CODE REVISION COM’N v. PUBLIC RESOURCE.ORG, INC. 1229...CODE REVISION COM’N v. PUBLIC...

1229CODE REVISION COM’N v. PUBLIC RESOURCE.ORG, INC.Cite as 906 F.3d 1229 (11th Cir. 2018)

award, including restitution previouslypaid.

We understand this to mean a relator isentitled to a share of the forfeited proper-ty to the extent the qui tam defendant candeduct any forfeiture from the qui tamaward. It appears the government gavethe Ninth Circuit the same assurance inVan Dyck. See 866 F.3d at 1135 n.3. Weexpect the government will honor it.

V. CONCLUSION

The District Court properly denied Ms.Carver’s motion to intervene. Under thisCircuit’s ‘‘anomalous rule,’’ our jurisdiction‘‘evaporates’’ with this conclusion ‘‘becausethe proper denial of leave to intervene isnot a final decision.’’ E. Airlines, Inc., 736F.2d at 637. We therefore DISMISS thisappeal for lack of jurisdiction.

,

CODE REVISION COMMISSION, FORthe Benefit of and on behalf of GEN-ERAL ASSEMBLY OF GEORGIA,State of Georgia, Plaintiffs - CounterDefendant - Appellees,

v.

PUBLIC.RESOURCE.ORG,INC., Defendant - Counter

Claimant - Appellant.

No. 17-11589

United States Court of Appeals,Eleventh Circuit.

(October 19, 2018)Background: Code revision commission,acting on behalf of the Georgia GeneralAssembly and the State of Georgia,brought action against non-profit organi-zation with mission of improving publicaccess to legal materials, alleging that or-ganization’s publication of annotated com-pilation of Georgia statutes infringed on

State’s copyright in the work. The UnitedStates District Court for the NorthernDistrict of Georgia, No. 1:15-cv-02594-RWS, Richard W. Story, J., 244F.Supp.3d 1350, granted commission’s mo-tion for partial summary judgment. Or-ganization appealed.

Holding: The Court of Appeals, Marcus,Circuit Judge, held that annotations edito-rially created for the annotated compila-tion of Georgia statutes, while not havingthe force of law, were sufficiently law-likeso as to be regarded as sovereign workconstructively authored by the People, andthus were not copyrightable.

Reversed in part, vacated in part, andremanded.

1. Copyrights and Intellectual PropertyO14

No valid copyright interest can be as-serted in any part of the annotated compi-lation of Georgia statutes. Ga. Code Ann.§ 1-1-1 et seq.

2. Federal Courts O3604(4)The Court of Appeals reviews the

grant of summary judgment de novo, ap-plying the same legal standards whichbound the district court.

3. Federal Courts O3675In reviewing a grant of summary

judgment, the Court of Appeals considersthe evidence and all factual inferencestherefrom in the light most favorable tothe party opposing the motion.

4. Federal Civil Procedure O2470Summary judgment is proper only

where there is no genuine issue of materialfact.

5. Federal Civil Procedure O2470.1On a summary judgment motion, a

genuine issue of material fact exists wherethe dispute is over facts that might affect

1230 906 FEDERAL REPORTER, 3d SERIES

the outcome of the suit under the govern-ing law and where the evidence is suchthat a reasonable jury could return a ver-dict for the nonmoving party.

6. Federal Courts O3615The Court of Appeals reviews a dis-

trict court’s decision to grant equitablerelief for abuse of discretion, consideringquestions of law de novo and findings offact for clear error.


In order to establish a prima faciecase of copyright infringement, a plaintiffmust show that (1) it owns a valid copy-right in the work and (2) defendants cop-ied protected elements from the work. 17U.S.C.A. § 101 et seq.

8. Copyrights and Intellectual PropertyO83(1)

Once a plaintiff has produced a validcopyright registration, the burden shifts tothe defendant to establish that the copy-right is invalid in a copyright infringementaction. 17 U.S.C.A. § 410(c).

9. Copyrights and Intellectual PropertyO41(1), 50.16

Copyright inheres in authorship andexists whether or not it is ever registered.17 U.S.C.A. § 201(a).


Any work of which the People are theconstructive authors is intrinsically publicdomain material and is freely accessible toall so that no valid copyright can ever beheld in it.


The People are the owners of theworks created by their legislative and judi-cial agents, and thus such works are un-copyrightable.


Whether or not a work is subject tothe rule that government edicts cannot becopyrighted is dependent on whether thework is the law, or sufficiently like the law,so as to be deemed the product of thedirect exercise of sovereign authority, andtherefore attributable to the constructiveauthorship of the People.


Annotations editorially created for theannotated compilation of Georgia statutes,while not having the force of law, weresufficiently law-like so as to be regarded assovereign work constructively authored bythe People, and thus were not copyrighta-ble; code revision commission, an arm ofthe Georgia General Assembly, exerciseddirect, authoritative control over creationof annotations at every stage of their prep-aration, annotations had authoritativeweight in explicating and establishing themeaning and effect of Georgia’s laws, andprocedures by which annotations were in-corporated had the hallmarks of legislativeprocess, namely bicameralism and present-ment. 17 U.S.C.A. § 101 et seq; Ga. CodeAnn. §§ 1-1-1, 1-1-7, 28-9-2, 28-9-4.

14. Public Employment O903

It is literally impossible, in view of thecomplexities of the modern legislative pro-cess, for legislators to perform their legis-lative tasks without the help of aides andassistants; the day-to-day work of suchaides is so critical to the legislators’ per-formance that they must be treated as thelatter’s alter egos, such that legislative im-munity applies not only to the legislator,but also to his aides insofar as the conductof the latter would be a protected legisla-tive act if performed by the legislator him-self.


15. Public Employment O903The test for applicability of the deriva-

tive legislative immunity for a legislator’saides is whether the legislator, counsel, oraide was engaged within a legitimatesphere of legislative activity.

16. Copyrights and Intellectual PropertyO10.3

The work of any federal employee,made in his capacity as a government em-ployee, is uncopyrightable. 17 U.S.C.A.§§ 101, 105.


Some works made by state employees,that would be uncopyrightable if made bya federal employee, are nevertheless copy-rightable. 17 U.S.C.A. §§ 101, 105.


The mere fact that a work was creat-ed by a state-paid employee in his capacityas an employee is not enough to triggerthe rule that government edicts cannot becopyrighted; something more is needed,specifically, the government official mustbe entrusted with unique powers beyondthose possessed by the typical governmentemployee, such as the power to pronounceofficial interpretations of the law.


The nature and authoritativeness of awork, like the identity of the author, arematerial in determining whether the workis attributable to the constructive author-ship of the People, such that the work isuncopyrightable.

Appeal from the United States DistrictCourt for the Northern District of Geor-gia, D.C. Docket No. 1:15-cv-02594-RWS

Anthony B. Askew, Lisa Pavento, War-ren James Thomas, Meunier Carlin &Curfman, LLC, Atlanta, GA, for Plain-tiffs - Appellees.

Elizabeth Hannah Rader, Sarah ParkerLaFantano, Jason Demian Rosenberg, Al-ston & Bird, LLP, Atlanta, GA, for Defen-dant - Appellant.

Esha Bhandari, ACLU Foundation, NewYork, NY, for Amicus Curiae AMERICANCIVIL LIBERTIES UNION FOUNDA-TION.

Esha Bhandari, Vera Eidelman, ACLUFoundation, New York, NY, for AmicusCuriae, AMERICAN CIVIL LIBERTIESUNION OF GEORGIA.

Charles Duan, R. Street Institute,Washington, DC, for Amici Curiae PUB-LIC KNOWLEDGE, THE AMERICANLIBRARY ASSOCIATION, THE ASSO-CIATION OF RESEARCH LIBRARIES,THE INSTITUTE OF INTELLECTUALPROPERTY AND SOCIAL JUSTICE,THE ORGANIZATION FOR TRANS-FORMATIVE WORKS.

Phillip R. Malone, Jeffrey TheodorePearlman, Stanford Law School, Stanford,CA, Erica Sollazzo, Juelsgaard IP & Inno-vation Clinic, Stanford Law School, STAN-FORD, CA, for Amicus Curiae NEXTGENERATION LEGAL RESEARCHPLATFORMS, THE OPENGOV FOUN-DATION, RAVEL, CASETEXT, FREELAW PROJECT, JUDICATA.

Before MARCUS and HULL, CircuitJudges, and BUCKLEW,* District Judge.

MARCUS, Circuit Judge:

[1] Today, we are presented with thequestion of whether the annotations con-tained in the Official Code of Georgia An-

* Honorable Susan C. Bucklew, United StatesDistrict Judge for the Middle District of Flori-

da, sitting by designation.


notated (OCGA), authored by the GeorgiaGeneral Assembly and made an inextrica-ble part of the official codification of Geor-gia’s laws, may be copyrighted by theState of Georgia. Answering this questionmeans confronting profound and difficultissues about the nature of law in our soci-ety and the rights of citizens to have unfet-tered access to the legal edicts that governtheir lives. After a thorough review of thelaw, and an examination of the annotations,we conclude that no valid copyright inter-est can be asserted in any part of theOCGA.

From the earliest day of the Republic,under federal copyright law, copyright in-terests have vested in the author of thework. Authorship, therefore, is central tomany questions that arise under the Copy-right Act, 17 U.S.C. § 101 et seq. Thiscase is no exception. In most states the‘‘official’’ code is comprised of statutorytext alone, and all agree that a state’scodification cannot be copyrighted becausethe authorship is ultimately attributable tothe People. Conversely, all agree that an-notations created by a private party gener-ally can be copyrighted because the anno-tations are an original work created by aprivate publisher. But the annotations inthe OCGA are not exactly like either ofthese two types of works. Rather, they fallsomewhere in between -- their legal effectand ultimate authorship more indetermi-nate. To resolve this question, then, wereason by analogy, and drill down on thecore attributes that make the OCGA anno-tations what they are -- namely an exerciseof sovereign power.

The general rule that legislative codifica-tions are uncopyrightable derives from anunderstanding of the nature of law and thebasic idea that the People, as the reservoirof all sovereignty, are the source of ourlaw. For purposes of the Copyright Act,this means that the People are the con-structive authors of those official legal pro-

mulgations of government that representan exercise of sovereign authority. Andbecause they are the authors, the Peopleare the owners of these works, meaningthat the works are intrinsically public do-main material and, therefore, uncopyright-able.

That the law itself, whether it takes theform of a legislative enactment or of ajudicial opinion, is subject to the rule isclear and not contested. This is becausethese works represent the quintessentialexercise of sovereign power. When a legis-lature enacts a law, or a court writes anopinion rendering an official interpretationof the law in a case or controversy, theyare undisputedly speaking on behalf of thePeople, who are properly regarded as theauthor of the work. The task we face todayis whether we should similarly treat Geor-gia’s entire official code, which expresslymerges its statutes and their official anno-tations, as the sovereign expression of thePeople by their legislature, as public do-main material.

To navigate the ambiguities surroundinghow to characterize this work, we resort tofirst principles. Because our ultimate in-quiry is whether a work is authored by thePeople, meaning whether it represents anarticulation of the sovereign will, our anal-ysis is guided by a consideration of thosecharacteristics that are the hallmarks oflaw. In particular, we rely on the identityof the public officials who created thework, the authoritativeness of the work,and the process by which the work wascreated. These are critical markers. Whereall three point in the direction that a workwas made in the exercise of sovereignpower -- which is to say where the officialwho created the work is entrusted withdelegated sovereign authority, where thework carries authoritative weight, andwhere the work was created through theprocedural channels in which sovereign


power ordinarily flows -- it follows that thework would be attributable to the con-structive authorship of the People, andtherefore uncopyrightable.

The question is a close one -- and impor-tant considerations of public policy are atstake on either side -- but, at the end ofthe day, we conclude that the annotationsin the OCGA are sufficiently law-like so asto be properly regarded as a sovereignwork. Like the statutory text itself, theannotations are created by the duly consti-tuted legislative authority of the State ofGeorgia. Moreover, the annotations clearlyhave authoritative weight in explicatingand establishing the meaning and effect ofGeorgia’s laws. Furthermore, the proce-dures by which the annotations were incor-porated bear the hallmarks of legislativeprocess, namely bicameralism and present-ment. In short, the annotations are legisla-tive works created by Georgia’s legislatorsin the exercise of their legislative authori-ty.

As a consequence, we conclude that thePeople are the ultimate authors of theannotations. As a work of the People theannotations are inherently public domainmaterial and therefore uncopyrightable.Because we conclude that no copyright canbe held in the annotations, we have nooccasion to address the parties’ other ar-guments regarding originality and fair use.

I.

A.

The Official Code of Georgia Annotated(OCGA or the Code) is an annotated com-pilation of Georgia statutes that has beenpublished annually since 1982. The statuto-ry text contained in the OCGA has been‘‘enacted and [has] the effect of statutesenacted by the General Assembly of Geor-gia.’’ O.C.G.A. § 1-1-1. As the Code itselfexplains, the statutory text in the OCGA isthe official published version of Georgia’slaws, and when the Georgia General As-

sembly enacts a new law, the bill typicallyreads ‘‘An ActTTT To amendTTT the Offi-cial Code of Georgia Annotated.’’

Appearing alongside the statutory textare various annotations, consisting of his-tory lines, repeal lines, cross references,commentaries, case notations, editor’snotes, excerpts from law review articles,summaries of opinions of the AttorneyGeneral of Georgia, summaries of advisoryopinions of the State Bar, and other re-search references. The Code itself makesclear that these annotations are a part ofthe official Code, stating that the statutoryportions of the Code ‘‘shall be merged withannotationsTTT and [are] published by au-thority of the state TTTand when so pub-lished [are to] be known and may be citedas the ‘Official Code of Georgia Annotat-ed.’ ’’ O.C.G.A. § 1-1-1.

Despite the fact that they are part of theofficial Code, Georgia law says that theannotations themselves do not have theforce of law in the way that the statutoryportions of the Code do. One provision ofthe Code explains that:

Unless otherwise provided in this Code,the descriptive headings or catchlinesimmediately preceding or within the textof the individual Code sections of thisCode, except the Code section numbersincluded in the headings or catchlinesimmediately preceding the text of theCode sections, and title and chapteranalyses do not constitute part of thelaw and shall in no manner limit orexpand the construction of any Codesection. All historical citations, title andchapter analyses, and notes set out inthis Code are given for the purpose ofconvenient reference and do not consti-tute part of the law.

O.C.G.A. § 1-1-7. Laws passed during eachsession of the Georgia General Assemblythat reenact the OCGA as the state’s offi-cial code similarly provide that the annota-


tions ‘‘contained in the Official Code ofGeorgia Annotated are not enacted as stat-utes by the provisions of this Act.’’ See,e.g., 2015 Ga. Laws 9, § 54.

The annotations were initially preparedby Mathew Bender & Co., Inc., an operat-ing division of the LexisNexis Group, (Lex-is), pursuant to an agreement it enteredinto with the State of Georgia. Under theterms of the agreement, Lexis is responsi-ble for the ongoing publication and mainte-nance of the Code, and all editorial, publi-cation, and distribution costs. In exchange,Lexis was given the exclusive right of pub-lication by Georgia. But, notably, Georgiaholds the copyright in the annotations inits own name. The publication agreementalso specifies what types of annotationsshould appear alongside the statutory text,and provides detailed and specific di-rections as to how Lexis is to generate andarrange this content. The agreement alsoprovides that the Code Revision Commis-sion (the ‘‘Commission’’) supervises thework of Lexis and has final editorial con-trol over the contents of the OCGA.

The Commission is a body establishedby the Georgia General Assembly in 1977that was originally tasked with undertak-ing the recodification of all of Georgia’slaws, a project that had not been donesince 1933. The Commission is comprisedof Georgia officials, including the Lieuten-ant Governor, four members of the Geor-gia Senate, the Speaker of the GeorgiaHouse of Representatives, four additionalmembers of the Georgia House of Repre-sentatives, and five members appointed bythe president of the State Bar of Georgia.Following its successful recodification ofGeorgia law and the publication of theOCGA in 1982, the Commission is nowresponsible for updating the OCGA andsupervising Lexis’s editing and publicationof the OCGA.

In addition to providing instructions toLexis about how the annotations should be

created, compiled, and arranged, the publi-cation agreement establishes a number ofother conditions governing the relationshipbetween Lexis and the State of Georgia.First, the agreement requires that Lexiscreate a free, unannotated, online versionof the Code for use by the general public.Second, the agreement limits the pricethat Lexis can charge for the OCGA.While other commercial annotations of theGeorgia Code can cost as much as $2,570,the price of the OCGA is currently $404.Third, it grants Lexis the exclusive rightto produce and sell print, CD-ROM, andonline versions of the OCGA. Finally, itprovides that the Commission shall receiveroyalties on the sale of CD-ROM and on-line versions of the OCGA, but shall notreceive royalties from the sale of printvolumes.

The publication agreement also providesthat ‘‘[a]ll the contents of the CodeTTT

shall be copyrighted in the name of theState of GeorgiaTTT [and] [t]he copyrightsshall cover all copyrightable parts of theCode.’’ The Commission asserts a copy-right in all portions of the OCGA exceptfor the statutory text, which it recognizescannot be copyrighted. Despite the copy-right and the exclusive publishing rightsgranted to Lexis, the State of Georgiamakes the CD-ROM version of the OCGAavailable to the general public at over 60state and county-operated facilitiesthroughout Georgia, such as libraries anduniversities. In addition, state agencies aregranted the right to print and distribute orsell to the public portions of the OCGAthat they are responsible for administer-ing.

B.

Public.Resource.Org (PRO) is a non-profit organization with a mission of im-proving public access to government rec-ords and primary legal materials. Thus for


example, PRO has been responsible for thefree, online publication of all U.S. SupremeCourt opinions and every post-1950 U.S.Court of Appeals opinion. PRO has alsobeen responsible for the online publicationof various state statutory codes.

In 2013 PRO purchased all 186 volumesof the print version of the OCGA and itssupplements, scanned them, and uploadedthem to its website to be freely accessibleto the public. It also placed digital copiesof the OCGA onto USB drives and mailedthem to various Georgia legislators. Addi-tionally, PRO distributed copies of theOCGA to other organizations and on otherwebsites in order to facilitate its furtherdissemination by other parties.

On multiple occasions the Commissionsent letters to PRO demanding that itcease and desist from publishing theOCGA on the grounds that publication in-fringes on the State of Georgia’s copyrightin the work. PRO refused to comply, argu-ing that there was no valid copyright inthe OCGA because the law cannot be copy-righted. The Commission, acting on behalfof the Georgia General Assembly and theState of Georgia, sued PRO on July 21,2015 in the United District Court for theNorthern District of Georgia. The com-plaint sought injunctive relief againstPRO’s ‘‘widespread and unauthorizedcopying and distribution of the copyrightedannotations in the Official Code of GeorgiaAnnotated through the distribution ofthumb drives containing copies of theO.C.G.A. and the posting of the O.C.G.A.on various websites.’’ On September 14,2015, PRO filed its answer to the com-plaint, acknowledging its widespread publi-cation of the OCGA, but denying that theState of Georgia holds an enforceablecopyright in the Code. PRO also assertedthe defense of fair use. Finally, PRO coun-terclaimed seeking a declaratory judgmentthat ‘‘the State of Georgia has no validcopyright in any portion of the O.C.G.A.

because the O.C.G.A. is in the public do-main.’’

Following briefing and argument, thedistrict court granted the Commission’smotion for partial summary judgment anddenied PRO’s motion. The court concludedthat because the annotations in the OCGAlack the force of law, they are not publicdomain material. Also, it rejected PRO’sother challenges to the validity of Geor-gia’s copyright as well as its fair use de-fense. Soon thereafter, the district courtentered a permanent injunction againstPRO enjoining it ‘‘from all unauthorizeduse, including through reproduction, dis-play, distribution, or creation of derivativeworks, of the Official Code of Georgia An-notated (O.C.G.A.).’’ The injunction alsoordered PRO to ‘‘remove all versions ofthe O.C.G.A. from its website,’’ and tocease any fundraising activities connectedwith PRO’s publication of the OCGA.

This timely appeal ensued.

II

[2–6] We review the grant of summaryjudgment de novo, applying the same legalstandards which bound the district court.Whatley v. CNA Ins. Cos, 189 F.3d 1310,1313 (11th Cir. 1999). In doing so, weconsider ‘‘the evidence and all factual in-ferences therefrom in the light most favor-able to the party opposing the motion.’’Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d1276, 1282 (11th Cir 2003). Summary judg-ment is proper only where there is nogenuine issue of material fact. Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248, 106S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genu-ine issue of material fact exists where thedispute is ‘‘over facts that might affect theoutcome of the suit under the governinglaw’’ and where the ‘‘evidence is such thata reasonable jury could return a verdictfor the nonmoving party.’’ Id. We alsoreview a district court’s decision to grant


equitable relief for abuse of discretion,considering questions of law de novo andfindings of fact for clear error. PreferredSites, LLC v. Troup Cty., 296 F.3d 1210,1220 (11th Cir. 2002).

[7, 8] In order to establish a prima fa-cie case of copyright infringement, ‘‘aplaintiff must show that (1) it owns a validcopyright in the [work] and (2) defendantscopied protected elements from the[work].’’ Peter Letterese And Assocs., Inc.v. World Inst. of Scientology Enters., 533F.3d 1287, 1300 (11th Cir. 2008). A validcopyright registration ‘‘constitute[s] primafacie evidence of the validity of the copy-right.’’ 17 U.S.C. § 410 (c). Once the plain-tiff has produced a valid copyright regis-tration, the burden shifts to the defendantto establish that the copyright is invalid.See Latimer v. Roaring Toyz, Inc., 601F.3d 1224, 1233 (11th Cir. 2010). There isno dispute that the State of Georgia has aregistered copyright in the OCGA annota-tions. Nor do the parties contest that PROcopied the OCGA in its entirety. Thus, atthe heart of this case is the questionwhether Georgia’s copyright in the OCGAis valid; on this issue PRO carries theburden of proof.

A.

The Constitution grants Congress thepower ‘‘[t]o promote the Progress of Sci-ence and useful Arts, by securing for limit-ed Times to Authors and Inventors theexclusive Right to their respective Writ-ings and Discoveries.’’ Art. I, Sec. 8, cl. 8.Congress has exercised this power bypassing the Copyright Act. 17 U.S.C.§ 101 et seq. Under the Copyright Act:

Copyright protection subsistsTTT in orig-inal works of authorship fixed in anytangible medium of expression, nowknown or later developed, from whichthey can be perceived, reproduced, or

otherwise communicated, either directlyor with the aid of a machine or device.

17 U.S.C. § 102.

[9] As this provision makes clear, ‘‘au-thorship’’ is central to the statutoryscheme. Only ‘‘original works of author-ship’’ are eligible for copyright protection.What’s more, authorship generally deter-mines who has a possessory interest in awork. ‘‘Copyright in a workTTT vests ini-tially in the author or authors of thework.’’ 17 U.S.C. § 201(a). Indeed, author-ship allows a person to claim copyrightprotection regardless of whether the workhas been registered with the United StatesCopyright Office. As we have explained,‘‘[c]opyright inheres in authorship and ex-ists whether or not it is ever registered.’’Arthur Rutenberg Homes, Inc. v. DrewHomes, Inc., 29 F.3d 1529, 1531 (11th Cir.1994). In consequence, to ascertain whoholds a copyright in a work, we ordinarilymust ascertain the identity of the author.

The meaning of authorship takes on spe-cial significance in cases like this where weconsider the copyrightability of a govern-ment edict. A long line of authority,stretching back more than 180 years, es-tablishes that, with respect to certain gov-ernmental works, the term ‘‘author’’ shouldbe construed to mean ‘‘the People,’’ so thatthe general public is treated as the ownerof the work. This means that a work sub-ject to the rule is inherently public domainmaterial and thus not eligible for copyrightprotection. The foundations of the case lawestablishing this doctrine are far fromclear. Few courts have fully explained thebasis for this idea and the Supreme Courtlast addressed the question in 1888. Thus,before explaining why we construe the‘‘author’’ of the OCGA to mean ‘‘the Peo-ple,’’ it’s worth examining the principalcases in some detail in order to understandthe considerations that guided them.


The Supreme Court first addressedwhether a government edict can be copy-righted in Wheaton v. Peters, 33 U.S. (8Pet.) 591, 8 L.Ed. 1055 (1834). The Courtunanimously held that ‘‘no reporter has orcan have any copyright in the written opin-ions delivered by this Court; and that thejudges thereof cannot confer on any re-porter any such right.’’ Id. at 668. TheCourt was interpreting the Copyright Actof 1790, but it did not explain the founda-tions for the rule that ‘‘the law’’ was ex-cluded from copyright protection. See id.at 593.

The Court revisited the question inBanks v. Manchester, 128 U.S. 244, 9 S.Ct.36, 32 L.Ed. 425 (1888), and held that theopinions of state court judges, just likeSupreme Court opinions, were not copy-rightable. In Banks the Court consideredan infringement suit filed by a publishingfirm that had published official reportscontaining the decisions of the SupremeCourt of Ohio against a defendant who hadpublished the same material in the Ameri-can Law Journal. Id. at 249, 9 S.Ct. 36. AnOhio statute provided for the appointmentof an official reporter for the SupremeCourt of Ohio, and tasked him with compil-ing the decisions and other materials au-thored by the judges and securing ‘‘for thebenefit of the state’’ a copyright on thecompilations. Id. at 245, 249, 9 S.Ct. 36.The Ohio statute also required the Secre-tary of State to contract with a publisher,who would be given the exclusive right topublish the reports compiled by the officialcourt reporter ‘‘so far as the state canconfer [such right].’’ Id. at 246, 9 S.Ct. 36.The plaintiff publishing firm in Banks wasthe chosen publisher, and, in suing, wasattempting to enforce a copyright interestin the work of the Ohio judges assigned toit by the State of Ohio.

The Court found the copyright invalid.Id. at 252, 9 S.Ct. 36. It emphasized thatunder then-extant copyright law only ‘‘au-

thors’’ could obtain a copyright in theirwork. The Court determined that the re-porter who had created the compilationsdid not qualify as the author of the opin-ions or the other materials written by thejudges since he had not created the works.Id. Moreover, the Supreme Court ex-plained that ‘‘[i]n no proper sense can thejudge who, in his judicial capacity, pre-pares the opinion or decision, the state-ment of the case, and the syllabus, orhead-note, be regarded as their author.’’Id. at 253, 9 S.Ct. 36. Thus, the Courtrested its decision on a construction of thestatutory term ‘‘author’’ that excluded boththe judges and the reporter from qualify-ing as authors of the material in question,which in turn meant that neither thejudges nor the reporter could have con-veyed a valid copyright interest to thepublishing firm bringing suit.

The Court offered a number of reasonsfor holding that the judges could not beconsidered the ‘‘authors’’ of their work. Inthe first place judges ‘‘receive from thepublic treasury a stated annual salary,fixed by law,’’ and therefore can ‘‘have nopecuniary interest or proprietorship, asagainst the public at large, in the fruits oftheir judicial labors.’’ Id. Furthermore, al-though the Court said that it was onlyconstruing the statutory meaning of theterm ‘‘author,’’ it also acknowledged that,fundamentally, ‘‘[t]he question is one ofpublic policy.’’ Id. In articulating this pub-lic policy interest, the Court explained that‘‘[t]he whole work done by the judges con-stitutes the authentic exposition and inter-pretation of the law, which, binding everycitizen, is free for publication to all, wheth-er it is a declaration of unwritten law, oran interpretation of a constitution or astatute.’’ Id. Banks expressly relied on aruling of the Massachusetts Supreme Judi-cial Court in Nash v. Lathrop, 142 Mass.29, 6 N.E. 559 (1886), which had similarlyobserved that ‘‘it needs no argument to


show that justice requires that all shouldhave free access to the opinions, and thatit is against sound public policy to preventthis, or to suppress and keep from theearliest knowledge of the public the stat-utes, or the decisions and opinions of thejustices.’’ Id. at 35, 6 N.E. 559.

The next, and to date last time theSupreme Court considered the rule thatgovernment edicts cannot be copyrightedcame less than a month after the Courthad decided Banks, in Callaghan v. Myers,128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547(1888). There, a publisher of a set of re-ports containing the opinions of the Su-preme Court of Illinois, known as the Illi-nois Reports, brought suit for copyrightinfringement against a rival publisher thathad copied and published the reports. Id.at 619-22, 9 S.Ct. 177. The original publish-er had obtained a proprietary interest inthe reports from a salaried official of theState of Illinois whose duties, defined bystatute, consisted of compiling the IllinoisReports; organizing the cases; writing an-notations such as headnotes and syllabi toappear alongside the opinions in the re-ports; and providing a certain number ofcopies of the final product to the Secretaryof State of Illinois. Id. at 645-46, 9 S.Ct.177. Having fulfilled his statutory duties,the reporter sold whatever proprietary in-terest he had in the Illinois Reports to thepublishing firm. When the firm sued forcopyright infringement, the alleged in-fringer attempted to defend, claiming thatthe reports were public property becausethey had been created by a state-employedreporter who could himself have no pro-prietary interest in the work since he cre-ated the reports as part of his publicduties and therefore was not their ‘‘au-thor.’’ Id. at 645-47, 9 S.Ct. 177.

The Court began its analysis by rein-forcing the basic rule announced in Banksthat ‘‘there can be no copyright in theopinions of the judges, or in the work done

by them in their official capacity asjudges.’’ Id. at 647, 9 S.Ct. 177. Neverthe-less it rejected the claim that the copyrightin the Illinois Reports was invalid. It ex-plained that the underlying rationale ofBanks did not apply, observing that ‘‘thereis no ground of public policy on which areporter who prepares a volume of lawreports, of the character of those in thiscase, canTTT be debarred from obtaining acopyright for the volume which will coverthe matter which is the result of his intel-lectual labor.’’ Id. The Court further sug-gested that, since the court reporter was a‘‘sworn public officer, appointed by theauthority of the governmentTTT [and] paida fixed salary for his labors,’’ the stategovernment might have taken any proprie-tary interest in his work for itself, but thefact that it had not done so suggested thatthere was ‘‘a tacit assent by the govern-ment to his exercising such privilege’’ onhis own. Id. The Court thus reasoned thatfederal copyright law as explicated inBanks did not prevent the reporter fromholding a valid copyright in the work andthat the state had not reserved the copy-right to itself. As a result, the copyrightthe reporter obtained and conveyed to thepublishing firm was valid. The compilationof judicial decisions and other explanatorymaterial like headnotes, tables, and indi-ces, was different from Banks in two ways:first, the reporter, who had been appointedby the Illinois Supreme Court, and not thejudges, had written the material accompa-nying the opinion; and, second, the report-er, and not the State of Illinois, claimed tohold the copyright.

The Supreme Court has not examinedthe doctrine since it decided Callaghan in1888. However, since Banks and Callaghanthe lower courts have further explored thenature and application of the rule. Thus,for example, the Sixth Circuit, in an opin-ion authored by Justice Harlan, appliedthe rule to state statutes. Howell v. Miller,


91 F. 129 (6th Cir. 1898). The Fifth Circuithas extended the rule to encompass regu-latory materials. Veeck v. S. Bldg. CodeCong. Int’l, Inc., 293 F.3d 791 (5th Cir.2002) (en banc). However, other courtshave declined to extend the rule in other,related contexts. See, e.g., CCC Info.Servs., Inc. v. Maclean Hunter Mkt. Re-ports, Inc., 44 F.3d 61 (2d Cir. 1994) (de-clining to apply the rule to a privatelyprepared listing of automobile values thatseveral states required insurance compa-nies to use in calculating insurance pay-outs); Practice Mgmt. Info. Corp. v. Am.Med. Ass’n, 121 F.3d 516 (9th Cir. 1997),amended, 133 F.3d 1140 (9th Cir. 1998)(declining to apply the rule to a privatelyauthored coding system that was incorpo-rated into a government reimbursementscheme through publication in the FederalRegister); Cty. of Suffolk v. First Am.Real Estate Sols., 261 F.3d 179, 193 (2dCir. 2001) (declining to apply the rule totax maps created by a county assessor’soffice); John G. Danielson, Inc. v. Winches-ter-Conant Properties, Inc., 322 F.3d 26(1st Cir. 2003) (declining to apply the ruleto the terms of a restrictive covenant atown entered into as part of a zoningscheme).

It is also worth observing that Congresshas partially codified the rule announced inBanks. Specifically, the 1909 version of theCopyright Act provided that ‘‘no copyrightshall subsist in the original text of anywork which is in the public domainTTT orin any publication of the United StatesGovernment, or any reprint, in whole or inpart, thereof.’’ 17 U.S.C. § 8 (repealed1976). This prohibition persists under cur-rent copyright law, enacted in 1976, which,in turn, provides that ‘‘[c]opyright protec-tion under this title is not available for anywork of the United States Government.’’17 U.S.C. § 105.This partial codification ofBanks for works created by the federalgovernment leaves unmodified the rule asit applies to works created by the states.

As the Copyright Office’s 1961 Register’sReport stated, even though Congress en-acted a prohibition that only applies to thefederal government, ‘‘the judicially estab-lished rule [ ] still prevent[s] copyright inthe text of state laws, municipal ordi-nances, court decisions, and similar officialdocuments.’’ 1961 Register’s Report, at129-30.

Although case precedent and congres-sional enactments have long establishedthe rule that government works are notcopyrightable, the foundations of the ruleare generally implicit and unstated. Sincethe Court in Banks was not especiallyclear about the legal source of the rule ithad announced and since the issue has notbeen raised before in our Court, we startwith a relatively clean canvas. What isclear, however, is that the rule enunciatedin Banks was grounded on the Court’sinterpretation of the term ‘‘author’’ in theCopyright Act of 1790, that works createdby courts in the performance of their offi-cial duties did not belong to the judges,and that public policy compelled the con-clusion that these works were in the publicdomain and uncopyrightable.

[10] Thus, we understand the rule inBanks to derive from first principles aboutthe nature of law in our democracy. Underdemocratic rule, the People are sovereign,they govern themselves through their leg-islative and judicial representatives, andthey are ultimately the source of our law.Under this arrangement, lawmakers andjudges are draftsmen of the law, exercisingdelegated authority, and acting as servantsof the People, and whatever they producethe People are the true authors. When thelegislative or judicial chords are plucked itis in fact the People’s voice that is heard.Not surprisingly, then, for purposes ofcopyright law, this means that the People,as the constructive authors are also theowners of the law. And in this way, any


work of which the People are the construc-tive authors is intrinsically public domainmaterial and is freely accessible to all sothat no valid copyright can ever be held init.

The concept of popular sovereignty isdeeply rooted in our politics, our law, andour history. The seminal statement ofAmerica’s political creed boldly proclaimsthat ‘‘[g]overnments TTT deriv[e] their justpowers from the consent of the governed.’’THE DECLARATION OF INDEPENDENCE para. 2(U.S. 1776). During the ratification debatesthat followed the Revolution, James Madi-son similarly began with the foundationalidea that the People were sovereign, andthat under the proposed form of govern-ment ‘‘the public voice’’ was ‘‘pronouncedby the representatives of the people.’’ THE

FEDERALIST No. 10 at 77 (James Madison)(Clinton Rossiter ed., 1961). Still again, inthe midst of the Civil War, President Lin-coln etched an indelible description of thisform of government in the national memo-ry, describing ours as a ‘‘government ofthe people, by the people, for the people.’’Abraham Lincoln, Gettysburg Address(November 19, 1863).

In fact, the United States Reports arefilled with invocations of the sovereignty ofthe People. As Chief Justice Marshall ex-pressed the fundamental idea many yearsago: ‘‘[t]he government proceeds directlyfrom the people; is ‘ordained and estab-lished,’ in the name of the peopleTTT [and]is emphatically and truly, a government ofthe people. In form, and in substance, itemanates from them. Its powers aregranted by them, and are to be exerciseddirectly on them, and for their benefit.’’M’Culloch v. Maryland, 17 U.S. (4 Wheat.)316, 403-05, 4 L.Ed. 579 (1819); see alsoChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1L.Ed. 440 (1793); Luther v. Borden, 48U.S. (7 How.) 1, 12 L.Ed. 581 (1849). Seealso TOCQUEVILLE, DEMOCRACY IN AMERICA 53(Mansfield ed. 2002). (‘‘In America, the

principle of the sovereignty of the peo-pleTTT is recognized by mores, proclaimedby laws; [ ] spreads with freedom andreaches its final consequences without ob-stacleTTT when one wants to speak of thepolitical laws of the United States, it isalways with the dogma of the sovereigntyof the people that one must begin.’’).

While Banks is not explicit in groundingits holding in this conception of sovereign-ty, other federal courts have ruled thatgovernment works are intrinsically publicdomain material precisely because thePeople are sovereign and are therefore theauthors and owners of the law. Thus, forexample, in Banks & Bros. v. W. Pub. Co.,27 F. 50 (C.C.D. Minn. 1886), the courtjustified the rule on the grounds that‘‘[e]ach citizen is a ruler,— a law-maker,—and as such has the right of access to thelaws he joins in making and to any officialinterpretation thereof. If the right of prop-erty enters into the question, he is a partowner, and as such cannot be deprived ofequal access by his co-owners.’’ Id. at 57.

In the same vein, and more recently,several courts have applied the rule an-nounced in Banks and understood the ruleto rest on foundational principles about thenature of law in a democratic society.Thus, in Veeck, the Fifth Circuit, sitting enbanc, confronted the question of whether amodel building code, once adopted by twomunicipalities, lost its copyright protection.Veeck, 293 F.3d at 796. In concluding thatthe work was uncopyrightable, the courtasserted as a basic principle that the law isin ‘‘the public domain and thus not amena-ble to copyright,’’ and that cases likeWheaton and Banks evince a ‘‘broad un-derstanding of what constitutes ‘the law’ ’’so as to make judicial opinions in additionto statutes ineligible for copyright protec-tion. Id. at 795-96. On this basis, the courtheld that, ‘‘[a]s governing law,’’ the munici-pal building codes also could not be copy-righted. Id. at 796.


The court went on to explain that itsholding rested on a deeper principle, a‘‘metaphorical concept of citizen author-ship.’’ Id. at 799. As the court reasoned,‘‘[l]awmaking bodies in this country enactrules and regulations only with the con-sent of the governed. The very process oflawmaking demands and incorporates con-tributions by ‘the people,’ in an infinite va-riety of individual and organizational ca-pacitiesTTT In performing their function,the lawmakers represent the public will,and the public are the final ‘authors’ of thelaw.’’ Id. The court discerned that thereare strong public policy interests in givingthe public unfettered access to the law.‘‘[P]ublic ownership of the law means pre-cisely that ‘the law’ is in the ‘public do-main’ for whatever use the citizens chooseto make of it. Citizens may reproduce cop-ies of the law for many purposes, not onlyto guide their actions but to influence fu-ture legislation, educate their neighbor-hood association, or simply to amuse.’’ Id.Thus, the ‘‘metaphorical concept of citizenauthorship together with the need for citi-zens to have free access to the laws arethe ultimate holding of Banks.’’ Id. (quota-tion omitted).

The First Circuit has also emphasizedpopular sovereignty as being foundationalto its understanding of the rule announcedin Banks. In Building Officials & CodeAdministrators v. Code Technology, Inc.,628 F.2d 730 (1st Cir. 1980), the courtconsidered, on an interlocutory appealchallenging the issue of a preliminary in-junction, a copyright infringement suitbrought by the private sector author of amodel building code against a publisher ofthe Massachusetts building code, which theMassachusetts legislature had based in

large measure on the model code. Thecourt ruled that the inclusion of the other-wise copyrightable model building code inthe official Massachusetts building codelikely rendered those materials, just likethe rest of the materials in the Massachu-setts building code, ‘‘freely available forcopying by anyone.’’ Id. at 732.

[11] After reviewing case precedentgoing as far back as Wheaton, a panel ofthe First Circuit asserted that ‘‘[t]he lawthus seems clear that judicial opinions andstatutes are in the public domain and arenot subject to copyright.’’ Id. at 734. Thecourt reasoned that this principle extendsto regulatory codes as much as it does tostatutes and judicial opinions. While ac-knowledging that cases like Banks andWheaton seemed to rest in part on theidentity of the creators of the works inquestion, namely salaried public officialsperforming official duties, it explained thata more fundamental principle was at work.In particular, ‘‘citizens are the authors ofthe law, and therefore its owners, regard-less of who actually drafts the provisions,because the law derives its authority fromthe consent of the public, expressedthrough the democratic process.’’ Id. Thereason why judges and legislators cannotcopyright works they create, was not be-cause they are working for the govern-ment rather than for themselves, but rath-er because of a ‘‘metaphorical concept ofcitizen authorship,’’ which means that, onceit adopts a text as law, the body politicbecomes the author of the work in ques-tion, leaving the original drafter with noproprietary interest. Id. The court rea-soned that this was true even where theoriginal creator of the work was a privatesector actor.1

1. It is also worth observing that rootingBanks in this understanding of sovereigntyhelps make the rule congruent with other,closely related copyright doctrines. The work-for-hire doctrine, as well as § 105 -- the par-

tial codification of Banks -- are both opera-tionalized by identifying a master-servant re-lationship and attributing authorship to themaster. See, e.g., Comty. For Creative Non-


III.

The ultimate inquiry posed by the rulein Banks is thus whether a work is attrib-utable to the constructive authorship of thePeople, which is to say whether it wascreated by an agent of the People in thedirect exercise of sovereign authority.Statutes and judicial opinions are the mostobvious examples of what falls within theambit of the rule. See Veeck, 293 F.3d at796 (‘‘Banks represents a continuous un-derstanding that ‘the law,’ whether articu-lated in judicial opinions or legislative actsor ordinances, is in the public domain andthus not amenable to copyright.’’)

This does not mean that statutes, judi-cial opinions, and other texts that carrythe clear force of law are the only worksthat may be subject to the rule. For onething, relying, as the district court did, ona bright line distinction between edictsthat have the force of law and those thatdo not to apply the Banks rule simply doesnot work in some cases. This is one ofthem. It is clear to us that there exists azone of indeterminacy at the frontier be-tween edicts that carry the force of lawand those that do not. See Jean v. Nelson,711 F.2d 1455, 1480-83 (11th Cir. 1983), onreh’g, 727 F.2d 957 (11th Cir. 1984), aff’d,472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d664 (1985). In this small band of cases agovernment work may not be character-ized as law, and yet still be so sufficientlylaw-like as to implicate the core policyinterests undergirding Banks.

[12] Statutory texts are the kinds ofworks most obviously subject to the rule

announced in Banks. Because statutes arethe prototypical works to which the ruleapplies, we rely on the statutory exampleas the lodestar for our inquiry. Whether ornot a work is subject to the rule is depen-dent on whether the work is the law, orsufficiently like the law, so as to bedeemed the product of the direct exerciseof sovereign authority, and therefore at-tributable to the constructive authorship ofthe People. Basing the inquiry on whethera work is similar enough to the law so asto be attributable to the People, of course,does little to diminish the difficulty of ap-plying the Banks rule in the unique cir-cumstances presented here. See John G.Danielson, Inc. v. Winchester-ConantProperties, Inc., 322 F.3d 26, 38 (1st Cir.2003) (‘‘[The] straightforward general rule[of Banks] has proven difficult to applywhen the material in question does not fallneatly into the categories of statutes orjudicial opinions.’’). But it does point ustoward the right way of structuring ouranalysis.

Put simply, there are certain things thatmake the law what it is. The law is writtenby particular public officials who are en-trusted with the exercise of legislativepower; the law is, by nature, authoritative;and the law is created through certain,prescribed processes, the deviation fromwhich would deprive it of legal effect. Eachof these attributes is a hallmark of law.These characteristics distinguish writtenworks that carry the force of law from allother works. Since we are concerned herewith whether a work is attributable to the

Violence v. Reid, 490 U.S. 730, 109 S.Ct.2166, 104 L.Ed.2d 811 (1989); United Statesv. First Tr. Co. of St. Paul, 251 F.2d 686, 690(8th Cir. 1958); see also H.R. Rep. No. 94-1476 at 58 (1976) (‘‘Although the wording ofthe definition of ‘work of the United StatesGovernment’ differs somewhat from that ofthe definition of ‘work made for hire,’ theconcepts are intended to be construed in the

same way.’’). Similarly, under our view ofBanks, the People are the master, and there-fore the owners of the works created by theirlegislative and judicial agents. See Veeck, 293F.3d at 797 (‘‘Banks refers to the source ofthe judges’ salary in order to explain that it isthe public at large, not the judges, who havethe ‘pecuniary interest or proprietorship’ in‘the fruits of their judicial labors.’ ’’).


constructive authorship of the People,these factors guide our inquiry into wheth-er a work is law or sufficiently law-like soas to be subject to the rule in Banks.

[13] An analysis of these factors yieldsthe conclusion that the annotations in theOCGA, while not having the force of law,are part and parcel of the law. They are soenmeshed with Georgia’s law as to be inex-tricable. The annotations are themselveslaw-like insofar as we examine who madethem, how they were made, and the rolethey play in the legislative and jurispru-dential spheres of Georgia’s public life. Inconsequence, they too represent a work,like the statutes themselves, that is con-structively authored by the People. Theyare therefore uncopyrightable.

A.

First, and of critical importance to ouranalysis is that the Georgia General As-sembly is the driving force behind theircreation. The Code Revision Commissionexerts authoritative influence over the cre-ation of the annotations and the Commis-sion indisputably is an arm of the GeneralAssembly. Thus, just as the uncopyright-able works in Banks were created by theOhio Supreme Court, the annotations are,in a powerful sense, a work created by theGeorgia state legislature.

While it is true that the annotationswere initially prepared by a private party,in this case Lexis, it is also the case thatLexis drafts the annotations pursuant tohighly detailed instructions contained inthe contract it entered into with the CodeRevision Commission. In particular, thepublication agreement not only lists thetypes of materials that Lexis must includein the OCGA, but also provides punctili-ously specific instructions on how thesematerials are to be prepared. Thus, by wayof example, in addition to instructing Lexisto include annotations summarizing courtdecisions that are relevant to various stat-

utory provisions in the OCGA, the publica-tion contract tells Lexis which court deci-sions to include. Moreover, the contractspecifies the content of these summaries,instructing Lexis to include discussion ofthose portions of judicial opinions that in-volve ‘‘direct constructions’’ of a statute,including ‘‘constructions concerning consti-tutionality, purpose, intent, and the mean-ing of words and phrases as well as illus-trations as to what a particular provisionapplies and to what a particular provisiondoes not apply.’’ Leaving even less to Lex-is’s independent judgment, the contractalso instructs Lexis what not to include inthe judicial summaries, ordering Lexis’seditors to ‘‘avoid long factual annotationswhere they do not bear directly upon thestatute involved.’’ Further, the agreementtells Lexis the order in which the variouscase annotations are to be arranged.

The annotations containing summariesof judicial opinions are not the only onesfor which the publication contract provideshighly specific directions. The agreementalso requires Lexis to include researchreferences in the annotations, and namesthe specific reference sources that must beincluded. Similarly, the contract directsLexis to include annotations dealing withlegislative history and specifies just howfar back into a statutory provision’s histo-ry the annotations may go.

In addition to providing detailed instruc-tions that guide the creation of the OCGAannotations, the Commission acts in a su-pervisory capacity as well, monitoringLexis’s work throughout the process. Thecontract says that the annotations are pre-pared under the ‘‘direct supervision’’ of theCommission. The contract spells out insome detail what this supervision means.In addition to including the research refer-ences listed in the publication agreement,Lexis is required to ‘‘include any new [ref-erences]TTT as required by the Commis-sion.’’ Sections of the agreement dealing


with other annotations similarly allow theCommission to direct the inclusion of newmaterial. Indeed, the very first section ofthe agreement states that the OCGA shallinclude, in addition to the various, speci-fied annotations, ‘‘other material related toor included in such Code at the directionof the Commission.’’

Finally, the publication agreement de-scribes in detail how the Commission is togive its final assent to the annotations.First, as for each type of annotation, theagreement affirms the Commission’s rolein approving Lexis’s work. Thus, with re-spect to the summaries of judicial opinions,the agreement provides that ‘‘the form ofthe annotations shall be subject to theapproval of the Commission.’’ The agree-ment contains similar provisions with re-spect to the other annotations. More gen-erally, the agreement provides that the‘‘ultimate right of editorial control over allmaterial contained in the Code shall be inthe Commission, and in the event of anydisagreement between the Commissionand the Publisher over the material to beincluded, the decision of the Commissionshall control.’’ A separate provision of theagreement similarly provides that in theevent of any disagreement ‘‘the Commis-sion shall prevail.’’ Moreover, the agree-ment requires that the Commission havean opportunity to conduct pre-publicationreview of all subsequent supplements, re-placement volumes, and other updates tothe OCGA.

In short, the Commission exercises di-rect, authoritative control over the creationof the OCGA annotations at every stage oftheir preparation. The Commission pro-vides initial instructions to Lexis, directlysupervises Lexis’s work throughout thepreparation process, and must give its finaleditorial assent to the annotations beforethey can become part of the OCGA. In thisway, the Commission undeniably controlsthe creation of the OCGA annotations.

The Commission’s intimate involvementin the creation of the annotations is ofgreat significance. This is because a closeexamination of the nature of the Commis-sion confirms that it is for all intents andpurposes an arm of the Georgia GeneralAssembly. As we’ve noted, the Commissionis composed of fifteen members, nine ofwhom are sitting members of the GeorgiaGeneral Assembly, along with the Lieuten-ant Governor of the State. Further, fund-ing for the Commission comes directlyfrom appropriations ‘‘provided for the leg-islative branch of state government.’’O.C.G.A. § 28-9-2. In addition, Georgia lawprovides that ‘‘[t]he Office of LegislativeCounsel shall serve as staff for the com-mission.’’ O.C.G.A. § 28-9-4. This is nota-ble because, under Georgia law, the Officeof Legislative Counsel is tasked with pro-viding various advisory and legal services‘‘for the legislative branch of government’’and is therefore properly seen as an ad-junct to the General Assembly. O.C.G.A.§ 28-4-3. Thus, not only is the Commissionfunded by legislative branch appropria-tions, but its staff is drawn from an officethat is itself an agency of the GeorgiaGeneral Assembly.

Further confirming the Commission’sdeep connection to the Georgia GeneralAssembly, the Georgia Supreme Court hasheld that the Commission’s work is proper-ly characterized as ‘‘legislative’’ in nature,and that it is therefore proper for theCommission to be largely composed of offi-cials from the legislative branch. HarrisonCo. v. Code Revision Comm’n, 244 Ga. 325,260 S.E.2d 30 (1979). Thus, in light of howit is funded and staffed, and since its workis legislative in nature, it is abundantlyclear that the Commission is a creationand an agent of the Georgia General As-sembly.

[14, 15] Indeed, the connection be-tween the Commission and the elected leg-


islators who make up the General Assem-bly is so close that the Commission may beproperly regarded as one in the same withthe legislators for our purposes. As theSupreme Court has explained in anothercontext, ‘‘it is literally impossible, in viewof the complexities of the modern legisla-tive processTTT for [legislators] to performtheir legislative tasks without the help ofaides and assistantsTTTthe day-to-daywork of such aides is so critical to theMembers’ performance that they must betreated as the latter’s alter egos.’’ Gravelv. United States, 408 U.S. 606, 616-17, 92S.Ct. 2614, 33 L.Ed.2d 583 (1972). In con-sequence, the Court has held that legisla-tive immunity ‘‘applies not only to a Mem-ber but also to his aides insofar as theconduct of the latter would be a protectedlegislative act if performed by the Memberhimself.’’ Id. at 618, 92 S.Ct. 2614; see alsoEllis v. Coffee Cty. Bd. of Registrars, 981F.2d 1185, 1192 (11th Cir. 1993) (‘‘To theextent that a legislator is cloaked withlegislative immunity, an adjunct to thatlegislative body possesses the same immu-nity.’’). ‘‘The test for applicability of thisderivative legislative immunity is whetherthe legislator, counsel or aide was engagedwithin a legitimate sphere of legislativeactivity.’’ Id.

The basic intuition underlying cases ap-plying the Speech and Debate Clauseseems to us equally instructive in identify-ing which entity in the Georgia state gov-ernment is the creative force behind theOCGA annotations. While the Commis-sion’s staff and six of its fifteen membersare not Georgia legislators, the Commis-sion is plainly an adjunct of the GeneralAssembly. As we have detailed, its staff,funding, and responsibilities all fall underthe legislative umbrella. The Commissionis therefore, in a real sense, the ‘‘alter ego’’of the General Assembly, meaning that thecreative force behind the annotations areGeorgia’s elected legislators. Acting

through the Commission, the legislatorsclosely supervise and direct the productionof the annotations.

Moreover, and of even greater impor-tance to our analysis, the OCGA annota-tions, once completed, are subject to theapproval not only of the Commission, butalso to the approval of the Georgia GeneralAssembly. The General Assembly actuallyvotes (and must vote) to make the OCGAthe official codification of Georgia’s lawsand, in doing so, also votes to incorporatethe annotations as part of the OCGA.O.C.G.A. § 1-1-1 (‘‘The statutory portion ofsuch codification shall be merged with an-notations, captions, catchlines, historylines, editorial notes, cross-references, in-dices, title and chapter analyses, and othermaterials pursuant to the contract andshall be published by authority of the statepursuant to such contract and when sopublished shall be known and may be citedas the ‘Official Code of Georgia Annotat-ed.’ ’’). In other words, the OCGA annota-tions are not only authored at the directionand under the close supervision of theGeorgia General Assembly, but they alsoobtain their peculiar status as official anno-tations because they are adopted annuallyby the General Assembly.

[16, 17] That Georgia’s legislators arein a very real way the creators of theannotations is a powerful indication thatthe annotations are subject to the Banksrule. To begin, it is apparent that the ruleestablished by Banks that governmentedicts cannot be copyrighted, as applied tothe works of state governments, is morelimited than the statutory prohibition oncopyright protection for works of the fed-eral government. As we have explained,§ 105 states that ‘‘[c]opyright protec-tionTTT is not available for any work of theUnited States Government,’’ and § 101 de-fines a ‘‘work of the United States Govern-ment’’ as ‘‘a work prepared by an officer oremployee of the United States Govern-


ment as part of that person’s officialduties.’’ Thus, under this prohibition, thework of any federal employee, made in hiscapacity as a government employee, is un-copyrightable. See, e.g., Scherr v. Univer-sal Match Corp., 417 F.2d 497 (2d Cir.1969); United States v. First Tr. Co. of St.Paul, 251 F.2d 686, 690 (8th Cir. 1958);Pub. Affairs Assocs., Inc. v. Rickover, 268F.Supp. 444, 448 (D.D.C 1967). By con-trast, the rule in Banks is more circum-scribed, applying to a limited subclass ofgovernment works. Thus, some worksmade by state employees, that would besubject to § 105 if made by a federal em-ployee, are nevertheless copyrightable un-der Banks. See, e.g., Callaghan, 128 U.S.at 645-46, 9 S.Ct. 177 (upholding the validi-ty of a copyright in the work created by astate employee that was created pursuantto his statutorily imposed duties); Countyof Suffolk, 261 F.3d at 193 (declining toapply the rule in Banks to tax maps creat-ed by a county assessor’s office).

The reasoning of Banks points to whythe rule it has announced is applicable to amore limited class of public officials thanthose governed by § 105’s prohibition. TheCourt in Banks explained, ‘‘[i]n no propersense can the judge who, in his judicialcapacity, prepares the opinion or decision,the statement of the case, and the syllabus,or head-note, be regarded as their authoror their proprietorTTTJudges, as is wellunderstood, receive from the public trea-sury a stated annual salary, fixed by law,and can themselves have no pecuniary in-terest or proprietorship, as against thepublic at large, in the fruits of their judi-cial laborsTTT The whole work done by thejudges constitutes the authentic expositionand interpretation of the law, which, bind-ing every citizen, is free for publication toall.’’ Banks, 128 U.S. at 253, 9 S.Ct. 36.Thus, like § 105, the Banks decision em-phasizes the fact that judges are producingworks in their capacity as employees, butit also goes further than § 105 and empha-

sizes that judges are unique among gov-ernment employees. In addition to receiv-ing ‘‘from the public treasury a statedannual salary,’’ judges are empowered tocreate ‘‘authentic exposition[s] and inter-pretation[s] of the law, which[ ] bind[ ] ev-ery citizen.’’ Id.

[18] As a result, the mere fact that awork was created by a state-paid employeein his capacity as an employee is notenough to trigger the rule in Banks. Some-thing more is needed. Specifically, the gov-ernment official must be entrusted withunique powers beyond those possessed bythe typical government employee, such asthe power to pronounce official interpreta-tions of the law.

In short, it is clear that the rule inBanks is not concerned, as § 105 is, withthe works of all government employees,but rather only with the works of certaingovernment employees, which is to saygovernment employees who are possessedof particular powers, namely the ability topromulgate official, binding edicts. Thisdistinction between the rules is no doubtattributable to the difference in their un-derlying rationales. Section 105’s prohibi-tion is justified on the grounds that thepublic paid for the work and is thereforeentitled to access it, and because widedissemination of federal government mate-rials strengthens democratic discourse.See Scherr, 297 F.Supp. at 110 (‘‘[The]fun-damental purpose underlying the prohibi-tion [ ] is based on the necessity of widepublic dissemination of the contents of ma-terials produced by and relating to issuesand problems of national interest, whichpolicy is unquestionably a desirable one ina democracy, much of whose success isdependent on a well-informed public.’’)(quotations omitted and alterationsadopted); Hearings on H.R. 4347, H.R.5680, H.R. 6831, H.R. 6835, before Sub-comm. No. 3 of the House Comm. on theJudiciary, 89th Cong., 1st Sess. 1924 (1965)


(statement of Sen. Russell Long) (‘‘Theoriginal and continuing purpose of thisprohibition is to assure maximum availabil-ity and dissemination of informational ma-terial prepared by or for the Governmentat the expense of the public.’’).

On the other hand, the rule in Banksderives more directly from the concept ofpopular sovereignty. As a result, while§ 105 is concerned with any work createdby a federal employee, since all govern-ment works are paid for by the taxpayerand, as a policy matter, are potentiallyuseful to conscientious and informed citi-zens, the rule in Banks is concerned withworks created by a select group of govern-ment employees, because only certain pub-lic officials are empowered with the directexercise of the sovereign power.2

This explains why the state-paid courtreporter acting pursuant to his statutoryduties in Callaghan did not run afoul of therule in Banks and could hold a valid copy-right in his work even though the work hecreated likely would fall within § 105’sprohibition if he had been a federal em-ployee. See Callaghan, 128 U.S. at 645-47,9 S.Ct. 177. Though paid by the state, andacting pursuant to his official duties, thecourt reporter was tasked with essentially

administrative and clerical responsibilities,to wit compiling and summarizing judicialdecisions, rather than the promulgation ofbinding legal edicts. Id. at 646, 9 S.Ct. 177.There was therefore ‘‘no ground of publicpolicy’’ standing in the way of his works’copyrightability. Id. at 647, 9 S.Ct. 177.

In contrast, the judges in Banks, whenconsidered in their relationship to the sov-ereignty of the People, fulfill a differentfunction than the court reporter in Calla-ghan. Legislators and judges, unlike othergovernment workers, are peculiarly en-trusted with the exercise of sovereign pow-er to write or officially interpret the law.Since the power to make law rests ulti-mately and exclusively with the People, theprimary, official duty of lawmakers andjudges is therefore to act as agents of thePeople. While government workers likethe reporter in Callaghan might also besaid to be engaged in conducting the Peo-ple’s business, their relation to the exerciseof sovereign power is more attenuated. Asa result, if a government work is createdby a public official who is so empowered, itis substantially more likely that the workis constructively authored by the people.3

In light of these considerations, that theGeorgia General Assembly is the driving

2. Among other things, there is a substantialpublic policy interest in public access to state-created legal edicts for many of the samereasons that Congress decided to make allworks of the federal government uncopyright-able under § 105, namely because providingfree access to such works promotes an in-formed citizenry. See Veeck, 293 F.3d at 799(‘‘Citizens may reproduce copies of the lawfor many purposes, not only to guide theiractions but to influence future legislation, ed-ucate their neighborhood association, or sim-ply to amuse.’’). And it is worth rememberingthat the Supreme Court grounded the mean-ing of the word ‘‘author’’ in Banks on itsunderstanding of public policy.Appellees suggest, nevertheless, that Georgia’scitizens can access the OCGA in over 60 li-braries, so we ought not to be concernedabout public access. Moreover, they say, citi-

zens can access the unannotated version ofthe Code on a free LexisNexis webpage pro-vided pursuant to Georgia’s contact with Lex-isNexis. We are unpersuaded. In the firstplace public ownership of the law by Geor-gia’s ten and a half million citizens means, asthe Fifth Circuit put it, ‘‘ ‘the law’ is in the‘public domain’ for whatever use the citizenschoose to make of it.’’ Id. at 799. As for accessto an unannotated version of the Code, theunannotated version is not the authoritativelaw in Georgia and may not be cited as such.Indeed, as the appellees themselves acknowl-edge, the OCGA ‘‘contains the official, orState of Georgia-approved, codified statutorytext.’’

3. It is also worth remarking that basic princi-ples of republican government show why theidentity of the official who created the work


force behind and ultimately adopts theOCGA annotations is significant. Like theOhio Supreme Court in Banks, the GeorgiaGeneral Assembly is not simply composedof ordinary government employees butrather of public officials whose officialduties peculiarly include the direct exer-cise of sovereign power. See Ga. Const.Art. III, § I, Para. I (‘‘The legislative pow-er of the state shall be vested in a GeneralAssembly which shall consist of a Senateand a House of Representatives.’’). Of themany government workers employed bythe state of Georgia, the creators of theOCGA annotations are unique insofar asthey are entrusted by the sovereign withlegislative power.

This is not to say that every work pro-duced by a legislative body is automaticallyuncopyrightable. As we detail below, stillmore is necessary to demonstrate that theOCGA annotations are the kind of workthat is attributable to the constructive au-thorship of the People. However, becausethe OCGA annotations were created bypublic officials entrusted with sovereign,legislative authority, just like the opinionsin Banks were created by justices on theOhio Supreme Court entrusted with sover-eign, judicial authority, this weighs in fa-vor of a determination that the OCGAannotations belong in the public domain.

B.

We are also persuaded because, whilenot carrying the force of law in the way

that the statutory portions of the OCGAdo, the annotations are ‘‘law-like’’ in thesense that they are ‘‘authoritative’’ sourceson the meaning of Georgia statutes. Hav-ing been merged by the General Assemblywith the statutory text into a single, uni-fied edict, stamped with the state’s impri-matur, and created and embraced by thesame body that wrote the text that theyexplicate, the annotations have been suf-fused with powerful indicia of legal signifi-cance that is impossible to ignore. Theannotations cast an undeniable, officialshadow over how Georgia laws are inter-preted and understood. Indeed, Georgia’scourts have cited to the annotations asauthoritative sources on statutory mean-ing and legislative intent. The annotations’authoritativeness makes them closely anal-ogous to the types of works that ordinari-ly represent an exercise of sovereign au-thority. The nature of the work, like theidentity of its creator, therefore impels usfurther toward the conclusion that theseannotations are attributable to the con-structive authorship of the People.

The nature of the OCGA annotations isspelled out in some detail by Georgia’sGeneral Assembly. While disclaiming anylegal effect in the annotations, the Georgialaw providing for the creation of theOCGA also states that the ‘‘statutory por-tion of such codification shall be mergedwith annotations, captions, catchlines, his-tory lines, editorial notes, cross-references,indices, title and chapter analyses, and oth-

matters. Sovereign power isn’t delegated tothe government at large -- it is given to specif-ic public officials to exercise in particularways. See Marbury v. Madison, 5 U.S. (1Cranch) 137, 176, 2 L.Ed. 60 (1803) (‘‘[The]original and supreme will organizes the gov-ernment, and assigns, to different depart-ments, their respective powers.’’). As a conse-quence, whether an act represents a validexercise of sovereign power depends on whoundertook it. See, e.g., A.L.A. Schechter Poul-try Corp. v. United States, 295 U.S. 495, 55

S.Ct. 837, 79 L.Ed. 1570 (1935); Bowsher v.Synar, 478 U.S. 714, 106 S.Ct. 3181, 92L.Ed.2d 583 (1986); Mistretta v. UnitedStates, 488 U.S. 361, 109 S.Ct. 647, 102L.Ed.2d 714 (1989); Commodity FuturesTrading Comm’n v. Schor, 478 U.S. 833, 106S.Ct. 3245, 92 L.Ed.2d 675 (1986). Reasoningfrom this proposition, it takes only a smallleap to recognize that the identity of the offi-cials who created the work is an importantfactor to consider in applying Banks.


er materials.’’ O.C.G.A. § 1-1-1 (emphasisadded). This language is telling. In variousdictionaries, the word ‘‘merge’’ is definedas meaning to combine or unite, often insuch a way that the constituent elementsof the merger lose their distinct identity orcharacteristics and become one. The Ran-dom House Dictionary of the English Lan-guage defines ‘‘merge’’ as ‘‘to lose or causeto lose identity by uniting or blending’’ and‘‘to combine or unite into a single unit.’’RANDOM HOUSE DICTIONARY OF THE ENGLISH

LANGUAGE 550 (1980). Similarly, Webster’sThird New International Dictionary de-fines ‘‘merge’’ as ‘‘to become combined intoone’’ and to ‘‘lose identity by absorption orintermingling.’’ WEBSTER’S THIRD NEW IN-

TERNATIONAL DICTIONARY 1414 (1981). Andthe Oxford English Dictionary variouslydefines ‘‘merge’’ as ‘‘to be absorbed anddisappear, to lose character or identity byabsorption into something else; to join orblend,’’ and ‘‘to combine to form a singleentity.’’ OXFORD ENGLISH DICTIONARY (3rded. 2001). The use of the word ‘‘merge’’thus carries with it strong connotations ofunification or combination of disparate ele-ments into a single whole in which thepreviously distinct attributes of each ele-ment become intermingled and shared.

The question then becomes, what is thenature of the new thing created when theGeorgia General Assembly explicitly choseto merge the annotations with statutorytext? Here too Georgia law supplies ananswer. In particular, Georgia law pro-vides that the merged text ‘‘shall be pub-lished by authority of the state TTT andwhen so published shall be known and maybe cited as the ‘Official Code of GeorgiaAnnotated.’ ’’ O.C.G.A. § 1-1-1. Thus, theproduct of the merger is an official statepublication, labelled and cited as the au-thoritative embodiment of the laws of theState of Georgia.

It of course remains true that portionsof the OCGA clearly carry the force of law

while O.C.G.A. § 1-1-7 disclaims any legaleffect in the annotations. Yet the signifi-cance of the legislature’s decision to‘‘merge’’ these two things into a singleedict remains. The Georgia legislature wasnot required to merge the annotations withthe statutes in order to create the OCGA,which it then stamped with the imprimaturof the State. But the bicameral legislaturechose to do so. By combining these twocomponents into a unified whole, their at-tributes have been intermingled and theirdistinct character altered. While this doesnot mean that the annotations, by virtue ofappearing alongside statutory text, aresuddenly possessed of binding legal effect,it does mean that their combination withthe statutory text imbues them with anofficial, legislative quality.

The statutory text, having been mergedwith these legislatively authored exposi-tions on the meaning of Georgia law, mustbe read in pari materia with them. Theannotations’ combination with the statutesmeans that any understanding of the stat-utory text arrived at without reference tothe annotations is axiomatically incom-plete. Because Georgia law tells us thatthe official codification of Georgia statutescontains not only statutory text but alsoannotations that have been combined andunified with the statutory text into a singleedict, a full understanding of the laws ofGeorgia necessarily includes an under-standing of the contents of the annotations.In this way, the annotations are clearlyladen with legal significance.

Their significance is strengthened fur-ther by the legislature’s decision to labelthe unified whole ‘‘Official.’’ The OCGA isnot simply one of a number of competingannotated codifications of Georgia laws. Itdoes not stand on equal footing withWest’s annotated Georgia code. Rather, itis the official codification of Georgia laws,stamped with the imprimatur of the state.


This status necessarily causes the annota-tions to cast a long shadow over how thestatutory portions of the OCGA are under-stood. Because these are the official com-ments to the Code, they are to be read asauthoritative in a way that annotations or-dinarily are not.

Indeed, demonstrating the importanceof the state’s decision to stamp the OCGAwith its imprimatur, the very first annota-tion in the very first section of the OCGAfavorably cites to a court case that warnsthat ‘‘[a]ttorneys who cite unofficial publi-cation of 1981 Code do so at their peril.’’O.C.G.A. § 1-1-1 (citing State of Ga. ex rel.General Assembly of Ga. v. Harrison Co.,548 F.Supp. 110 (N.D. Ga. 1982) ). Similar-ly, the importance the Georgia legislatureattached to its branding of the Code as‘‘Official’’ is further demonstrated by itsenactment of a law allowing the publisherof the ‘‘official CodeTTT to use the stateemblem on the cover of the publication,’’whereas all other private parties are pro-hibited from using the state emblem in anycontext. O.C.G.A. § 50-3-8. Thus, whilestamping the annotations with the state’simprimatur and labelling it official doesnot suddenly elevate the annotations to thestatus of binding law, it too enhances theiralready potent cachet in a way that isundeniable and also impossible to ignore.

Moreover, as we have already noted, theannotations are not simply adopted by thelegislature as an official reference work,but also, in a very meaningful sense, arewritten by the General Assembly -- a factthat further accentuates their legal signifi-cance. The annotations are not merely ex-positions on the meaning of statutes, butrather are official comments authored bythe same body that also wrote the statutes.Thus, it would be only natural for thecitizens of Georgia to consider the annota-tions as containing special insight into themeaning of the statutory text, and totherefore confer upon the annotations a

special status. Cf. Stigars v. State, 674A.2d 477, 483 (Del. 1996) (‘‘In the searchfor legislative intent, considerable weightis given to an official commentary writtenby the drafters of the statute.’’); Horen-kamp v. Van Winkle And Co., 402 F.3d1129, 1132 (11th Cir. 2005) (‘‘Although notbinding, the interpretations in the Adviso-ry Committee Notes [in the Federal Rulesof Civil Procedure] are nearly universallyaccorded great weight in interpreting fed-eral rules.’’); Tome v. United States, 513U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d574 (1995) (Scalia, J., dissenting) (‘‘Havingbeen prepared by a body of experts, the[official Notes to the Federal Rules ofEvidence] are assuredly persuasive schol-arly commentaries—ordinarily the mostpersuasive—concerning the meaning of theRules.’’); Schiavone v. Fortune, 477 U.S.21, 31, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986)(‘‘Although the Advisory Committee’s com-ments [to the Federal Rules of Civil Proce-dure] do not foreclose judicial consider-ation of the Rule’s validity and meaning,the construction given by the Committee is‘of weight.’ ’’); Auer v. Robbins, 519 U.S.452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79(1997) (giving substantial deference to anagency’s interpretation of a regulation thatthe agency itself authored).

Our view is reinforced by an examina-tion of how the annotations have beentreated by Georgia’s courts. In particular,the state courts frequently have character-ized OCGA comments as conclusive state-ments about statutory meaning and legis-lative intent. See, e.g., Jackson v. S. Pan &Shoring Co., 258 Ga. 401, 369 S.E.2d 239(1988) (explaining that ‘‘[t]he express in-tent of [the statutory provision] TTT is setout in the Comment to O.C.G.A. § 14-2-86’’); Cox v. Fowler, 279 Ga. 501, 614S.E.2d 59 (2005) (citing OCGA commentsas showing the ‘‘legal effect’’ of and ‘‘theGeneral Assembly’s intention’’ with respectto a statutory provision); Prodigy Cen-


ters/Atlanta No. 1 L.P. v. T-C Assocs.,Ltd., 269 Ga. 522, 501 S.E.2d 209 (1998)(citing OCGA comment as establishing thescope of a statutory definition); Quinn v.Cardiovascular Physicians, P.C., 254 Ga.216, 326 S.E.2d 460 (1985) (citing OCGAcomment as stating ‘‘the purpose’’ of astatutory provision); Chaney v. Burdett,274 Ga. 805, 560 S.E.2d 21 (2002) (citingOCGA comment as stating the purposebehind a revision to a statutory provision);Grace Bros. v. Farley Indus., Inc., 264 Ga.817, 450 S.E.2d 814 (1994) (citing OCGAcomment as defining the nature of a statu-tory remedy); Magner v. One Sec. Corp.,258 Ga. App. 520, 574 S.E.2d 555 (2002)(citing OCGA comment as giving the defi-nition of a statutory term); VSI Enterpris-es, Inc. v. Edwards, 238 Ga. App. 369, 518S.E.2d 765 (1999) (citing OCGA commentas stating the ‘‘intent of the legislature’’and what the ‘‘legislature expected’’ whenenacting a statutory provision); Leventhalv. Post Properties, Inc., 276 Ga. App. 742,624 S.E.2d 223 (2005) (citing OCGA com-ment as showing the meaning of statutoryprovision); Rosenfeld v. Rosenfeld, 286 Ga.App. 61, 648 S.E.2d 399 (2007) (citingOCGA comments as establishing the bur-den of proof that a party must carry undera statutory provision); Weir v. KirbyConst. Co., 213 Ga. App. 832, 446 S.E.2d186 (1994) (citing OCGA comment as stat-ing the purpose of a statutory provision).

[19] The nature and authoritativenessof the work, like the identity of the author,are material in determining whether thework is attributable to the constructiveauthorship of the People. After all, thedecision in Banks not only emphasized theidentity of the creator of the work but alsothe nature of the work, reasoning that thework was uncopyrightable precisely be-cause it was an ‘‘authentic exposition andinterpretation of the law [ ] binding [on]every citizen.’’ Banks, 128 U.S. at 253, 9S.Ct. 36.

Many other courts applying the rule inBanks, or a rule like it, have emphasizedthat the law, as an authoritative work thatgoverns people’s lives, is uncopyrightable.See, e.g., Nash v. Lathrop, 142 Mass. 29, 6N.E. 559 (1886) (‘‘The decisions and opin-ions of the justices are the authorized ex-positions and interpretations of the laws,which are binding upon all the citizensTTT

justice requires that all should have freeaccess to the opinions, and [ ] it is againstsound public policy to prevent this, or tosuppress and keep from the earliest knowl-edge of the public the statutes, or thedecisions and opinions of the justices.’’);West Publishing, 27 F. at 57 (‘‘But it is amaxim of universal application that everyman is presumed to know the law, and itwould seem inherent that freedom of ac-cess to the laws, or the official interpreta-tion of those laws, should be co-extensivewith the sweep of the maxim. Knowledgeis the only just condition of obedience.’’);State of Connecticut v. Gould, 34 F. 319,319 (C.C.N.D.N.Y. 1888) (‘‘[C]onsiderationsof public policy which, it is said, demand,in a country where every person is pre-sumed and required to know the law, thatthe fullest and earliest opportunity of ac-cess to the expositions of the judicial tribu-nals should be afforded to all.’’).

By way of contrast, a judge might createa work in his capacity as an employee ofthe government that bears little relation tohis role as an official expositor of the law.A speech delivered by a judge, dependingon the circumstances of the address, mayor may not count as a work created by agovernment employee. See Pub. AffairsAssocs., Inc. v. Rickover, 268 F.Supp. 444(D.D.C 1967). But such a work assuredlydoes not count as a work made in theexercise of the sovereign power to make orinterpret the law. A judicial speech is as-signed no authoritative weight -- it bindsno one and has no official effect on the lawor on how it is understood. Only those


works that derive from the legitimate ex-ercise of sovereign power, such as officialinterpretations of the law and the law it-self, are assigned authoritative weight.

Put another way, whether or not a workis assigned the authoritative weight associ-ated with law is deeply intertwined withthe question of whether the work wasmade by the agents of the People in thelegitimate exercise of delegated, sovereignpower. As Hamilton explained during theratification debates, ‘‘[n]o legislative act [ ]contrary to the Constitution, can be valid.To deny this, would be to affirm, that thedeputy is greater than his principal; thatthe servant is above his master; that therepresentatives of the people are superiorto the people themselves; that men actingby virtue of powers, may do not only whattheir powers do not authorize, but whatthey forbid.’’ THE FEDERALIST No. 78 at 466(Alexander Hamilton) (Clinton Rossitered., 1961). As a result, the authoritative-ness of a work is probative on the questionof whether a work is created in an exerciseof sovereign power, and is also probativeon the question of whether a work fallswithin the scope of the rule in Banks.Thus, in addition to whether the work wasprepared by a judicial or legislative body,an examination of the nature of the work,which is another way of asking whether itcarries authoritative weight, may indicatewhether the work is uncopyrightable.

These annotations carry authoritativeweight and therefore make it more likelythat the work is attributable to the con-structive authorship of the People. Quitesimply, they are much closer to resemblingthe judicially authored materials found inBanks than other works produced by stateemployees, such as the materials producedby the Court reporter in Callaghan.

C.

The final factor we consider is the pro-cess by which the annotations were creat-

ed. While the process by which the annota-tions were made into an official edict of theState of Georgia is not identical to theprocess by which the statutory provisionswere made into binding law, they are veryclosely related. As a result, like the identi-ty of the work’s creator and the nature ofthe work, the process also weighs in favorof the conclusion that the work is uncopy-rightable.

Both parties acknowledge that the Geor-gia General Assembly does not individuallyenact each separate annotation as part ofthe ordinary legislative process. In thisrespect the annotations are different thanthe statutory portions of the OCGA. Thestatutory portions of the Code are intro-duced as bills in the Georgia legislature,generally pass through the committee pro-cess where legislators can directly influ-ence the text of the bill, are voted on byboth Houses, and are signed by the Gover-nor. See Tracking a Bill Through the Gen-eral Assembly, http://www.legis.ga.gov/Legislation/en-US/default.aspx.

The enacted laws of a session of thelegislature are then ‘‘published in GeorgiaLaws as a collection of session laws, repre-senting all of the acts and resolutionspassed during that particular legislativesession.’’ Austin Williams, ‘‘ResearchingGeorgia Law,’’ 34 Ga. St. U.L. Rev. 741,761 (2015). Later, the laws are incorporat-ed into the OCGA. Id. Each year, theGeorgia legislature then votes to ‘‘reenactthe statutory portion of [the] Code asamended, in furtherance of the work of theCode Revision Commission,’’ thereby vot-ing on the statutory text in the form inwhich it has been incorporated into theOCGA. See, e.g., 2017 Ga. Laws 275, § 54;2016 Ga. Laws 625, § 54; 2015 Ga. Laws 9,§ 54.

Further, under Georgia law, it is theresponsibility of the Code Revision Com-mission to ‘‘prepare and have introduced at


each regular session of the General As-sembly one or more bills to reenact andmake corrections in the Official Code ofGeorgia Annotated.’’ O.C.G.A. § 28-9-5. Inthis way, the statutory portions of theOCGA are voted on at least twice, oncewhen they are voted on as individual billsafter having gone through the regular leg-islative process, and once as part of theGeorgia legislature’s vote to reenact theupdated OCGA as prepared by the Com-mission. By contrast, the annotations areprepared by the Commission outside of thenormal channels of the legislative processin the manner we have detailed, and arenot voted on individually in the way thatGeorgia session laws are.

However, it is also the case that theGeorgia General Assembly voted to adoptthe annotations as prepared by the Com-mission as an integral part of the officialCode. See O.C.G.A. § 1-1-1. Further, it didso through a legislative act that necessari-ly passed both Houses of the legislatureand was signed into law by the Governor.Moreover, and significant for our pur-poses, the General Assembly votes eachyear to amend the OCGA and reaffirm itsstatus as the official codification of Geor-gia’s laws.

Under the American system of govern-ment, the essential hallmarks of legislativeprocess are bicameralism and present-ment. See I.N.S. v. Chadha, 462 U.S. 919,103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); seealso Ga. Const. Art. V, § II, Para. IV; Ga.Const. Art. III, § V, Para. V. While legis-lative processes may ordinarily include theintroduction of an individual bill and itspassage through the relevant committeebefore it receives a vote of the full House,those are not the essential steps that en-dow the bill with its legal status. Rather,the vote of both Houses of the legislature,and presentment to an executive are thedefining moments in an exercise of thesovereign authority. This is so even when

the legislature adopts as its own a workauthored outside the normal channels ofthe legislative process. See Veeck, 293F.3d at 799 (‘‘Even when a governmentalbody consciously decides to enact proposedmodel building codes, it does so based onvarious legislative considerations, the sumof which produce its version of ‘the law.’ Inperforming their function, the lawmakersrepresent the public will, and the publicare the final ‘authors’ of the law.’’).

That the process by which the OCGAannotations were created is similar to theordinary process by which laws are enact-ed also is relevant to our inquiry. Theimportance of this consideration is appar-ent from well settled procedural mecha-nisms by which the power to make andinterpret the law is exercised, and fromthe observation that deviating from theprocess may deprive the edict of its legaleffect. As we’ve noted, bicameral passageof a bill and its presentment to the execu-tive are the ordinary means by which alegislative body exercises the sovereignpower entrusted to it. See Chadha, 462U.S. at 957, 103 S.Ct. 2764 (invalidating apurported exercise of the legislative powerthat failed to adhere to ‘‘the standardsprescribed in Article I’’ for the exercise ofsuch power); U.S. Const. art. I, § 7, cl. 2.Similarly, the judicial power to propoundthe meaning of the law must be exercisedaccording to established procedures. Inparticular, judges issue official interpreta-tions of the law as part of deciding a caseor controversy, after considering the argu-ments made by both parties to the case.See Hayburn’s Case, 2 U.S. (2 Dall.) 408, 1L.Ed. 436 (1792). An exposition on themeaning of a law, even if written by ajudge, would obviously not qualify as anexercise of the sovereign power to inter-pret law if it were written outside theordinary procedural channels by whichthat power is exercised. See Correspon-dence of the Justices (1793) (found in 3


Johnston, Correspondence and Public Pa-pers of John Jay 486–89 (1891) ).

In short, as is the case with the identityof the creator of the work and the natureof the work, fundamental principles thatgovern how sovereign power is exercisedunder a republican form of governmentsuggest that the process by which an edictis promulgated is probative as well on thequestion of whether a work was createdthrough the exercise of such power. Cf.Clinton v. City of New York, 524 U.S. 417,118 S.Ct. 2091, 141 L.Ed.2d 393 (1998)(invalidating the Line Item Veto Act onthe grounds that it impermissibly deviatedfrom the ‘‘finely wrought’’ constitutionalprocesses established for the exercise oflegislative power). Just as an action is notdeemed a legitimate exercise of sovereignpower if it is undertaken by the wrongofficial, so too it may be invalid if under-taken outside the proper procedural chan-nels. The converse follows naturally: if anaction is undertaken through the ordinaryprocedural channels by which the sover-eign power is exercised, it is more likelythat the action represents an exercise ofsovereign power.

The importance of process was suggest-ed long ago in Banks when the SupremeCourt emphasized that only those workscreated by judges in ‘‘the discharge oftheir judicial duties’’ are uncopyrigthable.Banks, 128 U.S. at 253, 9 S.Ct. 36. In otherwords, a work made by a judge outside thenormal channels by which judicial action istaken would not be subject to the rule inBanks. See Veeck, 293 F.3d at 799 (‘‘Thevery process of lawmaking demands andincorporates contributions by ‘the peo-ple.’ ’’). It is therefore fair to say that, justas the Court in Banks emphasized that thejustices of the Supreme Court of Ohio hadauthored the work in question ‘‘in the dis-charge of their judicial duties,’’ the Geor-gia legislature’s use of bicameralism andpresentment to adopt the annotations as

their own and merge them with statutorytext indicates that the work was createdby the legislators in the discharge of theirofficial duties. This too bolsters our conclu-sion

IV.

Our inquiry has focused on whether theofficial annotations represent a direct exer-cise of sovereign power, and are thereforeattributable to the constructive authorshipof the People. In making this determina-tion, we have compared the work in ques-tion to works that represent the prototypi-cal exercise of sovereign power, which is tosay statutes and official interpretations ofthe law. We have been guided by threefactors that may be regarded as the defin-ing characteristics of law -- the identity ofthe public official who created the work;the nature of the work; and the process bywhich the work was produced.

When the wrong public official exercisesa power delegated in the law, when thepower exercised is of a type not contem-plated by the law, or when the power isexercised outside the procedural channelsprescribed by the law, the act cannot beconsidered a valid exercise of the sover-eign power. From these principles, the cor-ollary logically follows: when the actiontaken is of the type entrusted by the Peo-ple to their agents, when it is wielded by apublic official whose assigned duties in-clude the exercise of sovereign power, andwhen it is exercised pursuant to constitu-tionally designated processes, it more like-ly represents an exercise of the sovereignauthority. The reasoning found in Banksalso suggests the importance of these fac-tors.

All of them point strongly toward theconclusion that the OCGA annotations arenot copyrightable. The OCGA annotationsare created by Georgia’s legislative body,which has been entrusted with exercising

1255U.S. v. MARGARITA GARCIACite as 906 F.3d 1255 (11th Cir. 2018)

sovereign power on behalf of the people ofGeorgia. While the annotations do not car-ry the force of law in the way that statutesor judicial opinions do, they are expresslygiven legal significance so that, while not‘‘law,’’ the annotations undeniably are au-thoritative sources on the meaning ofGeorgia statutes. The legislature hasstamped them ‘‘official’’ and has chosen tomake them an integral part of the officialcodification of Georgia’s laws. By wrappingthe annotations and the statutory text intoa single unified edict, the Georgia GeneralAssembly has made the connection be-tween the two inextricable and, thereby,ensured that obtaining a full understand-ing of the laws of Georgia requires havingunfettered access to the annotations. Fi-nally, the General Assembly’s annual adop-tion of the annotations as part of the lawsof Georgia is effected by the legislativeprocess -- namely bicameralism and pres-entment -- that is ordinarily reserved forthe exercise of sovereign power.

Thus, we conclude that the annotationsin the OCGA are attributable to the con-structive authorship of the People. To ad-vance the interests and effect the will ofthe People, their agents in the GeneralAssembly have chosen to create an officialexposition on the meaning of the laws ofGeorgia. In creating the annotations, thelegislators have acted as draftsmen givingvoice to the sovereign’s will. The resultingwork is intrinsically public domain materi-al, belonging to the People, and, as such,must be free for publication by all.

As a result, no valid copyright can sub-sist in these works. We, therefore, reversethe judgment of the district court, directthat judgment be entered for appellantPRO, vacate the district court’s ordergranting the State of Georgia injunctiverelief, and remand for further proceedingsconsistent with this opinion.

REVERSED IN PART, VACATED INPART AND REMANDED

,

UNITED STATES of America,Plaintiff-Appellee,

v.

Lourdes MARGARITA GARCIA,Defendant-Appellant.

No. 14-11845

United States Court of Appeals,Eleventh Circuit.

(October 19, 2018)

Background: Defendant was convicted inthe United States District Court for theSouthern District of Florida, No. 1:13-cr-20641-KMM-1, K. Michael Moore, ChiefJudge, of conspiring to defraud UnitedStates and making and subscribing falsepersonal income tax returns, and she ap-pealed.

Holdings: The Court of Appeals, Marcus,Circuit Judge, held that:

(1) introduction of inculpatory evidence inabsence of defendant and defensecounsel was not structural error givingrise to presumption for prejudice;

(2) district court did not commit plain er-ror in allowing government to intro-duce inculpatory testimony while bothdefendant and her lawyer were absent;

(3) indictment adequately alleged elementsof conspiracy;

(4) district court’s constructive amend-ment by instructing jury that conspira-cy to defraud included attempt was notplain error;

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