1. The statutory portion of the... the... what's produced by Lexis in the... and the Commission is enacted as statute. But Section 1-1-7 explains that the notes, the annotations and the other things, are for convenient reference and do not constitute the law. Every year they enact this. And <w>there</w><w>'s</w> a good example.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, the people look at the annotations pretty carefully as guides to what that law is all about.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, if they looked at the annotations...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And if the Commission is basically involved in... in what should be in and what <w>should</w><w>n't</w> be in to explain to people what the law means, why would that be copyrightable?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> I <w>do</w><w>n't</w> think <w>they</w><w>'re</w> actually explaining what the law means. They're describing what other... this is better than Callaghan because, in Callaghan, the reporter was at least superintended by the court, right? Could have been removed by the court, was hired by the court, appointed by the court. Here, <w>they</w><w>'re</w> describing what third parties do, what courts do. To the extent <w>there</w><w>'s</w> any relationship, <w>it</w><w>'s</w> only with the legislature, and even there <w>it</w><w>'s</w> attenuated.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So you think even if the Commission actually wrote the annotations, it would still...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> That's right, because... and look what the annotations are. Under this contract, they are intended to be comprehensive. They <w>do</w><w>n't</w> say this is a good opinion, this is right, this is wrong. They just want to cover the waterfront, right or wrong, accurately describe the judicial sources that are out there, the attorney general's opinions, law reviews, other types of secondary ALRs, these types of things. It... <w>it</w><w>'s</w> finding...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Would it make a difference if... if, instead of the Commission, it were done by the legislature itself?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> You know, I think that would be a little more complicated.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> But all they do is... is describe what judges do.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> After the...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> That's it.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Oh, no, I think that would be the same.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Okay.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> I... I think you would...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Let's say it was adopted by the legislature too, and <w>let</w><w>'s</w> say we put the word "official" on it for whatever good that does market... market power-wise. Then what?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, if <w>it</w><w>'s</w> done as it is done here, which I think, if you look, for instance, in the Respondent's brief at pages 2a and 3a, the... the... <w>it</w><w>'s</w> prepared... it says the official code, I mean, is prepared by the Commission, legislative counsel, and Lexis. And then the next page over, it says the statutory portion is a true and correct copy. It's certified. What's official, what's certified as correct, is the text of the statute.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> All right.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Isn't a different...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Nice evasion, but if we could just answer the question...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> No, no, I... but I <w>do</w><w>n't</w> think...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... I'd be grateful. Let's say the legislature itself does the reviewing of all of the judicial opinions and then it collects the ones and then it enacts it and calls it official or not official. You choose. I <w>do</w><w>n't</w> care. Is that copyrightable?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Yes, if they are doing it in the same way, which is that <w>they</w><w>'re</w>...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Because <w>it</w><w>'s</w> not...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> ... <w>they</w><w>'re</w> covering the waterfront.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... in the same capacity, right? I mean, <w>that</w><w>'s</w> what it comes down to. It's not in its legislative capacity. It's in some other abstract capacity in which a legislature can act.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> That is our understanding as drawn from Banks.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Then the answer is no. Then the answer is no to his question, because the... the whole point, I thought, is that you could very abstractly, the no explains it, I do, says the bride, you <w>can</w><w>'t</w> copyright that. It's being used as a performative. It's not an expression. Now take that idea and bring it down to the legislature and making laws. Where you have some words on pieces of paper and they are performing a function that is a legislative function or a judicial function, no, <w>it</w><w>'s</w> not solely an expression; <w>it</w><w>'s</w> performing a function, and we <w>do</w><w>n't</w> allow it because to let a monopolist get ahold of that is dangerous.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, I <w>do</w><w>n't</w> think...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And that... <w>that</w><w>'s</w>... <w>that</w><w>'s</w> what I thought that the argument was as I got the entire brief.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> I'm not sure <w>there</w><w>'s</w> any disagreement. What I intended to say was that the annotations would be copyrightable; the statute would not. If it is a description of what other parties are doing, <w>there</w><w>'s</w> no particular...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I'm sorry, I <w>do</w><w>n't</w> understand. I'm... now I'm turned between my two colleagues.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, maybe this will clarify.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Let me... let me clarify... let me just get to something very simple, okay? Let's assume there are some states that have pro se guidelines. To pro se litigants, this is how you follow the law. Could they copyright those and... and charge for them and preclude others from copying them and disseminating them?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> If, for instance, this is like a... your... <w>it</w><w>'s</w>... let me draw an example. When you do... when the court adopts rules for... Federal Rules of Civil Procedure or otherwise, there are often advisory committee notes that explain kind of context. We understand...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Right. Is that copyrightable?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> We understand that... no, we understand that to be in the context of the rule-making proceeding.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right.</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> All right. Now...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So why is that different if... and I think your brief made very clear, committee reports, even on failed legislation, <w>would</w><w>n't</w> be copyrightable. Materials prepared for that process are not copyrightable unless the individual... the state <w>did</w><w>n't</w> require them or... or create them. So why is it that an official guide to an official code where the annotations merge with that code that are prepared by the state, why <w>are</w><w>n't</w> those copyrightable?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> There's a...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Why <w>are</w><w>n't</w> they like...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> There's a few things that are, I think, incorrect in the premise. One, if you look at Callaghan, you had annotations by the official court reporter, superintended by the court, combined in a single volume, still copyrightable. So the fact that <w>they</w><w>'re</w> together, not relevant. Second, when we're talking about annotations here, we're talking about a description of case 1. Case 1 says the statute means X; case 2 means the statute means Y. They reproduce both of them. They're not saying that...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Suppose that <w>were</w><w>n't</w> true.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> So is it...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> ... <w>is</w><w>n't</w> the law.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Suppose the Commission, when it supervised, part of its supervision, it looked over the annotations and it picked out a few that it thought were egregiously wrong in terms of interpreting the law. Would that make a difference?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> You know, I think it would start to be a little harder. It starts to sound a lot like... more like post-enactment legislative history, if it were done by the legislature.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> A little bit harder, but <w>that</w><w>'s</w> still copyrightable if the... if the Commission is saying no, <w>that</w><w>'s</w> an incorrect interpretation of law?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> You know, I...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> We'll take out that annotation?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> ... I think because the Commission, is, again, making an observation with respect to what these other parties do, they <w>do</w><w>n't</w> have any particular expertise, <w>it</w><w>'s</w> not the legislature itself doing this, I think...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Okay. Now I'm going to go back to Justice Gorsuch. How about the legislature?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, if the legislature did that, I think there would be a question whether that is part of the legislative process...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Isn't that...</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> ... for instance, for...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... <w>is</w><w>n't</w> that Banks? I mean, <w>is</w><w>n't</w> that the... potentially Justice Gorsuch's hypothetical, the distinction between Banks and Callaghan or not?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> Well, I think Banks...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> In other words, <w>can</w><w>'t</w> you give up that hypothetical and still win?</u>
<u loc="MR. YANG"><w>[MR. YANG]</w> I think we could give it up, but let me... let me take a step back and say we can look... start looking to the fringes of this case, but when we look at the core of what... what this is about and the way that this has arisen, the test that we think flows from Banks and Callaghan is one that takes care of the real-world consequences here.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Citron.</u>
</p>
<p id="ORAL ARGUMENT OF ERIC F. CITRON ON BEHALF OF THE RESPONDENT">
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Mr. Chief Justice, and may it please the Court: I think <w>it</w><w>'s</w> useful to remember that the question Georgia presented in this case was whether the government edicts doctrine extends to documents that lack the force of law. The answer to that question is clearly yes. The United States agrees with us that it has to be yes. That's required by the Court's decision in Banks. And it seems necessary unless legislative history, agency guidance documents, unpublished judicial decisions are going to be subject to copyright. Now Georgia <w>has</w><w>n't</w> proposed an alternative test, but we've proposed a test that we've drawn from the language in this Court's decisions, particularly Wheaton as it was understood by Justice Story and Callaghan, which adopted that understanding, and it asks two straightforward questions: Is this a legal work and is it published under the authority of the state? If it is, then it <w>can</w><w>'t</w> be copyrighted, and that makes sense because states <w>do</w><w>n't</w> publish authentic state legal works for the purposes of making money or maximizing profit. They publish them so that people will understand their legal obligations. And so you do not need the copyright incentive to ensure that these works get made.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Why is it different if the state... or is it? The state hires an official historian. The historian's job is to write the history of the State of Georgia. After a committee reads it and says yes, then they stamp it official. They have a copyright contract, so they get the... the state gets the copyright. Is it copyrightable?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I think that is copyrightable because...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Because? Why is that copyrightable and yet a comment made by the professor's cousin, who happens to teach in law school, is not copyrightable?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Uh...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> The comment being on the state of the law, the comment being a summary of the cases, the comment being the... the six things listed on page, whatever it was, page 497, the seven things. How is that different?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I guess I want to answer both parts of the question, but I'm going to take the second part first. I <w>do</w><w>n't</w> think a law professor speaking in the voice of the state or that something a law professor publishes is published under the authority of the state, so that would be copyrightable under our test. Nor do I think that an official state history is a legal work, and so that <w>would</w><w>n't</w> be captured by our test either. And there is a difference because, when the state speaks... when you speak in the state's voice with respect to a legal work, <w>you</w><w>'re</w> asserting a kind of authority. That has value that it <w>does</w><w>n't</w> have when the state publishes its poetry.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I understand, Mr. Citron, that the SG is essentially saying, well, for these annotations, the state is not telling you what it thinks about the law. The state is doing no more and no less than what Westlaw does. So the state's view of the law is just like Westlaw's view of the law. Why should we treat the two differently?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well, I... I <w>do</w><w>n't</w> think <w>they</w><w>'re</w> the same for two reasons. One is these annotations are produced in the name of and the voice of the Code Revision Commission, and the Code Revision Commission is not a non-entity. Code Revision Commissions are responsible for assembling the text of the statutes and the other things that go into the official code. And, look, in the United States context, 27 of the titles of the United States Code are simply the product of a Code Revision Commission. They <w>are</w><w>n't</w> enacted as texts. So these Code Revision Commissions, they do exercise a legislative function. They assemble the text of the statutes.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> How is that different from the court reporter?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Because the court reporter <w>does</w><w>n't</w>... <w>is</w><w>n't</w> responsible for the text of the opinions at all, right? They're not allowed to move around the text and say, well, this would be clearer...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> They're responsible for the text of what they... they produce as the summary.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> What they add they are responsible for, but the court is not responsible for it, and <w>that</w><w>'s</w> the big difference. Being the official reporter <w>does</w><w>n't</w> prevent you from adding whatever you want to the report. If Henry Wheaton had added things the Court <w>did</w><w>n't</w> like to the 1815 term report, <w>they</w><w>'re</w> not required to pay him for the 1816 term, but they <w>can</w><w>'t</w> pull the 1815 term report off the shelves. It's up to him what goes in that book. That's the complete opposite of what happens with Lexis and the OCGA. Lexis <w>can</w><w>'t</w> add one thing to the OCGA outside the state's authority. The hypothetical facts you pose, those are the actual facts of this case. The undisputed material facts are that all the materials in the OCGA are finalized under the direct supervision of the Code Revision Commission.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And what's the... what's the difference between the Commission and the... and the reporter? I'm sorry.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> The difference between the Commission and the reporter?</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Yeah, the court reporter.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> The Commission...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> In other words, how do you deal with Callaghan and Wheaton, I guess, and Howell, if we're going to bring in the Sixth Circuit decision in Howell?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I think the difference is that the classic judicial reporter, particularly in the 19th century, which is what we should try to keep in mind, spoke in their own voice when they added materials to the Court's opinion. The Code Revision Commission does not speak in its own voice. It's not like Westlaw, something you read on the Internet. It's speaking in the state's voice when it puts the annotations in. The annotations may not be very valuable. They might not be worth a lot in court, just like legislative history in front of many judges is not worth a lot in court. But <w>it</w><w>'s</w> still an authentic state legal document. It still comes through in the voice of the state. And <w>that</w><w>'s</w> the difference.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Does this amount to anything other than the label <w>that</w><w>'s</w> put on this volume? Suppose they put... they made it clear in labeling the volume that the law itself is the official... the code itself is the law of the State of Georgia, all of the rest is not official.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Uh...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Would that take care of the problem?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I <w>do</w><w>n't</w> think it would take care of the problem in the following sense. If the state is the one that actually puts together the annotations, and <w>it</w><w>'s</w> known that these are the state's annotations, labeling part of it official and part of it unofficial is not going to do the trick. But that does go a long way. I think our main objection is when you confer officiality on these documents and you speak in the state's voice, <w>that</w><w>'s</w> the thing you <w>can</w><w>'t</w> copyright. If they wanted to have the Code of Georgia with annotations by Lexis, they could certainly have that.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Mr. Citron, in both Wheaton and in Callaghan, both opinion mentioned that the cover pages said that these reports were by the individuals, not by the state.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yeah.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And so the state <w>was</w><w>n't</w> claiming ownership or title to these annotations, correct?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> That's right.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That's different from here, where neither Lexis nor... am I wrong? I <w>do</w><w>n't</w> think the annotation tells us who prepared the annotations, or does it? I... I <w>did</w><w>n't</w> look specifically.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I mean, the reason the Eleventh Circuit got confused about whether these comments were... who they were authored by and whether they were distinguishable from the other kinds of annotations in which they claim copyright is there <w>is</w><w>n't</w> anything on the face of the annotations to tell you who wrote them or <w>who</w><w>'s</w> responsible for them.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. Could you please take the government's test? You articulate it, and you tell me why their conclusion is wrong under their test.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I know you <w>do</w><w>n't</w> accept their test, so <w>do</w><w>n't</w> fight the hypothetical.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Okay.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Okay?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yes.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Accept the hypothetical.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yeah.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And tell me why <w>they</w><w>'re</w> wrong under their... their test.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I... I think the simplest understanding is the following. The Code Revision Commission is in two critical respects like the legislature or exercising a legislative or law-making function. First, it discharges its duties entirely for the behest... at the behest of and for the benefit of the legislature, and the Georgia Supreme Court has told us that this is an exercise of the legislative authority for purposes of Georgia constitutional law. So trying to draw some line between the Code Revision Commission and the legislature would be, I think, inauthentic. On top of that, Code Revision Commissions are exercising a legislative function. They assemble the text of the statutes. If you were to adopt a rule that the Code Revision Commission does not speak for the state, in states like New York, where the statutory text is put together by a Code Revision Commission, you could copyright the statutory text itself because those statutory texts are just evidence of the law. They're not binding or the force of law vis-α-vis the statutes at large or the like. And but for Section 105, Title 42 of the U.S. Code could be copyrighted too.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> What does the...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Mr. Citron, may I ask you a basic question of... of what matters here? One thing is that the annotations have the official state imprimatur, and you say that <w>that</w><w>'s</w> what matters. But why instead <w>should</w><w>n't</w> it matter that these annotations are in no sense the law, <w>they</w><w>'re</w> just useful information on how the law has been interpreted and applied by others?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I think <w>it</w><w>'s</w> what you mean by "in no sense the law," which is, I think, a complicated concept. When it bears the state's imprimatur, it is the law in some sense. It may not be worth very much. The state can say: Look, this is just informational, just the way the IRS when it puts out an FAQ about how to file your tax returns says: Look, this is just informational. A court might take a different view of it. But, when the state is telling you this is a good summary of the statute... of... of the case, <w>you</w><w>'re</w> going to treat that differently. And <w>it</w><w>'s</w> not for nothing.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Well, <w>they</w><w>'re</w> not saying <w>it</w><w>'s</w> a good summary or a bad summary. They may take comments from both sides, one interpreting it one way, one interpreting another way. They're... <w>they</w><w>'re</w> useful aids to research, but you say that that <w>does</w><w>n't</w> matter, that... that these... these are information, just information about how the law has been interpreted and applied without making any judgment whether those are correct or incorrect?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well, the best I can say about it is this. You know, my colleague said, you know, I think the comments, which are often used by courts as an authentic source of law, probably <w>should</w><w>n't</w> be copyrighted because they are offered as a intended gloss on the code. In their complaint, this is what they say the judicial annotations are there for: "They must be carefully crafted by Lexis in order to illustrate and interpret the code sections of the OCGA." That's what <w>they</w><w>'re</w> there for. The state puts them there to illustrate and help interpret the code for its users. They <w>are</w><w>n't</w> the law. You <w>can</w><w>'t</w> cite them in the sense of saying, I know the statute says this, but look at this annotation here. Just the way the notes that are at the end of the Federal Rules of Civil Procedure <w>are</w><w>n't</w> going to overrule the text of the rule, but they do count for something because they come in the state's voice.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> That's... <w>that</w><w>'s</w>, I think, the question. I mean, I agree, <w>you</w><w>'ve</w> clarified, everybody to me. I mean, the question is: What function does this particular set of words play in the law? And if we look at the precedent, back where Justice Ginsburg was, <w>it</w><w>'s</w> hard for me to see that it plays much more of a precedent than Wheaton... I mean much more of a role than Wheaton's annotations, and I can think of cases where a lot of people would say in respect to Westlaw, in respect to Lexis, and probably here, ah, yes, <w>that</w><w>'s</w> what they say, but go read the case, my friend, and it <w>is</w><w>n't</w> as good a summary as you think. All right? So what you'd have to show is that the official Westlaw actually plays a larger role in the law, in a law-making function, than does Westlaw. I doubt that <w>there</w><w>'s</w> something here that shows that, but maybe there is.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I'll give you my best shot, okay? There are no cases in Georgia that have ever cited West's unofficial annotated code of Georgia because <w>it</w><w>'s</w> not official and <w>it</w><w>'s</w> not something you would bring to court and say: Well, look, an editor of Westlaw tells us that this is... that this case is relevant or that this statute became effective on this date. There are lots of cases that cite the annotations to the OCGA, as such, in Georgia for lots of different kinds of propositions.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But I think one question that is... I think Justice Ginsburg asked it, is... is... is some of your examples, they are government documents with a point of view, and... and when you think about one of these annotation books, it <w>does</w><w>n't</w> look like it has a point of view. It looks like there are annotations of cases on both sides of an issue. And... and as long as we <w>do</w><w>n't</w> have any sense that the state is editing in order to create a point of view, you know, why <w>does</w><w>n't</w> that make a difference?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> So <w>that</w><w>'s</w> true of the judicial annotations because the judicial annotations are themselves summaries of the cases. I would say they have a point of view about the cases. They will tell you what they think is important about those cases. But they <w>do</w><w>n't</w> purport to comment this... this was a well-decided case, the reasoning here is poor. I will say the State wants to focus on the judicial annotations because <w>it</w><w>'s</w> hard to imagine using them this way. You should really focus on the editor's notes, which are also an annotation over which they are asserting copyright in this case. I want to bracket, they claim copyright over everything. In this case, they decided not to assert against some of the works, including basically everything in the code. They claim it. But the editor's notes...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So what do you mean by "the editor's notes"?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> The editor's notes are notes that appear in the OCGA that describe things like when this code provision becomes effective, whether it was the product of a veto, override, or how it was enacted, and it can be extremely important to deciding a case. So one of the cases that we point to where this... an editor's note was cited is cited for the proposition that the... the state changed the rule for when a breathalyzer test was admissible, and it did so retroactively to all cases that were pending on... at the time that it was signed. The state cites... the court cites the editor's note for that proposition, and <w>that</w><w>'s</w> the reason this person is acquitted in that case.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Is there... is... is there any other source for that proposition?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Sure, you could go back to the statute at large, just like you could for all the non-positive law titles of the U.S. Code.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So, if there were an award given out by the Law Review Commission every year for the best treatise in a particular area, in other words, we think this is, you know, the best treatise, and as a result, <w>it</w><w>'s</w> cited more frequently and more authoritatively than other treatises, does that change the copyright status?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I <w>do</w><w>n't</w> think so because I <w>do</w><w>n't</w> think that that treatise is still speaking with the authority of the state. You know, they can say this is a good treatise, in general, you should look at it, but none of the propositions there have been adopted. And the treatise author certainly <w>does</w><w>n't</w> write with authority. Writing Miller...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> But, I mean, the fact that the courts are going to cite that treatise and, you know, with some... probably more frequency than... than others, so the fact that you have this editor's note that tells you <w>it</w><w>'s</w> retroactive, <w>that</w><w>'s</w> not what makes it retroactive. The fact is <w>there</w><w>'s</w> something else that the... that editor is looking at, and that is the official source that makes it retroactive. The fact that they cite the particular notes for ease of reference or... or because that editor has developed a reputation as being particularly good, seems to me <w>does</w><w>n't</w> transform the nature of those notes.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> No, I... I... I will admit to you at the end of the day that the statute at large is going to control over the editor's note. The editor's note <w>does</w><w>n't</w> have the force of law as such. But that <w>can</w><w>'t</w> be the rule. It would be wildly over... under-inclusive to exclude all the things that <w>are</w><w>n't</w> the... the best authority at the end of the day. Like I said, all the non-positive law titles of the U.S. Code are like that. They are only prima facie evidence of the law and you have to point back to the statute at large, if <w>there</w><w>'s</w> a dispute, to say what the law is. But, if <w>that</w><w>'s</w> the rule, like I said, the actual statutory text in the official codes of most of the states can now be copyrighted because <w>that</w><w>'s</w> what Code Revision Commissions do. They put out these non-positive law titles that are prima facie evidence of the law. They still have a legal effect. They just <w>are</w><w>n't</w> the controlling authority.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> There's a lot of...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> You gave us a...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Go ahead.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> You gave us a two-part test. The first part is whether <w>it</w><w>'s</w> a legal work. What does that mean?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> It's just a work... a legal work is going to do one of two things. It's going to purport to state what the law is or interpret it, or <w>it</w><w>'s</w> going to be a part of the process of making it. And <w>it</w><w>'s</w> not intended to be, you know, a complicated doctrine. I think <w>it</w><w>'s</w> pretty easy to look at a work and determine whether <w>it</w><w>'s</w> a legal work or not.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> There's a lot of debate about what the precedents mean here. Should we interpret them in the direction of the text of the Copyright Act, which clearly says states can get copyright protection for annotations?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I mean, states can get copyright protection for annotations only insofar as they meet the authorship requirement of the Act. The authorship requirement was given a gloss in Banks. Banks says it got that gloss in Wheaton under the Marshall court and Congress has not seen fit...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> What...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... to change it.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> What about Howell? Do you accept Howell as correctly decided, the Sixth Circuit decision by Justice Harlan?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yeah, we... we accept Howell as correctly decided and we think <w>it</w><w>'s</w> a good case for us.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Explain that.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Okay.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Because it <w>does</w><w>n't</w> seem that way to me, but go ahead.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I'll give it my best shot. So <w>it</w><w>'s</w> really important to focus on the order of operations in Howell and how <w>it</w><w>'s</w> different from what happens here. So, in Howell, Howell compiles, acting on his own, a compilation of the Michigan statutes together with his own annotations. After he does that, Michigan passes a statute authenticating just the... the statutory portion of his work, and it says, you can treat that statutory portion as though it were published under the authority of the state. And that causes Justice Harlan to write an opinion that says, even though Howell did that work on his own, you can cut and paste that text directly out of his book in order to republish a compilation of the laws because no one can own the laws. The other stuff, which Howell had produced first on his own and the state had never authenticated, remained Howell's property. The exact opposite happens with the OCGA. Lexis produces the annotation for and at the commission of a state commission. The state commission exercises supervisory authority over what those annotations say. The legislature then requires that those annotations be merged into the official state document, and then the whole document is published under the authority of the State of Georgia. If <w>that</w><w>'s</w> what happened in Howell, I <w>do</w><w>n't</w> think you could copyright the annotations.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The merger <w>can</w><w>'t</w> make the difference, though, right?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> No, I think the merger does make a difference because that is the legislature deciding that these annotations will be part of the code and then publishing that code under the state's authority. It could do the opposite. It could say we are only... if it had the authentication <w>that</w><w>'s</w> in the addendum saying the statutory text is authentic, you can treat it as good for cite checking, <w>that</w><w>'s</w> fine. That's not making the whole volume official. The problem is publishing the whole volume under the authority of the state, including the annotations, and then saying, well, actually, these annotations <w>are</w><w>n't</w> special, <w>they</w><w>'re</w> not distinguishable from what Westlaw does or anyone else.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But, if you cited the annotations as binding law, that would be wrong.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well, two... two things about that. One is I...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Or even... or even instructive. It would be wrong.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I <w>do</w><w>n't</w> think <w>that</w><w>'s</w> right. If you cited the judicial annotation in court, you said I found this in the OCGA, but... and I <w>have</w><w>n't</w> checked the case, but... but this is what the case says according to the OCGA, I'm not sure each court would treat that as incorrect. That's a... that seems to be a plausible...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The court would 5 do...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... way to use...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Correct me if I'm wrong, the court would do its own independent research to determine the weight to be afforded that authority.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Right. But it does that with lots of things that we all agree are the law for purposes of this copyright rule. Just like when a agency tells you what that... what one of its documents means, <w>you</w><w>'re</w> going to construe it, <w>you</w><w>'re</w> going to use your own judicial authority to attempt to determine what it means before accepting the agency's determination, but it still could be a good starting place. It <w>would</w><w>n't</w> be the same if it was just something you read on the Internet.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Can I ask you a question from a different direction? Which is the states' amicus brief...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Uh-huh.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... which is a cross-section of states, makes a very strong argument that this is going to create problems in terms of incentives for creating these annotations in the first place, and so the net result of your position, if it wins, so the states claim, is that there will be fewer of these annotations. Can you respond to that?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yeah, happy to. If the proposition, which has to be Georgia's view, is that the annotations are just the same as private annotations, there is at least one, and usually two, privately annotated legal codes available for every state in the union. And that includes states that <w>do</w><w>n't</w> copyright anything, and it includes states that make an annotated code available on the Internet for free themselves. So the incentive to create these private works is not going to be affected at all...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So the states are just...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... by the differences in this case.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... wrong about that? I mean, <w>is</w><w>n't</w> there a cost/price issue <w>that</w><w>'s</w> involved? Or why are the states saying that if <w>they</w><w>'re</w>... they have nothing to fear?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I... I <w>do</w><w>n't</w> think the states have anything to fear. What they want is the official versions to exist. The versions bear the states' imprimatur. They get to supervise what goes in them. That's the source of the problem with the copyrighting of it. But the unofficial... and the annotations themselves will exist without regard to whether or not this kind of...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, I thought that...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... copyright issue is...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... Mr. Johnson told me that they would be more expensive. Do you dispute that?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I do dispute that in two respects. One is the actual useful versions of these codes are already plenty expensive. There's a lot of discussion of the cost for a printed volume, but online access, which is what really most practitioners need to use, most people want to use, <w>it</w><w>'s</w> much more expensive than the $400. But, even accepting that the price is lower, I think that favors us, because what's going on there is an exchange of... <w>you</w><w>'re</w> going to accept a price cap in exchange for the right to publish this officially, not for publishing the annotations, because Westlaw makes the annotations and is allowed to charge six times as much. Lexis <w>is</w><w>n't</w> going to agree to do the annotation work in exchange for a price cap. What it wants for the price cap is the right to publish it officially. I hope... I hope that makes sense. There's a good description of this in a brief from some former publishing officials that explain, you know, if... if this is what's going on, Lexis is essentially being hoodwinked.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> What's your best... what is your best evidence that the state actually edits what Lexis does or supervises the substance of what Lexis does?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well, so <w>there</w><w>'s</w> a couple of things in the publication manual that set forth how Lexis is supposed to communicate with the state, and it requires sending them memos with bracketing around what the new material is, Xeroxing the pages on which any ALR notes or opinions of the attorney general might be deleted and pointing them out for state approval. The publication manual also highlights situations in which the state is likely to tell them what kind of editor's note to create surrounding complicated amendments or the like. So the Commission is involved, but we <w>do</w><w>n't</w> have... because the case was decided on summary judgment, we just <w>do</w><w>n't</w> have a record of how often this... the Commission actually...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> The... I just thought of a possible... this should shed a lot of light in a number of areas. One of those areas is only applicable to some judges. Some judges do look at legislative history. So, for those who do look at legislative history, a committee report has significance. All right? Now take the same words and imagine that a senator, long afterwards, came into court and testified <w>that</w><w>'s</w> what we meant. Would we give that senator weight? No. Or suppose that the committee met after it was passed. That's called post-enactment legislative history. Does that have some weight? Usually very little. And <w>that</w><w>'s</w> because that <w>is</w><w>n't</w> normally their job. That <w>is</w><w>n't</w> normally part of the lawmaking process. Thinking of that analogy, it seems to me that your case lies somewhere between the official post-enactment legislative history and, over here, the senator walking into the courtroom and just saying, <w>that</w><w>'s</w> what I meant. Now is that fair? Because I <w>do</w><w>n't</w> think you like me thinking that way.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Oh, I'm comfortable...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> You are?</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... with you thinking that way. And I think that <w>that</w><w>'s</w> one of the main points I've been trying to make here. There is a difference between being worth very little but nonetheless being official, authentic state legal resource, and being worth nothing because <w>you</w><w>'re</w> not an authentic state legal resource. It's not even the senator walking in and testifying, right? What we need you to compare this to is somebody from the New York Times walking in and testifying that this is what people had in mind when they enacted this statute. That's not good for anything because <w>it</w><w>'s</w> not a state legal resource. It <w>does</w><w>n't</w> speak in the... in the voice of the state. And you can disagree about how much weight to give something that is nonetheless an authentic state legal resource, but <w>that</w><w>'s</w> the thing that makes the difference. And that, again, is the difference between these cases and Howell and Wheaton. Howell and Wheaton were allowed to add whatever they wanted.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Presumably, a certified copy of the committee report would not be post hoc.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Whether... I think the point I was trying to make is post hoc or not might affect how much weight you want to give it, but the fact that <w>it</w><w>'s</w> a certified committee report is the thing that really makes the difference.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Now I... I understand Justice Ginsburg's question because I do think <w>there</w><w>'s</w>... the comments troubled me, taking the government and Petitioners' side, the editorial notes trouble me, but most of the references in the notes are just to judicial decisions and/or general research matters. If it were limited just to that, is that... why <w>can</w><w>'t</w> the state...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I... I'll just give you...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... this is what...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Yeah. I'll try to give you the best example we could find. In one of the state cases that cites a judicial annotation, what happened was a lawyer from Florida <w>did</w><w>n't</w> file a response to a motion for summary judgment, because he looked up the statute, and the statute says <w>there</w><w>'s</w> going to be a hearing in 30 days; you can file something up until the hearing. Turns out that <w>there</w><w>'s</w> a rule that says, no, you have to file a response or else it might be deemed forfeited. And the court is deciding whether his failure to file a response is excusable neglect. And the court says: Well, if you look at the annotations to this statute, it discloses the existence of Rule 6.3, which is not inconsistent with the statute. And this is what happens when you have a state legal manual like the OCGA that has official annotations in it. Courts will find ways and regular people will find ways to attribute importance to things that are difficult to use for judicial purposes but sometimes will. And the reason they do that is because this is a legal work that speaks in the voice of the state and not just the bare work of someone who happens to be a legal editor at Westlaw or something like that.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But that would be a mistake, right? I mean, <w>is</w><w>n't</w> that... it would be a mistake to attribute the significance to it.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I <w>do</w><w>n't</w> know if it would be a mistake or not.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Under... under state law, it would be a mistake.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I mean, what... what they did was attribute significance to the fact that you could find it there in the manual, when they were trying to figure out...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But, under state law...</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> ... what would be...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... <w>is</w><w>n't</w> that... <w>that</w><w>'s</w> wrong.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> Well, no, the state law would say that it would be wrong in construing the meaning of that statute, but it <w>is</w><w>n't</w> necessarily wrong for figuring out what's excusable neglect, right? Whether <w>it</w><w>'s</w> good lawyering or bad lawyering, not to look at the annotations in the OCGA <w>is</w><w>n't</w> governed by the statute. The statute <w>does</w><w>n't</w> say... Section 1-1-1 <w>does</w><w>n't</w> say anything about that.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, but it would also be pertinent to the question of excusable neglect to look at what, you know, all the treatises said. I mean, if I'm writing an opinion about whether the lawyer should have known that, I would say every... all the treatises about Georgia law, you know, highlight the fact that <w>you</w><w>'ve</w> got to file a response.</u>
<u loc="MR. CITRON"><w>[MR. CITRON]</w> I... I think you and I may have different instincts about that. I think it would be more appropriate for a judge to say, well, look, in the official state legal code, there are annotations that point to the rule that you neglected. And I think <w>that</w><w>'s</w> more persuasive. That's different than saying, well, if you happen to look at the uncodification that Westlaw does, <w>there</w><w>'s</w> an indication that that rule exists. That's the difference.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Three minutes, Mr. Johnson.</u>
</p>
<p id="REBUTTAL ARGUMENT OF JOSHUA S. JOHNSON ON BEHALF OF THE PETITIONERS">
<u loc="MR. JOHNSON"><w>[MR. JOHNSON]</w> I want to start briefly by talking about the different portions of the OCGA, things like editors' notes. We talked in our brief about why the editors' notes should be copyrightable, why the Dominiak case that my friend on the other side just was describing <w>does</w><w>n't</w> undermine our copyright claim. But I think the crucial point on this is that PRO copied the entirety of the OCGA, including the judicial decision summaries that I think are clearly copyrightable under Wheaton and Callaghan. So PRO has to run the table on all portions of the OCGA to get an affirmance here, and I just <w>do</w><w>n't</w> think that they can. The PRO's main argument seems to be that the fact that the OCGA is official means that it cannot be copyrightable. And I just <w>do</w><w>n't</w> think that <w>that</w><w>'s</w> consistent with history or this Court's precedents. Again, going back to Wheaton and Callaghan, you had official court reporters holding copyright in annotations. And given that those were government officials, I just <w>do</w><w>n't</w> think that it can make a difference here that the state is the one holding the copyright. I think that this case is the legislative analogue of Wheaton and Callaghan. But I think <w>it</w><w>'s</w> also important to look at the history of the Copyright Act. So the Copyright Office in the 1959 study and 1961 report interpreted the 19th century precedents we're talking about here as holding that states could hold copyright in annotations by state government employees, and then Congress passed the modern Copyright Act without in any way overriding that understanding or expanding the government edicts doctrine. Under that understanding, we win here. And then the final point that I want to touch on is how affirming the decision below would be very disruptive for states. So about a third of states have the same regime as Georgia. They claim copyright in annotations to an annotated official code by commercial publishers. So affirming the decision below would blow up those regimes. There are at least two additional states that claim copyright in annotations by state government employees and five other states where the commercial publisher holds the copyright in the annotated official code. Those regimes would probably also fall if the court's decision below was affirmed. So I think that statutory text and precedent compel a decision for Georgia here. Any innovations on the government edicts doctrine should come from Congress, not the courts. The Court should reverse.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u>
</p>
</text>