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(Slip Opinion) OCTOBER TERM, 2019 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

GEORGIA ET AL. v. PUBLIC.RESOURCE.ORG, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 18–1150. Argued December 2, 2019—Decided April 27, 2020 

The Copyright Act grants monopoly protection for “original works of authorship.” 17 U. S. C. §102(a). Under the government edicts doctrine, 

officials empowered to speak with the force of law cannot be the authors of the works they create in the course of their official duties.

The State of Georgia has one official code—the Official Code of Georgia Annotated (OCGA). That Code includes the text of every Georgia 

statute currently in force, as well as a set of non-binding annotations 

that appear beneath each statutory provision. The annotations typically include summaries of judicial opinions construing each provision,

summaries of pertinent opinions of the state attorney general, and a 

list of related law review articles and other reference materials. The 

OCGA is assembled by the Code Revision Commission, a state entity

composed mostly of legislators, funded through legislative branch appropriations, and staffed by the Office of Legislative Counsel. 

The annotations in the current OCGA were produced by Matthew 

Bender & Co., Inc., a division of the LexisNexis Group, pursuant to a 

work-for-hire agreement with the Commission. Under the agreement, 

Lexis drafts the annotations under the supervision of the Commission, 

which specifies what the annotations must include in exacting detail. 

The agreement also states that any copyright in the OCGA vests in the 

State of Georgia, acting through the Commission. 

 Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records and legal materials,

posted the OCGA online and distributed copies to various organizations and Georgia officials. After sending PRO several cease-and-desist letters, the Commission sued PRO for infringing its copyright in

the OCGA annotations. PRO counterclaimed, seeking a declaratory

judgment that the entire OCGA, including the annotations, fell in the 
 

 

 

2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Syllabus 

public domain. The District Court sided with the Commission, holding

that the annotations were eligible for copyright protection because 

they had not been enacted into law. The Eleventh Circuit reversed, 

rejecting the Commission’s copyright assertion under the government

edicts doctrine. 

Held: The OCGA annotations are ineligible for copyright protection.

Pp. 5–18.

(a) The government edicts doctrine developed from a trio of 19thcentury cases. In Wheaton v. Peters, 8 Pet. 591, the Court held that no 

reporter can have a copyright in the Court’s opinions and that the Justices cannot confer such a right on any reporter. In Banks v. Manchester, 128 U. S. 244, the Court held that judges could not assert copyright 

in “whatever work they perform in their capacity as judges”—be it “the

opinion or decision, the statement of the case and the syllabus or the 

head note.” Id., at 253. Finally, in Callaghan v. Myers, 128 U. S. 617, 

the Court reiterated that an official reporter cannot hold a copyright 

interest in opinions created by judges. But, confronting an issue not 

addressed in Wheaton or Banks, the Court upheld the reporter’s copyright interest in several explanatory materials that the reporter had 

created himself because they came from an author who had no authority to speak with the force of law. 

The animating principle behind the government edicts doctrine is 

that no one can own the law. The doctrine gives effect to that principle 

in the copyright context through construction of the statutory term 

“author.” For purposes of the Copyright Act, judges cannot be the “author[s]” of “whatever work they perform in their capacity” as lawmakers. Banks, 128 U. S., at 253. Because legislators, like judges, have

the authority to make law, it follows that they, too, cannot be “authors.” And, as with judges, the doctrine applies to whatever work 

legislators perform in their capacity as legislators, including explanatory and procedural materials they create in the discharge of their legislative duties. Pp. 5–9.

(b) Applying that framework, Georgia’s annotations are not copyrightable. First, the author of the annotations qualifies as a legislator. 

Under the Copyright Act, the sole “author” of the annotations is the

Commission, 17 U. S. C. §201(b), which functions as an arm of the 

Georgia Legislature in producing the annotations. Second, the Commission creates the annotations in the discharge of its legislative duties. Pp. 9–11.

(c) Georgia argues that excluding the OCGA annotations from copyright protection conflicts with the text of the Copyright Act. First, it 

notes that §101 lists “annotations” among the kinds of works eligible

for copyright protection. That provision, however, refers only to “annotations . . . which . . . represent an original work of authorship.” 
 

Cite as: 590 U. S. ____ (2020) 3 

Syllabus 

(Emphasis added.) Georgia’s annotations do not fit that description

because they are prepared by a legislative body that cannot be deemed

the “author” of the works it creates in its official capacity. Second, 

Georgia draws a negative inference from the fact that the Act excludes

from copyright protection works prepared by Federal Government officials, without establishing a similar rule for State officials. §§101, 

105. That rule, however, applies to all federal officials, regardless of

the nature and scope of their duties. It does not suggest an intent to 

displace the much narrower government edicts doctrine with respect 

to the States. 

Moving on from the text, Georgia invokes what it views as the official position of the Copyright Office, as reflected in the Compendium 

of U. S. Copyright Office Practices. The Compendium, however, is a 

non-binding administrative manual and is largely consistent with this

Court’s position. Georgia also appeals to copyright policy, but such 

requests should be addressed to Congress, not the courts. 

Georgia attempts to frame the government edicts doctrine to focus

exclusively on whether a particular work has the force of law. But that 

understanding cannot be squared with precedent—especially Banks. 

Moreover, Georgia’s conception of the doctrine as distinguishing between different categories of content with different effects has less of 

a textual footing than the traditional formulation, which focuses on the

identity of the author. Georgia’s characterization of the OCGA annotations as non-binding and non-authoritative undersells the practical 

significance of the annotations to litigants and citizens. And its approach would logically permit States to hide all non-binding judicial

and legislative work product—including dissents and legislative history—behind a paywall. Pp. 11–18. 

906 F. 3d 1229, affirmed. 

ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., 

filed a dissenting opinion, in which ALITO, J., joined, and in which 

BREYER, J., joined as to all but Part II–A and footnote 6. GINSBURG, J., 

filed a dissenting opinion, in which BREYER, J., joined. 
 

 

 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 18–1150 

GEORGIA, ET AL., PETITIONERS v. 

PUBLIC.RESOURCE.ORG, INC. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[April 27, 2020] 

CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

The Copyright Act grants potent, decades-long monopoly

protection for “original works of authorship.” 17 U. S. C. 

§102(a). The question in this case is whether that protection extends to the annotations contained in Georgia’s

official annotated code. 

We hold that it does not. Over a century ago, we recognized a limitation on copyright protection for certain 

government work product, rooted in the Copyright Act’s 

“authorship” requirement. Under what has been dubbed 

the government edicts doctrine, officials empowered to 

speak with the force of law cannot be the authors of—and 

therefore cannot copyright—the works they create in the 

course of their official duties. 

We have previously applied that doctrine to hold that

non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to 

make and interpret the law. See Banks v. Manchester, 128 

U. S. 244 (1888). We now recognize that the same logic applies to non-binding, explanatory legal materials created by 
 

2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

a legislative body vested with the authority to make law. 

Because Georgia’s annotations are authored by an arm

of the legislature in the course of its legislative duties, the

government edicts doctrine puts them outside the reach of

copyright protection. 

I 

A 

The State of Georgia has one official code—the “Official 

Code of Georgia Annotated,” or OCGA. The first page of 

each volume of the OCGA boasts the State’s official seal and 

announces to readers that it is “Published Under Authority 

of the State.” 

The OCGA includes the text of every Georgia statute

currently in force, as well as various non-binding supplementary materials. At issue in this case is a set of annotations that appear beneath each statutory provision. The 

annotations generally include summaries of judicial decisions applying a given provision, summaries of any pertinent opinions of the state attorney general, and a list of related law review articles and similar reference materials. 

In addition, the annotations often include editor’s notes 

that provide information about the origins of the statutory 

text, such as whether it derives from a particular judicial

decision or resembles an older provision that has been construed by Georgia courts. See, e.g., OCGA §§51–1–1, 53–4– 

2 (2019).

The OCGA is assembled by a state entity called the Code

Revision Commission. In 1977, the Georgia Legislature

established the Commission to recodify Georgia law for the 

first time in decades. The Commission was (and remains)

tasked with consolidating disparate bills into a single Code 

for reenactment by the legislature and contracting with a 

third party to produce the annotations. A majority of the

Commission’s 15 members must be members of the Georgia 
 

Cite as: 590 U. S. ____ (2020) 3 

Opinion of the Court 

Senate or House of Representatives. The Commission receives funding through appropriations “provided for the legislative branch of state government.” OCGA §28–9–2(c)

(2018). And it is staffed by the Office of Legislative Counsel, which is obligated by statute to provide services “for the 

legislative branch of government.” §§28–4–3(c)(4), 28–9–4.

Under the Georgia Constitution, the Commission’s role in

compiling the statutory text and accompanying annotations 

falls “within the sphere of legislative authority.” Harrison 

Co. v. Code Revision Comm’n, 244 Ga. 325, 330, 260 S. E. 

2d 30, 34 (1979).

Each year, the Commission submits its proposed statutory text and accompanying annotations to the legislature 

for approval. The legislature then votes to do three things:

(1) “enact[ ]” the “statutory portion of the codification of 

Georgia laws”; (2) “merge[ ]” the statutory portion “with

[the] annotations”; and (3) “publish[ ]” the final merged 

product “by authority of the state” as “the ‘Official Code

of Georgia Annotated.’” OCGA §1–1–1 (2019); see Code 

Revision Comm’n v. Public.Resource.Org, Inc., 906 F. 3d 

1229, 1245, 1255 (CA11 2018); Tr. of Oral Arg. 8. 

The annotations in the current OCGA were prepared in

the first instance by Matthew Bender & Co., Inc., a division 

of the LexisNexis Group, pursuant to a work-for-hire agreement with the Commission. The agreement between Lexis

and the Commission states that any copyright in the OCGA

vests exclusively in “the State of Georgia, acting through

the Commission.” App. 567. Lexis and its army of researchers perform the lion’s share of the work in drafting the annotations, but the Commission supervises that work and 

specifies what the annotations must include in exacting detail. See 906 F. 3d, at 1243–1244; App. 269–278, 286–427 

(Commission specifications). Under the agreement, Lexis 

enjoys the exclusive right to publish, distribute, and sell the 

OCGA. In exchange, Lexis has agreed to limit the price it

may charge for the OCGA and to make an unannotated 
 

 

4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

version of the statutory text available to the public online 

for free. A hard copy of the complete OCGA currently retails for $412.00. 

B 

Public.Resource.Org (PRO) is a nonprofit organization

that aims to facilitate public access to government records 

and legal materials. Without permission, PRO posted a digital version of the OCGA on various websites, where it could 

be downloaded by the public without charge. PRO also 

distributed copies of the OCGA to various organizations 

and Georgia officials.

In response, the Commission sent PRO several ceaseand-desist letters asserting that PRO’s actions constituted

unlawful copyright infringement. When PRO refused to 

halt its distribution activities, the Commission sued PRO 

on behalf of the Georgia Legislature and the State of Georgia for copyright infringement. The Commission limited its 

assertion of copyright to the annotations described above; it 

did not claim copyright in the statutory text or numbering.

PRO counterclaimed, seeking a declaratory judgment that

the entire OCGA, including the annotations, fell in the 

public domain.

The District Court sided with the Commission. The 

Court acknowledged that the annotations in the OCGA presented “an unusual case because most official codes are not 

annotated and most annotated codes are not official.” Code 

Revision Comm’n v. Public.Resource.Org, Inc., 244 F. Supp. 

3d 1350, 1356 (ND Ga. 2017). But, ultimately, the Court

concluded that the annotations were eligible for copyright

protection because they were “not enacted into law” and

lacked “the force of law.” Ibid. In light of that conclusion, 

the Court granted partial summary judgment to the Commission and entered a permanent injunction requiring PRO 

to cease its distribution activities and to remove the digital

copies of the OCGA from the internet. 
 

Cite as: 590 U. S. ____ (2020) 5 

Opinion of the Court 

The Eleventh Circuit reversed. 906 F. 3d 1229. The 

Court began by reviewing the three 19th-century cases in 

which we articulated the government edicts doctrine. See 

Wheaton v. Peters, 8 Pet. 591 (1834); Banks v. Manchester, 

128 U. S. 244 (1888); Callaghan v. Myers, 128 U. S. 617 

(1888). The Court understood those cases to establish a 

“rule” based on an interpretation of the statutory term “author” that “works created by courts in the performance of 

their official duties did not belong to the judges” but instead

fell “in the public domain.” 906 F. 3d, at 1239. In the 

Court’s view, that rule “derive[s] from first principles about

the nature of law in our democracy.” Ibid. In a democracy,

the Court reasoned, “the People” are “the constructive authors” of the law, and judges and legislators are merely 

“draftsmen . . . exercising delegated authority.” Ibid. The 

Court therefore deemed the “ultimate inquiry” to be

whether a work is “attributable to the constructive authorship of the People.” Id., at 1242. The Court identified three 

factors to guide that inquiry: “the identity of the public official who created the work; the nature of the work; and the 

process by which the work was produced.” Id., at 1254. The 

Court found that each of those factors cut in favor of treating the OCGA annotations as government edicts authored 

by the People. It therefore rejected the Commission’s assertion of copyright, vacated the injunction against PRO, and

directed that judgment be entered for PRO.

We granted certiorari. 588 U. S. ___ (2019). 

II 

We hold that the annotations in Georgia’s Official Code

are ineligible for copyright protection, though for reasons 

distinct from those relied on by the Court of Appeals. A 

careful examination of our government edicts precedents

reveals a straightforward rule based on the identity of the 

author. Under the government edicts doctrine, judges—

and, we now confirm, legislators—may not be considered 
 

 

6 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

the “authors” of the works they produce in the course of

their official duties as judges and legislators. That rule 

applies regardless of whether a given material carries the 

force of law. And it applies to the annotations here because 

they are authored by an arm of the legislature in the course

of its official duties. 

A 

We begin with precedent. The government edicts doctrine traces back to a trio of cases decided in the 19th century. In this Court’s first copyright case, Wheaton v. Peters, 

8 Pet. 591 (1834), the Court’s third Reporter of Decisions, 

Wheaton, sued the fourth, Peters, unsuccessfully asserting 

a copyright interest in the Justices’ opinions. Id., at 617 

(argument). In Wheaton’s view, the opinions “must have

belonged to some one” because “they were new, original,”

and much more “elaborate” than law or custom required. 

Id., at 615. Wheaton argued that the Justices were the authors and had assigned their ownership interests to him

through a tacit “gift.” Id., at 614. The Court unanimously 

rejected that argument, concluding that “no reporter has or 

can have any copyright in the written opinions delivered by 

this court” and that “the judges thereof cannot confer on 

any reporter any such right.” Id., at 668 (opinion).

That conclusion apparently seemed too obvious to adorn 

with further explanation, but the Court provided one a half 

century later in Banks v. Manchester, 128 U. S. 244 (1888). 

That case concerned whether Wheaton’s state-court counterpart, the official reporter of the Ohio Supreme Court, 

held a copyright in the judges’ opinions and several nonbinding explanatory materials prepared by the judges. Id., 

at 249–251. The Court concluded that he did not, explaining that “the judge who, in his judicial capacity, prepares

the opinion or decision, the statement of the case and the 

syllabus or head note” cannot “be regarded as their author 

or their proprietor, in the sense of [the Copyright Act].” Id., 
 

 

 

Cite as: 590 U. S. ____ (2020) 7 

Opinion of the Court 

at 253. Pursuant to “a judicial consensus” dating back to 

Wheaton, judges could not assert copyright in “whatever

work they perform in their capacity as judges.” Banks, 128 

U. S, at 253 (emphasis in original). Rather, “[t]he whole 

work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every

citizen, is free for publication to all.” Ibid. (citing Nash v. 

Lathrop, 142 Mass. 29, 6 N. E. 559 (1886)). 

In a companion case decided later that Term, Callaghan 

v. Myers, 128 U. S. 617 (1888), the Court identified an important limiting principle. As in Wheaton and Banks, 

the Court rejected the claim that an official reporter held a 

copyright interest in the judges’ opinions. But, resolving an 

issue not addressed in Wheaton and Banks, the Court upheld the reporter’s copyright interest in several explanatory 

materials that the reporter had created himself: headnotes, 

syllabi, tables of contents, and the like. Callaghan, 128 

U. S., at 645, 647. Although these works mirrored the

judge-made materials rejected in Banks, they came from an

author who had no authority to speak with the force of law.

Because the reporter was not a judge, he was free to “obtain[ ] a copyright” for the materials that were “the result 

of his [own] intellectual labor.” 128 U. S., at 647. 

These cases establish a straightforward rule: Because 

judges are vested with the authority to make and interpret 

the law, they cannot be the “author” of the works they prepare “in the discharge of their judicial duties.” Banks, 128 

U. S., at 253. This rule applies both to binding works (such 

as opinions) and to non-binding works (such as headnotes 

and syllabi). Ibid. It does not apply, however, to works created by government officials (or private parties) who lack

the authority to make or interpret the law, such as court 

reporters. Compare ibid. with Callaghan, 128 U. S., at 647. 

The animating principle behind this rule is that no one 

can own the law. “Every citizen is presumed to know the 

law,” and “it needs no argument to show . . . that all should 
 

 

 

 

 

8 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

have free access” to its contents. Nash, 142 Mass., at 35, 6 

N. E., at 560 (cited by Banks, 128 U. S., at 253–254). Our 

cases give effect to that principle in the copyright context

through construction of the statutory term “author.” Id., at 

253.1 Rather than attempting to catalog the materials 

that constitute “the law,” the doctrine bars the officials 

responsible for creating the law from being considered the 

“author[s]” of “whatever work they perform in their capacity” as lawmakers. Ibid. (emphasis added). Because these 

officials are generally empowered to make and interpret

law, their “whole work” is deemed part of the “authentic exposition and interpretation of the law” and must be “free for

publication to all.” Ibid. 

If judges, acting as judges, cannot be “authors” because of

their authority to make and interpret the law, it follows

that legislators, acting as legislators, cannot be either.

Courts have thus long understood the government edicts

doctrine to apply to legislative materials. See, e.g., Nash, 

142 Mass., at 35, 6 N. E., at 560 (judicial opinions and statutes stand “on substantially the same footing” for purposes

of the government edicts doctrine); Howell v. Miller, 91 F. 

129, 130–131, 137–138 (CA6 1898) (Harlan, J., Circuit Justice, joined by then-Circuit Judge Taft) (analyzing statutes

and supplementary materials under Banks and Callaghan

and concluding that the materials were copyrightable because they were prepared by a private compiler). 

Moreover, just as the doctrine applies to “whatever work

[judges] perform in their capacity as judges,” Banks, 128 

—————— 1The Copyright Act of 1790 granted copyright protection to “the author

and authors” of qualifying works. Act of May 31, 1790, §1, 1 Stat. 124. 

This author requirement appears in the current Copyright Act at 

§102(a), which limits protection to “original works of authorship.” 17 

U. S. C. §102(a) (emphasis added); see also §201(a) (copyright “vests initially in the author or authors of the work”). 
Cite as: 590 U. S. ____ (2020) 9 

Opinion of the Court 

U. S., at 253, it applies to whatever work legislators perform in their capacity as legislators. That of course includes 

final legislation, but it also includes explanatory and procedural materials legislators create in the discharge of their

legislative duties. In the same way that judges cannot be

the authors of their headnotes and syllabi, legislators cannot be the authors of (for example) their floor statements,

committee reports, and proposed bills. These materials are 

part of the “whole work done by [legislators],” so they must

be “free for publication to all.” Ibid. 

Under our precedents, therefore, copyright does not vest 

in works that are (1) created by judges and legislators (2) in

the course of their judicial and legislative duties. 

B 

1 

Applying that framework, Georgia’s annotations are not 

copyrightable. The first step is to examine whether their

purported author qualifies as a legislator. 

As we have explained, the annotations were prepared in

the first instance by a private company (Lexis) pursuant to

a work-for-hire agreement with Georgia’s Code Revision 

Commission. The Copyright Act therefore deems the Commission the sole “author” of the work. 17 U. S. C. §201(b). 

Although Lexis expends considerable effort preparing the

annotations, for purposes of copyright that labor redounds

to the Commission as the statutory author. Georgia agrees

that the author is the Commission. Brief for Petitioners 25. 

The Commission is not identical to the Georgia Legislature, but functions as an arm of it for the purpose of producing the annotations. The Commission is created by the legislature, for the legislature, and consists largely of

legislators. The Commission receives funding and staff designated by law for the legislative branch. Significantly, the

annotations the Commission creates are approved by the

legislature before being “merged” with the statutory text 
 

10 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

and published in the official code alongside that text at the

legislature’s direction. OCGA §1–1–1; see 906 F. 3d, at

1245, 1255; Tr. of Oral Arg. 8.

If there were any doubt about the link between the Commission and the legislature, the Georgia Supreme Court 

has dispelled it by holding that, under the Georgia Constitution, “the work of the Commission; i.e., selecting a publisher and contracting for and supervising the codification 

of the laws enacted by the General Assembly, including

court interpretations thereof, is within the sphere of legislative authority.” Harrison Co., 244 Ga., at 330, 260 S. E. 2d, 

at 34 (emphasis added). That holding is not limited to the

Commission’s role in codifying the statutory text. The Commission’s “legislative authority” specifically includes its

“codification of . . . court interpretations” of the State’s laws. 

Ibid. Thus, as a matter of state law, the Commission wields 

the legislature’s authority when it works with Lexis to produce the annotations. All of this shows that the Commission serves as an extension of the Georgia Legislature in

preparing and publishing the annotations. And it helps

explain why the Commission brought this suit asserting 

copyright in the annotations “on behalf of and for the 

benefit of ” the Georgia Legislature and the State of 

Georgia. App. 20.2 

2 

The second step is to determine whether the Commission 

creates the annotations in the “discharge” of its legislative 

“duties.” Banks, 128 U. S., at 253. It does. Although the

annotations are not enacted into law through bicameralism

and presentment, the Commission’s preparation of the an-

—————— 2 JUSTICE THOMAS does not dispute that the Commission is an extension of the legislature; he instead faults us for highlighting the multiple

features of the Commission that make clear that this is so. See post, at 

16 (dissenting opinion). 
 

Cite as: 590 U. S. ____ (2020) 11 

Opinion of the Court 

notations is under Georgia law an act of “legislative authority,” Harrison Co., 244 Ga., at 330, 260 S. E. 2d, at 34, and 

the annotations provide commentary and resources that the 

legislature has deemed relevant to understanding its laws.

Georgia and JUSTICE GINSBURG emphasize that the annotations do not purport to provide authoritative explanations

of the law and largely summarize other materials, such as 

judicial decisions and law review articles. See post, at 3–4 

(dissenting opinion). But that does not take them outside 

the exercise of legislative duty by the Commission and legislature. Just as we have held that the “statement of the 

case and the syllabus or head note” prepared by judges fall 

within the “work they perform in their capacity as judges,” 

Banks, 128 U. S., at 253, so too annotations published by 

legislators alongside the statutory text fall within the work 

legislators perform in their capacity as legislators. 

In light of the Commission’s role as an adjunct to the legislature and the fact that the Commission authors the 

annotations in the course of its legislative responsibilities,

the annotations in Georgia’s Official Code fall within the

government edicts doctrine and are not copyrightable. 

III 

Georgia resists this conclusion on several grounds. At the 

outset, Georgia advances two arguments for why, in its

view, excluding the OCGA annotations from copyright

protection conflicts with the text of the Copyright Act. Both 

are unavailing.

First, Georgia notes that §101 of the Act specifically lists

“annotations” among the kinds of works eligible for copyright protection. But that provision refers only to “annotations . . . which . . . represent an original work of authorship.” 17 U. S. C. §101 (emphasis added). The whole point 

of the government edicts doctrine is that judges and legislators cannot serve as authors when they produce works in

their official capacity. While the reference to “annotations” 
 

12 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

in §101 may help explain why supplemental, explanatory 

materials are copyrightable when prepared by a private

party, or a non-lawmaking official like the reporter in Callaghan, it does not speak to whether those same materials 

are copyrightable when prepared by a judge or a legislator.

In the same way that judicial materials are ineligible for

protection even though they plainly qualify as “[l]iterary 

works . . . expressed in words,” ibid., legislative materials

are ineligible for protection even if they happen to fit the 

description of otherwise copyrightable “annotations.”

Second, Georgia draws a negative inference from the fact 

that the Act excludes from copyright protection “work[s]

prepared by an officer or employee of the United States 

Government as part of that person’s official duties” and 

does not establish a similar rule for the States. §101; see 

also §105. But the bar on copyright protection for federal 

works sweeps much more broadly than the government 

edicts doctrine does. That bar applies to works created by

all federal “officer[s] or employee[s],” without regard for the 

nature of their position or scope of their authority. Whatever policy reasons might justify the Federal Government’s 

decision to forfeit copyright protection for its own proprietary works, that federal rule does not suggest an intent to

displace the much narrower government edicts doctrine 

with respect to the States. That doctrine does not apply to

non-lawmaking officials, leaving States free to assert copyright in the vast majority of expressive works they produce,

such as those created by their universities, libraries, 

tourism offices, and so on. 

More generally, Georgia suggests that we should resist 

applying our government edicts precedents to the OCGA

annotations because our 19th-century forebears interpreted the statutory term author by reference to “public

policy”—an approach that Georgia believes is incongruous

with the “modern era” of statutory interpretation. Brief for 

Petitioners 21 (internal quotation marks omitted). But we 
 

Cite as: 590 U. S. ____ (2020) 13 

Opinion of the Court 

are particularly reluctant to disrupt precedents interpreting language that Congress has since reenacted. As we 

explained last Term in Helsinn Healthcare S. A. v. Teva 

Pharmaceuticals USA, Inc., 586 U. S. ___ (2019), when 

Congress “adopt[s] the language used in [an] earlier act,” 

we presume that Congress “adopted also the construction

given by this Court to such language, and made it a part of 

the enactment.” Id., at ___ (slip op., at 7) (quoting Shapiro 

v. United States, 335 U. S. 1, 16 (1948)). A century of cases

have rooted the government edicts doctrine in the word “author,” and Congress has repeatedly reused that term without abrogating the doctrine. The term now carries this 

settled meaning, and “critics of our ruling can take their

objections across the street, [where] Congress can correct

any mistake it sees.” Kimble v. Marvel Entertainment, 

LLC, 576 U. S. 446, 456 (2015).3 

Moving on from the text, Georgia invokes what it views

as the official position of the Copyright Office, as reflected

in the Compendium of U. S. Copyright Office Practices 

(Compendium). But, as Georgia concedes, the Compendium is a non-binding administrative manual that at most 

—————— 3 JUSTICE THOMAS disputes the applicability of the Helsinn Healthcare 

presumption because States have asserted copyright in statutory annotations over the years notwithstanding our government edicts precedents. Post, at 11–12. In JUSTICE THOMAS’s view, those assertions prove

that our precedents could not have provided clear enough guidance for 

Congress to incorporate. But that inference from state behavior proves 

too much. The same study cited by JUSTICE THOMAS to support a practice

of claiming copyright in non-binding annotations also reports that “many 

states claim copyright interest in their primary law materials,” including 

statutes and regulations. Dmitrieva, State Ownership of Copyrights in 

Primary Law Materials, 23 Hastings Com. & Entertainment L. J. 81, 109

(2000) (emphasis added). JUSTICE THOMAS concedes that such assertions 

are plainly foreclosed by our government edicts precedents. Post, at 4. 

That interested parties have pursued ambitious readings of our precedents does not mean those precedents are incapable of providing meaningful guidance to us or to Congress. 
 

14 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

merits deference under Skidmore v. Swift & Co., 323 U. S. 

134 (1944). That means we must follow it only to the extent 

it has the “power to persuade.” Id., at 140. Because our 

precedents answer the question before us, we find any competing guidance in the Compendium unpersuasive. 

In any event, the Compendium is largely consistent with

our decision. Drawing on Banks, it states that, “[a]s a matter of longstanding public policy, the U. S. Copyright Office 

will not register a government edict that has been issued by

any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials.” Compendium §313.6(C)(2) (rev. 3d ed. 2017) 

(emphasis added). And, under Banks, what counts as a 

“similar” material depends on what kind of officer created

the material (i.e., a judge) and whether the officer created

it in the course of official (i.e., judicial) duties. See Compendium §313.6(C)(2) (quoting Banks, 128 U. S., at 253, for the 

proposition that copyright cannot vest “in the products of

the labor done by judicial officers in the discharge of their 

judicial duties”).

The Compendium goes on to observe that “the Office may 

register annotations that summarize or comment upon 

legal materials . . . unless the annotations themselves have 

the force of law.” Compendium §313.6(C)(2). But that 

broad statement—true of annotations created by officials

such as court reporters that lack the authority to make or

interpret the law—does not engage with the critical issue of 

annotations created by judges or legislators in their official 

capacities. Because the Compendium does not address that

question and otherwise echoes our government edicts precedents, it is of little relevance here. 

Georgia also appeals to the overall purpose of the Copyright Act to promote the creation and dissemination of 

creative works. Georgia submits that, without copyright 

protection, Georgia and many other States will be unable to 
 

 

 

Cite as: 590 U. S. ____ (2020) 15 

Opinion of the Court 

induce private parties like Lexis to assist in preparing affordable annotated codes for widespread distribution. That 

appeal to copyright policy, however, is addressed to the 

wrong forum. As Georgia acknowledges, “[I]t is generally 

for Congress, not the courts, to decide how best to pursue 

the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 

U. S. 186, 212 (2003). And that principle requires adherence to precedent when, as here, we have construed the

statutory text and “tossed [the ball] into Congress’s court,

for acceptance or not as that branch elects.” Kimble, 576 

U. S., at 456. 

Turning to our government edicts precedents, Georgia insists that they can and should be read to focus exclusively 

on whether a particular work has “the force of law.” Brief 

for Petitioners 32 (capitalization deleted). JUSTICE THOMAS 

appears to endorse the same view. See post, at 4. But that 

framing has multiple flaws. 

Most obviously, it cannot be squared with the reasoning 

or results of our cases—especially Banks. Banks, following 

Wheaton and the “judicial consensus” it inspired, denied

copyright protection to judicial opinions without excepting 

concurrences and dissents that carry no legal force. 128 

U. S., at 253 (emphasis deleted). As every judge learns the

hard way, “comments in [a] dissenting opinion” about legal 

principles and precedents “are just that: comments in a dissenting opinion.” Railroad Retirement Bd. v. Fritz, 449 

U. S. 166, 177, n. 10 (1980). Yet such comments are covered 

by the government edicts doctrine because they come from 

an official with authority to make and interpret the law. 

Indeed, Banks went even further and withheld copyright 

protection from headnotes and syllabi produced by judges.

128 U. S., at 253. Surely these supplementary materials do

not have the force of law, yet they are covered by the doctrine. The simplest explanation is the one Banks provided: 

These non-binding works are not copyrightable because of 

who creates them—judges acting in their judicial capacity. 
 

 

 

16 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

See ibid. 

The same goes for non-binding legislative materials produced by legislative bodies acting in a legislative capacity.

There is a broad array of such works ranging from floor 

statements to proposed bills to committee reports. Under 

the logic of Georgia’s “force of law” test, States would own

such materials and could charge the public for access to

them. 

Furthermore, despite Georgia’s and JUSTICE THOMAS’s 

purported concern for the text of the Copyright Act, their

conception of the government edicts doctrine has less of a 

textual footing than the traditional formulation. The textual basis for the doctrine is the Act’s “authorship” requirement, which unsurprisingly focuses on—the author. 

JUSTICE THOMAS urges us to dig deeper to “the root” of our

government edicts precedents. Post, at 5. But, in our view, 

the text is the root. The Court long ago interpreted the

word “author” to exclude officials empowered to speak with

the force of law, and Congress has carried that meaning forward in multiple iterations of the Copyright Act. This textual foundation explains why the doctrine distinguishes between some authors (who are empowered to speak with the 

force of law) and others (who are not). Compare Callaghan, 

128 U. S., at 647, with Banks, 128 U. S., at 253. But the 

Act’s reference to “authorship” provides no basis for Georgia’s rule distinguishing between different categories of

content with different effects.4 

—————— 4 Instead of accepting our predecessors’ textual reasoning at face value, 

JUSTICE THOMAS conjures a trinity of alternative “origin[s] and justification[s]” for the government edicts doctrine that the Court might have had 

in mind. See post, at 5–7. Without committing to one or all of these 

possibilities, JUSTICE THOMAS suggests that each would yield a rule that 

requires federal courts to pick out the subset of judicial and legislative 

materials that independently carry the force of law. But a Court motivated by JUSTICE THOMAS’s three-fold concerns might just as easily have 

read them as supporting a rule that prevents the officials responsible for 
 

 

 

Cite as: 590 U. S. ____ (2020) 17 

Opinion of the Court 

Georgia minimizes the OCGA annotations as non-binding and non-authoritative, but that description undersells 

their practical significance. Imagine a Georgia citizen interested in learning his legal rights and duties. If he reads 

the economy-class version of the Georgia Code available 

online, he will see laws requiring political candidates to pay 

hefty qualification fees (with no indigency exception), criminalizing broad categories of consensual sexual conduct,

and exempting certain key evidence in criminal trials 

from standard evidentiary limitations—with no hint 

that important aspects of those laws have been held unconstitutional by the Georgia Supreme Court. See OCGA 

§§21–2–131, 16–6–2, 16–6–18, 16–15–9 (available at 

www.legis.ga.gov). Meanwhile, first-class readers with

access to the annotations will be assured that these laws 

are, in crucial respects, unenforceable relics that the legislature has not bothered to narrow or repeal. See §§21–2–

131, 16–6–2, 16–6–18, 16–15–9 (available at https://store.

lexisnexis.com/products/official-code-of-georgia-annotatedskuSKU6647 for $412.00). 

If everything short of statutes and opinions were copyrightable, then States would be free to offer a whole range

of premium legal works for those who can afford the extra 

benefit. A State could monetize its entire suite of legislative 

history. With today’s digital tools, States might even 

launch a subscription or pay-per-law service.

There is no need to assume inventive or nefarious behavior for these concerns to become a reality. Unlike other 

forms of intellectual property, copyright protection is both

instant and automatic. It vests as soon as a work is captured in a tangible form, triggering a panoply of exclusive 

—————— 

creating binding materials from qualifying as an “author.” Regardless, 

it is more “[]consistent with the judicial role” to apply the reasoning and 

results the Court voted on and committed to writing than to speculate 

about what practical considerations our predecessors “may have had 

. . . in mind,” what history “may [have] suggest[ed],” or what constitutional concerns “may have animated” our government edicts precedents. 

Ibid. 
 

 

18 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

Opinion of the Court 

rights that can last over a century. 17 U. S. C. §§102, 106, 

302. If Georgia were correct, then unless a State took the 

affirmative step of transferring its copyrights to the public 

domain, all of its judges’ and legislators’ non-binding legal 

works would be copyrighted. And citizens, attorneys, nonprofits, and private research companies would have to cease 

all copying, distribution, and display of those works or risk 

severe and potentially criminal penalties. §§501–506. 

Some affected parties might be willing to roll the dice with 

a potential fair use defense. But that defense, designed to 

accommodate First Amendment concerns, is notoriously

fact sensitive and often cannot be resolved without a trial. 

Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises, 

471 U. S. 539, 552, 560–561 (1985). The less bold among us

would have to think twice before using official legal works 

that illuminate the law we are all presumed to know and 

understand. 

Thankfully, there is a clear path forward that avoids 

these concerns—the one we are already on. Instead of examining whether given material carries “the force of law,”

we ask only whether the author of the work is a judge or a 

legislator. If so, then whatever work that judge or legislator 

produces in the course of his judicial or legislative duties is

not copyrightable. That is the framework our precedents 

long ago established, and we adhere to those precedents 

today. 

* * * 

For the foregoing reasons, we affirm the judgment of the

Eleventh Circuit. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 18–1150 

GEORGIA, ET AL., PETITIONERS v. 

PUBLIC.RESOURCE.ORG, INC. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[April 27, 2020] 

JUSTICE THOMAS, with whom JUSTICE ALITO joins, and

with whom JUSTICE BREYER joins as to all but Part II–A

and footnote 6, dissenting. 

According to the majority, this Court’s 19th-century “government edicts” precedents clearly stand for the proposition 

that “judges and legislators cannot serve as authors [for 

copyright purposes] when they produce works in their official capacity.” Ante, at 11. And, after straining to conclude

that the Georgia Code Revision Commission (Commission) 

is an arm of the Georgia Legislature, ante, at 9–10, the majority concludes that Georgia cannot hold a copyright in the

annotations that are included as part of the Official Code of 

Georgia Annotated (OCGA). This ruling will likely come as

a shock to the 25 other jurisdictions—22 States, 2 Territories, and the District of Columbia—that rely on arrangements similar to Georgia’s to produce annotated codes. See 

Brief for State of Arkansas et al. as Amici Curiae 15, and 

App. to id., at 1. Perhaps these jurisdictions all overlooked 

this Court’s purportedly clear guidance. Or perhaps the 

widespread use of these arrangements indicates that today’s decision extends the government edicts doctrine to a 

new context, rather than simply “confirm[ing]” what the

precedents have always held. See ante, at 5. Because I believe we should “leave to Congress the task of deciding

whether the Copyright Act needs an upgrade,” American 
 

 

 

2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

Broadcasting Cos. v. Aereo, Inc., 573 U. S. 431, 463 (2014) 

(Scalia, J., dissenting), I respectfully dissent. 

I 

Like the majority, I begin with the three 19th-century

precedents that the parties agree provide the foundation for 

the government edicts doctrine. 

In Wheaton v. Peters, 8 Pet. 591 (1834), the Court first 

regarded it as self-evident that judicial opinions cannot be

copyrighted either by the judges who signed them or by a

reporter under whose auspices they are published. Congress provided that, in return for a salary of $1,000, the Reporter of Decisions for this Court would prepare reports

consisting of judicial opinions and additional materials 

summarizing the cases. Id., at 614, 617 (argument).

Wheaton, one of this Court’s earliest Reporters, argued that 

he owned a copyright for the entirety of his reports. He contended that he had “acquired the right to the opinions by

judges’ gift” once they became a part of his volume. Id., at 

614 (same). The Court ultimately remanded on the question whether Wheaton had complied with the Copyright

Act’s procedural requirements. Id., at 667–668. In doing

so, it observed in dicta that “the court [was] unanimously of 

[the] opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and

that the judges thereof cannot confer on any reporter any 

such right.” Id., at 668. 

Fifty-four years later, the Court returned to the same 

subject, suggesting a doctrinal basis for the rule that judicial opinions and certain closely related materials cannot be

copyrighted. In Banks v. Manchester, 128 U. S. 244 (1888), 

the state-authorized publisher of the Ohio Supreme Court’s 

decisions, Banks & Brothers, sued a competing publisher 

for copyright infringement. The competing publisher reproduced portions from Banks’ reports, including Ohio Supreme Court decisions, statements of the cases, and syllabi, 
 

Cite as: 590 U. S. ____ (2020) 3 

THOMAS, J., dissenting 

all of which were originally prepared by the opinion’s authoring judge. This Court held that these materials were 

not the proper subject of copyright. In reaching that conclusion, the Court grounded its analysis in its interpretation of the word “author” in the Copyright Act. It anchored 

this interpretation in the “public policy” that “the judge

who, in his judicial capacity, prepares the opinion or decision [and other materials]” is not “regarded as their author 

or their proprietor, in the sense of [the Copyright Act], so as 

to be able to confer any title by assignment.” Banks, 128 

U. S., at 253. The Court supported this conclusion by stating that “there has always been a judicial consensus . . . 

that no copyright could[,] under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.” Ibid. 

(emphasis deleted). And the Court observed that this rule 

reflected the view that the “authentic exposition and interpretation of the law . . . is free for publication to all,” which

in turn prevents a judge from qualifying as an author. Ibid. 

Importantly, the Court also briefly discussed whether the

State of Ohio could directly hold the copyright. In answering this question, the Court did not suggest that States

were categorically prohibited from holding copyrights as 

authors or assignees. Instead, the Court simply noted that

the State fell outside the scope of the Act because it was not 

a “resident” or “citizen of the United States,” as then required by statute, and because it did not meet other statutory criteria. Ibid. The Court felt it necessary to observe,

however, that “[w]hether the State could take out a copyright for itself, or could enjoy the benefit of one taken out 

by an individual for it, as the assignee of a citizen of the

United States or a resident therein, who should be the author of a book, is a question not involved in the present case, 

and we refrain from considering it.” Ibid.

 Finally, in Callaghan v. Myers, 128 U. S. 617 (1888), the 
 

 

4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

Court addressed the limits of the government edicts doctrine. In that case, the Court settled another dispute between a publisher of court decisions and an alleged infringer. The plaintiff purchased the proprietary rights to

the reports prepared by the Illinois Supreme Court’s reporter of decisions, Freeman, including the copyright to the 

reports. Unlike in Banks, these reports also contained material authored by Freeman. Callaghan, 128 U. S., at 645. 

The alleged infringers copied the judicial decisions and

Freeman’s materials. In finding for the plaintiff, this Court 

reiterated that “there can be no copyright in the opinions of 

the judges, or in the work done by them in their official capacity as judges.” Id., at 647 (citing Banks, 128 U. S. 244).

But the Court concluded that “no [similar] ground of public 

policy” justified denying a state official a copyright 

“cover[ing] the matter which is the result of his intellectual 

labor.” Callaghan, 128 U. S., at 647. 

II 

These precedents establish that judicial opinions cannot 

be copyrighted. But they do not exclude from copyright protection notes that are prepared by an official court reporter 

and published together with the reported opinions. There 

is no apparent reason why the same logic would not apply 

to statutes and regulations. Thus, it must follow from our 

precedents that statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be. 

See Howell v. Miller, 91 F. 129 (CA6 1898) (Harlan, J.) (explaining that, under Banks and Callaghan, annotations to 

Michigan statutes could be copyrighted). 

A 

It is fair to say that the Court’s 19th-century decisions do

not provide any extended explanation of the basis for the 

government edicts doctrine. The majority is nonetheless 
 

Cite as: 590 U. S. ____ (2020) 5 

THOMAS, J., dissenting 

content to accept these precedents reflexively, without examining the origin or validity of the rule they announced.

For the majority, it is enough that the precedents established a rule that “seemed too obvious to adorn with further 

explanation.” Ante, at 6. But the contours of the rule were 

far from clear, and to understand the scope of the doctrine,

we must explore its underlying rationale.

In my view, the majority’s uncritical extrapolation of 

precedent is inconsistent with the judicial role. An unwillingness to examine the root of a precedent has led to the

sprouting of many noxious weeds that distort the meaning

of the Constitution and statutes alike. Although we have

not been asked to revisit these precedents, it behooves us to

explore the origin of and justification for them, especially

when we are asked to apply their rule for the first time in 

over 130 years.

The Court’s precedents suggest three possible grounds 

supporting their conclusion. In Banks, the Court referred 

to the meaning of the term “author” in copyright law. While 

the Court did not develop this argument, it is conceivable

that the contemporaneous public meaning of the term “author” was narrower in the copyright context than in ordinary speech. At the time this Court decided Banks, the 

Copyright Act provided protection for books, maps, prints,

engravings, musical and dramatic compositions, photographs, and works of art.1 Judicial opinions differ markedly 

from these works. Books, for instance, express the thoughts 

of their authors. They typically have no power beyond the 

ability of their words to influence readers, and they usually

are published at private expense. Judicial opinions, on the

other hand, do not simply express the thoughts of the 

judges who write or endorse them. Instead, they elaborate 

—————— 1See 1 Stat. 124; 2 Stat. 171; ch. 16, 4 Stat. 436; 11 Stat. 138–139; 13 

Stat. 540; 16 Stat. 212. 
 

 

6 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

and apply rules of law that, in turn, represent the implementation of the will of the people. Unlike other copyrightable works of authorship, judicial opinions have binding legal effect, and they are produced and issued at public 

expense. Moreover, copyright law understands an author

to be one whose work will be encouraged by the grant of an

exclusive right. See Kirtsaeng v. John Wiley & Sons, Inc., 

579 U. S. ___, ___ (2016) (slip op., at 6). But judges, when

acting in an official capacity, do not fit that description. The 

Court in Banks may have had these differences in mind

when it concluded that a judge fell outside the scope of the 

term “author.” 128 U. S., at 253. 

History may also suggest a narrower meaning of “author” 

in the copyright context. In England, at least as far back as

1666, courts and commentators agreed “that the property 

of all law books is in the king, because he pays the judges 

who pronounce the law.” G. Curtis, Law of Copyright 130

(1847); see also Banks & Bros. v. West Publishing Co., 27 F. 

50, 57 (CC Minn. 1886) (citing English cases and treatises 

and concluding that “English courts generally sustain the

crown’s proprietary rights in judicial opinions”). Blackstone described this as a “prerogative copyrigh[t],” explaining that “[t]he king, as the executive magistrate, has the

right of promulging to the people all acts of state and government. This gives him the exclusive privilege of printing,

at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council.” 2 W. Blackstone, Commentaries on the Laws of England 410 (1766) 

(emphasis deleted); see also Wheaton, 8 Pet., at 659–660. 

This history helps to explain the dearth of cases permitting

individuals to obtain copyrights in judicial opinions. But 

under the Constitution, sovereignty lies with the people, 

not a king. See The Federalist No. 22, p. 152 (C. Rossiter 

ed. 1961); id., No. 39, at 241. The English historical practice, when superimposed on the Constitution’s recognition 

that sovereignty resides in the people, helps to explain the 
Cite as: 590 U. S. ____ (2020) 7 

THOMAS, J., dissenting 

Court’s conclusion that the “authentic exposition and interpretation of the law . . . is free for publication to all.” Banks, 

128 U. S., at 253. 

Finally, concerns of fair notice, often recognized by this 

Court’s precedents as an important component of due 

process, also may have animated the reasoning of these 

19th-century cases. As one court put it, “[t]he decisions and

opinions of the justices are the authorized expositions and 

interpretations of the laws, which are binding upon all the 

citizens. . . . Every citizen is presumed to know the law thus 

declared, and it needs no argument to show that justice requires that all should have free access to the opinions.” 

Nash v. Lathrop, 142 Mass. 29, 35, 6 N. E. 559, 560 (1886) 

(cited in Banks, 128 U. S., at 253–254); see also American 

Soc. for Testing and Materials v. Public.Resource.Org, Inc., 

896 F. 3d 437, 458–459 (CADC 2018) (Katsas, J., concurring). 

B 

Allowing annotations to be copyrighted does not run afoul 

of any of these possible justifications for the government 

edicts doctrine. First, unlike judicial opinions and statutes, 

these annotations do not even purport to embody the will of 

the people because they are not law. The General Assembly

of Georgia has made abundantly clear through a variety of 

provisions that the annotations do not create any binding 

obligations. OCGA §1–1–7 states that “[a]ll historical citations, title and chapter analyses, and notes set out in this 

Code are given for the purpose of convenient reference and 

do not constitute part of the law.” Section 1–1–1 further 

provides that “[t]he statutory portion of the codification of 

Georgia laws . . . is enacted and shall have the effect of statutes enacted by the General Assembly of Georgia. The statutory portion of such codification shall be merged with annotations . . . and other materials . . . and shall be published

by authority of the state.” Thus, although the materials 
 

 

8 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

“merge” prior to publication in the “official” code, the very

provision calling for that merger makes clear that the annotations serve as commentary, not law. 

As additional evidence that the annotations do not represent the will of the people, the General Assembly does not

enact statutory annotations under its legislative power.

See Ga. Const., Art. III, §1, ¶1 (vesting the legislative power

in the General Assembly). To enact state law, Georgia employs a process of bicameralism and presentment similar to

that embodied in the United States Constitution. See Ga. 

Const., Art. III, §5; Art. V, §2, ¶4. The annotations do not 

go through this process, a fact that even the majority must

acknowledge. Ante, at 10; Ga. S. 52, Reg. Sess., §54(b) 

(2019–2020) (“Annotations . . . except as otherwise provided 

in the Code . . . are not enacted as statutes by the provisions

of this Act”). 

Second, unlike judges and legislators, the creators of annotations are incentivized by the copyright laws to produce 

a desirable product that will eventually earn them a profit. 

And though the Commission may require Lexis to follow 

strict guidelines, the independent synthesis, analysis, and 

creative drafting behind the annotations makes them analogous to other copyrightable materials. See Brief for Matthew Bender & Co., Inc., as Amicus Curiae 4–7. 

Lastly, the annotations do not impede fair notice of the

laws. As just stated, the annotations do not carry the binding force of law. They simply summarize independent 

sources of legal information and consolidate them in one 

place. Thus, OCGA annotations serve a similar function to 

other copyrighted research tools provided by private parties

such as the American Law Reports and Westlaw, which also

contain information of great “practical significance.” Ante, 

at 17. Compare, e.g., OCGA §34–9–260 (annotation for Cho 

Carwash Property, L. L. C. v. Everett, 326 Ga. App. 6, 755 

S. E. 2d 823 (2014)) with Ga. Code Ann. §34–9–260 

(Westlaw’s annotation for the same). 
 

 

 

 

Cite as: 590 U. S. ____ (2020) 9 

THOMAS, J., dissenting 

The majority resists this conclusion, suggesting that

without access to the annotations, readers of Georgia law 

will be unable to fully understand the true meaning of Georgia’s statutory provisions, such as provisions that have been 

undermined or nullified by court decisions. Ante, at 17. 

That is simply incorrect. As the majority tacitly concedes,

a person seeking information about changes in Georgia

statutory law can find that information by consulting the 

original source for the change in the law’s status—the court 

decisions themselves. See ante, at 17. The inability to access the OCGA merely deprives a researcher of one specific 

tool, not to the underlying factual or legal information summarized in that tool. See also post, at 4 (GINSBURG, J., dissenting).2 

C 

The text of the Copyright Act supports my reading of the 

—————— 2The majority contends that, rather than seeking to understand the 

origins of our precedents, we should simply accept the text of the opinions 

that the Justices “voted on and committed to writing.” Ante, at 16–17, 

n. 4. But that begs the question: What does the text of the relevant opinions tell us? The answer is not much. It is precisely this lack of explication that makes it necessary to explore the “judicial consensus” and public policy referred to in Banks v. Manchester, 128 U. S. 244, 253 (1888).

Instead, the majority attempts to dissect the language of our prior opinions in the same way it would interpret a statute, an approach we have

repeatedly cautioned against. See St. Mary’s Honor Center v. Hicks, 509 

U. S. 502, 515 (1993); Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979).

The proper approach is to “read general language in judicial opinions . . . 

as referring in context to circumstances similar to the circumstances 

then before the Court and not referring to quite different circumstances 

that the Court was not then considering.” Illinois v. Lidster, 540 U. S. 

419, 424 (2004); see also Cohens v. Virginia, 6 Wheat. 264, 399 (1821) 

(Marshall, C. J., for the Court) (“[G]eneral expressions, in every opinion, 

are to be taken in connection with the case in which those expressions 

are used. If they go beyond the case, they may be respected, but ought

not to control the judgment in a subsequent suit when the very point is

presented for decision”). 
 

10 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

precedents.3 Specifically, there are four indications in the 

text of the Copyright Act that the OCGA annotations are 

copyrightable. As an initial matter, the Act does not define 

the word “author,” 17 U. S. C. §101, or make any reference

to the government edicts doctrine. Accordingly, the term

“author” itself does not shed any light on whether the doctrine covers statutory annotations. Second, while the Act 

excludes from copyright protection “work[s] prepared by an

officer or employee of the United States Government as part 

of that person’s official duties,” §101; see also §105, the Act 

contains no similar prohibition against works of state governments or works prepared at their behest. “Congress’ use

of explicit language in one provision cautions against inferring the same limitation” elsewhere in the statute. State 

Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 

580 U. S. ___, ___ (2016) (slip op., at 7) (internal quotation 

marks omitted); Pacific Operators Offshore, LLP v. Valladolid, 565 U. S. 207, 216 (2012). Third, the Act specifically notes that annotations are copyrightable derivative 

works. §101. Here, again, the Act does not expressly exclude from copyright protection annotations created either 

by the State or at the State’s request. Fourth, the Act provides that an author may hold a copyright in “material contributed” in a derivative work, “as distinguished from the 

preexisting material employed in the work.” §103(b); see

also Feist Publications, Inc. v. Rural Telephone Service Co., 

499 U. S. 340, 359 (1991). These aspects of the statutory

text, taken together, further support the conclusion that the 

OCGA annotations are copyrightable.

For all these reasons, I would conclude that, as with the 

—————— 3As the majority explains, ante, at 9, the annotations were created as 

part of a work-for-hire agreement between the Commission and Lexis. 

See 17 U. S. C. §201(b). Because no party disputes the validity of the

contract, I express no opinion regarding whether the contract established 

an employer/employee relationship or whether the Commission may be 

considered a “person” under §201(b). 
Cite as: 590 U. S. ____ (2020) 11 

THOMAS, J., dissenting 

privately created annotations in Callaghan, Georgia’s statutory annotations at issue in this case are copyrightable. 

III 

The majority reads this Court’s precedents differently. In 

its view, the Court in Banks held that judges are not “authors” within the scope of the Copyright Act for “whatever

work they perform in their capacity as judges,” 128 U. S., at

253, so the same must be true for legislators, see ante, at 8– 

9. Accordingly, works created by legislators in their legislative capacity are not “original works of authorship,” §102, 

and therefore cannot be copyrighted. This argument is 

flawed in multiple respects. 

A 

Most notably, the majority’s textual analysis hinges on 

accepting that its construction of “authorship,” i.e., all 

works produced in a judge’s or legislator’s official capacity,

was so well established by our 19th-century precedents that 

Congress incorporated it into the multiple revisions of the 

Copyright Act. See ante, at 12–13. Such confidence is questionable, to say the least. 

The majority’s understanding of the government edicts

doctrine seems to have been lost on dozens of States and 

Territories, as well as the lower courts in this case. As already stated, the 25 jurisdictions with official annotated 

codes apparently did not view this Court’s precedents as establishing the “official duties” definition of authorship. See 

Brief for State of Arkansas et al. as Amici Curiae.4 And if 

—————— 4According to one study published in 2000, approximately half of 

States owned copyright in official state statutory compilations, court reports, or administrative regulations. Dmitrieva, State Ownership of 

Copyrights in Primary Law Materials, 23 Hastings Com. & Entertainment L. J. 81, 83, 97–105 (2000). The majority attempts to undermine

this study by emphasizing that some of these States owned copyright in 

primary law materials. Ante, at 13, n. 3. This misunderstands the point. 
 

 

 

 

12 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

“our precedents answer the question” so clearly, ante, at 14, 

one wonders why the Eleventh Circuit reached its conclusion in such a roundabout fashion. Rather than following 

the majority’s “straightforward” path, ante, at 5, the Eleventh Circuit looked to the “zone of indeterminacy at the 

frontier between edicts that carry the force of law and 

those that do not” to determine whether the annotations 

were “sufficiently law-like” to be “constructively authored

by the People.” Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F. 3d 1229, 1233, 1242, 1243 (2018).

The District Court likewise does not appear to have viewed 

the question as well settled. In a cursory analysis, it determined that the annotations were copyrightable based on 

Callaghan. Code Revision Comm’n v. Public.Resource.Org, 

Inc., 244 F. Supp. 3d 1350, 1356 (ND Ga. 2017). It is risible 

to presume that Congress had knowledge of and incorporated a “settled” meaning that eluded a multitude of States

and Territories, as well as at least four Article III judges. 

Ante, at 13. Cf. Rimini Street, Inc. v. Oracle USA, Inc., 586 

U. S. ___, ___–___ (2019) (slip op., at 9–10). 

This presumption of congressional knowledge also provides the basis for the majority’s conclusion that the annotations are not “original works of authorship.” See ante, at 

11–12 (discussing §101). Stripped of the fiction that this

Court’s 19th-century precedents clearly demonstrated that

“authorship” encompassed all works performed as part of a

legislator’s duties, the majority’s textual argument fails. 

—————— 

I do not claim that this evidence demonstrates that the States necessarily interpreted the government edicts doctrine correctly. I merely

point out that these divergent practices seriously undercut the majority’s 

claim that its interpretation of “authorship” was well settled and universally understood. On this score, the majority has no answer but to insinuate that the lawmakers of over half the Nation’s jurisdictions disregarded federal law and the Constitution to pursue their own agendas in 

the face of supposedly clear precedent. 
Cite as: 590 U. S. ____ (2020) 13 

THOMAS, J., dissenting 

The majority does not confront this criticism head on. Instead, it simply repeats, without any further elaboration,

its unsupported conclusion that “[t]he Court long ago interpreted the word ‘author’ to exclude officials empowered to

speak with the force of law, and Congress has carried that

meaning forward in multiple iterations of the Copyright

Act.” Ante, at 16. This wave of the “magic wand of ipse 

dixit” does nothing to strengthen the majority’s argument, 

and in fact only serves to underscore its weakness. United 

States v. Yermian, 468 U. S. 63, 77 (1984) (Rehnquist, J., 

dissenting).5 

B 

In addition to its textual deficiencies, the majority’s understanding of this Court’s precedents fails to account for

the critical differences between the role that judicial opinions play in expounding upon the law compared to that of 

statutes. The majority finds it meaningful, for instance, 

that Banks prohibited dissents and concurrences from being copyrighted, even though they carry no legal force. 

Ante, at 15. At an elementary level, it is true that the judgment is the only part of a judicial decision that has legal 

effect. But it blinks reality to ignore that every word of a

judicial opinion—whether it is a majority, a concurrence, or 

a dissent—expounds upon the law in ways that do not map 

neatly on to the legislative function. Setting aside summary decisions, the reader of a judicial opinion will always

gain critical insight into the reasoning underlying a judicial

holding by reading all opinions in their entirety. Under-

—————— 5The majority’s approach is also hard to reconcile with the recognition 

in Wheaton v. Peters, 8 Pet. 591 (1834), that annotations prepared by the 

Reporter of Decisions could be copyrighted. Wheaton was paid a salary 

of $1,000, and it is difficult to say whether this salary funded his work 

on the opinions or his work on the annotations. See id., at 614, 617 (argument). 
 

14 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

standing the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied 

in future judicial opinions.6 Thus, deprived of access to judicial opinions, individuals cannot access the primary, and 

therefore best, source of information for the meaning of the 

law.7 And as true as that is today, access to these opinions 

—————— 6For instance, this Court has not overruled Lemon v. Kurtzman, 403 

U. S. 602 (1971), which pronounced a test for evaluating Establishment

Clause claims. But a reader would do well to carefully scrutinize the 

various opinions in American Legion v. American Humanist Assn., 588 

U. S. ___ (2019), to understand the markedly different way that this precedent functions in our current jurisprudence compared to when it was 

first decided. Moreover, sometimes a separate writing takes on canonical 

status, like Justice Jackson’s concurrence regarding the executive power 

in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634–638 

(1952) (opinion concurring in judgment and opinion of the Court); see 

also Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J.,

concurring) (reasonable expectation of privacy Fourth Amendment test). 

Still other times, the reasoning in an opinion for less than a majority of

the Court provides the explicit basis for a later majority’s holding. See, 

e.g., McKinney v. Arizona, 589 U. S. ___, ___ (2020) (slip op., at 5) (discussing Ring v. Arizona, 536 U. S. 584, 612 (2002) (Scalia J., concurring)); Estelle v. Gamble, 429 U. S. 97, 102 (1976) (incorporating into the 

majority the Eighth Amendment “evolving standards of decency” test 

first announced in Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Even “ ‘comments in [a] dissenting opinion,’ ” ante, at 15, sometimes reemerge as the foundational reasoning in a majority opinion. See, 

e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019) (discussing 

Nevada v. Hall, 440 U. S. 410, 433–439 (1979) (Rehnquist, J., dissenting)); Lawrence v. Texas, 539 U. S. 558, 578 (2003) (“JUSTICE STEVENS’ 

[dissenting] analysis, in our view, should have been controlling in Bowers 

[v. Hardwick, 478 U. S. 186 (1986),] and should control here”). These 

examples, and myriad more, demonstrate that the majority treats the 

role of separate judicial opinions in an overly simplistic fashion. 7 Banks also stated that judicially prepared syllabi and headnotes cannot be copyrighted. 128 U. S., at 253. The majority cites these materials

as further evidence of its broad rule, because the majority finds it beyond 

cavil that “these supplementary materials do not have the force of law.” 

Ante, at 15. The majority feels it appropriate to assume—without any 

historical inquiry—that the words “syllabus” and “headnote” carried the 

same meaning, or served the same function, in 1888 as they do now. 
 

 

Cite as: 590 U. S. ____ (2020) 15 

THOMAS, J., dissenting 

was even more essential in the 19th century before the proliferation of federal and state regulatory law fundamentally 

altered the role that common-law judging played in expounding upon the law. See also post, at 2 (GINSBURG, J., 

dissenting).

These differences provide crucial context for Banks’ reasoning. Specifically, to ensure that judicial “exposition and 

interpretation of the law” remains “free for publication to 

all,” the word “author” must be read to encompass all judicial duties. Banks, 128 U. S., at 253. But these differences 

also demonstrate that the same rule does not a fortiori apply to all legislative duties.8 

C 

In addition to being flawed as a textual and precedential 

—————— 

Without briefing on this issue, I am not willing to make that leap. See 

Hixson v. Burson, 54 Ohio St. 470, 485, 43 N. E. 1000, 1003 (1896) (“reluctantly overrul[ing] the second syllabus” of a previous decision); Holliday v. Brown, 34 Neb. 232, 234, 51 N. W. 839, 840 (1892) (“It is an unwritten rule of this court that members thereof are bound only by the 

points as stated in the syllabus of each case”); see also Frazier v. State, 

15 Ga. App. 365, 365–367, 83 S. E. 273, 273–274 (1914) (clarifying the

meaning of a court-written headnote and emphasizing that to understand an opinion’s meaning, the headnote and opinion must be read together); United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 

337 (1906) (acknowledging that some state statutes rendered headnotes

the work of the court carrying legal force). 8Although legislative history is not at issue in this case, the majority

also contends that its rule is necessary to fend off the possibility that “[a]

State could monetize its entire suite of legislative history.” Ante, at 17. 

Putting aside the jurisprudential debate over the use of such materials 

in interpreting federal statutes, many States can, and have, specifically 

authorized courts to consider legislative history when construing statutes. See, e.g., Colo. Rev. Stat. §2–4–203(1)(c) (2019); Iowa Code §4.6(3) 

(2019); Minn. Stat. §645.16(7) (2018); N. M. Stat. Ann. §12–2A–20(C)(2) 

(2019); N. D. Cent. Code Ann. §1–02–39(3) (2019); Ohio Rev. Code Ann. 

§1.49(C) (Lexis 2019); 1 Pa. Cons. Stat. §1921(c)(7) (2016). Given the 

direct role that legislative history plays in the construction of statutes in

these States, it is hardly clear that such States could subject their legislative histories to copyright. 
 

16 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

THOMAS, J., dissenting 

matter, the majority’s rule will prove difficult to administer.

According to one group of amici, nearly all jurisdictions

with annotated codes use private contractors that “almost 

invariably prepare [annotations] under the supervision of 

legislative-branch or judicial-branch officials, including 

state legislators or state-court judges.” Brief for State of 

Arkansas et al. as Amici Curiae 16–17. Under the majority’s view, any one of these commissions or counsels could 

potentially be reclassified as an “adjunct to the legislature.” 

Ante, at 11. But the majority’s test for ascertaining the true

nature of these commissions raises far more questions than

it answers. 

The majority lists a number of factors—including the

Commission’s membership and funding, how the annotations become part of the OCGA, and descriptions of the 

Commission from court cases—to support its conclusion 

that the Commission is really part of the legislature. See 

ante, at 9–10. But it does not specify whether these factors

are exhaustive or illustrative and, if the latter, what other 

factors may be important. The majority also does not specify whether some factors weigh more heavily than others

when deciding whether to deem an oversight body a legislative adjunct.

And even when the majority does list concrete factors,

pivotal guidance remains lacking. For example, the majority finds it meaningful that 9 out of the Commission’s 15

members are legislators. Ante, at 9; see OCGA §28–9–2 

(noting that the other members of the Commission include 

the State’s Lieutenant Governor, a judge, a district attorney, and three other state bar members). But how many

legislative members are needed for a commission to become

a legislative adjunct? The majority provides no answers to 

any of these questions. 

* * * 

The majority’s rule will leave in the lurch the many 
 

Cite as: 590 U. S. ____ (2020) 17 

THOMAS, J., dissenting 

States, private parties, and legal researchers who relied on 

the previously bright-line rule. Perhaps, to the detriment

of all, many States will stop producing annotated codes 

altogether. Were that to occur, the majority’s fear of an 

“economy-class” version of the law will truly become a reality. See ante, at 17. As Georgia explains, its contract enables the OCGA to be sold at a fraction of the cost of competing annotated codes. For example, Georgia asserts that

Lexis sold the OCGA for $404 in 2016, while West Publishing’s competing annotated code sold for $2,570. Should 

state annotated codes disappear, those without the means

to pay the competitor’s significantly higher price tag will

have a valuable research tool taken away from them. 

Meanwhile, this Court, which is privileged to have access to

numerous research resources, will scarcely notice. These 

negative practical ramifications are unfortunate enough

when they reflect the deliberative legislative choices that 

we as judges are bound to respect. They are all the more 

regrettable when they are the result of our own meddling. 

Fortunately, as the majority and I agree, “‘critics of [today’s] ruling can take their objections across the street,

[where] Congress can correct any mistake it sees.’” Ante, at 

13 (quoting Kimble v. Marvel Entertainment, LLC, 576 

U. S. 446, 456 (2015)).

We have “stressed . . . that it is generally for Congress,

not the courts, to decide how best to pursue the Copyright 

Clause’s objectives,” Eldred v. Ashcroft, 537 U. S. 186, 212 

(2003), because “it is Congress that has been assigned the

task of defining the scope of the limited monopoly that 

should be granted to authors,” Sony Corp. of America v. 

Universal City Studios, Inc., 464 U. S. 417, 429 (1984). Because the majority has strayed from its proper role, I respectfully dissent. 
 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 18–1150 

GEORGIA, ET AL., PETITIONERS v. 

PUBLIC.RESOURCE.ORG, INC. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[April 27, 2020] 

JUSTICE GINSBURG, with whom JUSTICE BREYER joins,

dissenting. 

Beyond doubt, state laws are not copyrightable. Nor are 

other materials created by state legislators in the course of 

performing their lawmaking responsibilities, e.g., legislative committee reports, floor statements, unenacted bills. 

Ante, at 8–9. Not all that legislators do, however, is ineligible for copyright protection; the government edicts doctrine 

shields only “works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.” Ante, at 9 (emphasis added). The core question this 

case presents, as I see it: Are the annotations in the Official

Code of Georgia Annotated (OCGA) done in a legislative capacity? The answer, I am persuaded, should be no. 

To explain why, I proceed from common ground. All 

agree that headnotes and syllabi for judicial opinions—both 

a kind of annotation—are copyrightable when created by a 

reporter of decisions, Callaghan v. Myers, 128 U. S. 617, 

645–650 (1888), but are not copyrightable when created by

judges, Banks v. Manchester, 128 U. S. 244, 253 (1888). 

That is so because “[t]he whole work done by . . . judges,” 

ibid., including dissenting and concurring opinions, ranks

as work performed in their judicial capacity. Judges do not

outsource their writings to “arm[s]” or “adjunct[s],” cf. ante, 

at 9, 11, to be composed in their stead. Accordingly, the 
 

2 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

GINSBURG, J., dissenting 

judicial opinion-drafting process in its entirety—including

the drafting of headnotes and syllabi, in jurisdictions where 

that is done by judges—falls outside the reach of copyright 

protection.

One might ask: If a judge’s annotations are not copyrightable, why are those created by legislators? The answer lies 

in the difference between the role of a judge and the role of

a legislator. “[T]o the judiciary” we assign “the duty of interpreting and applying” the law, Massachusetts v. Mellon, 

262 U. S. 447, 488 (1923), and sometimes making the applicable law, see Friendly, In Praise of Erie—and of the New 

Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See 

also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department to say what the law is.”). In contrast, the role of the 

legislature encompasses the process of “making laws”—not 

construing statutes after their enactment. Mellon, 262 

U. S., at 488; see Patchak v. Zinke, 583 U. S. ___, ___ (2018) 

(plurality opinion) (slip op., at 5) (“[T]he legislative power is

the power to make law.”). The OCGA annotations, in my 

appraisal, do not rank as part of the Georgia Legislature’s 

lawmaking process for three reasons. 

First, the annotations are not created contemporaneously

with the statutes to which they pertain; instead, the annotations comment on statutes already enacted. See, e.g., 

App. 268–269 (text of enacted laws are transmitted to the 

publisher for the addition of commentary); id., at 403–404 

(publisher adds new case notes on a rolling basis as courts

construe existing statutes).1 In short, annotating begins 

—————— 1For example, OCGA §11–2A–213 was enacted, in its current form, in

1993. See 1993 Ga. Laws p. 633. The case notes contained in the OCGA 

summarize judicial decisions construing the statute years later. See 

§11–2A–213 (2002) (citing Griffith v. Medical Rental Supply of Albany, 

Ga., Inc., 244 Ga. App. 120, 534 S. E. 2d 859 (2000); Bailey v. Tucker 

Equip. Sales, Inc., 236 Ga. App. 289, 510 S. E. 2d 904 (1999)). 
 

 

Cite as: 590 U. S. ____ (2020) 3 

GINSBURG, J., dissenting 

only after lawmaking ends. This sets the OCGA annotations apart from uncopyrightable legislative materials like 

committee reports, generated before a law’s enactment, and

tied tightly to the task of law-formulation. 

Second, the OCGA annotations are descriptive rather

than prescriptive. Instead of stating the legislature’s perception of what a law conveys, the annotations summarize

writings in which others express their views on a given statute. For example, the OCGA contains “case annotations”

for “[a]ll decisions of the Supreme Court of Georgia and the

Court of Appeals of Georgia and all decisions of the federal 

courts in cases which arose in Georgia construing any portion of the general statutory law of the state.” Id., at 403. 

Per the Code Revision Commission’s instructions, each annotation should “accurately reflect the facts, holding, and 

statutory construction” adopted by the court. Id., at 404. 

The annotations are neutrally cast; they do not opine on 

whether the summarized case was correctly decided. See, 

e.g., OCGA §17–7–50 (2013) (case annotation summarizing 

facts and holdings of nine cases construing right to grand

jury hearing). This characteristic of the annotations distinguishes them from preenactment legislative materials that

touch or concern the correct interpretation of the legislature’s work. 

Third, and of prime importance, the OCGA annotations 

are “given for the purpose of convenient reference” by the 

public, §1–1–7 (2019); they aim to inform the citizenry at 

large, they do not address, particularly, those seated in legislative chambers.2 Annotations are thus unlike, for example, surveys, work commissioned by a legislature to aid in 

—————— 2Suppose a committee of Georgia’s legislature, to inform the public, 

instructs a staffer to write a guide titled “The Workways of the Georgia 

Legislature.” The final text describing how the legislature operates is

circulated to members of the legislature and approved by a majority. 

Contrary to the Court’s decision, I take it that such a work, which entails

no lawmaking, would be copyrightable. 
 

4 GEORGIA v. PUBLIC.RESOURCE.ORG, INC. 

GINSBURG, J., dissenting 

determining whether existing law should be amended. 

The requirement that the statutory portions of the OCGA

“shall be merged with annotations,” §1–1–1, does not render the annotations anything other than explanatory, referential, or commentarial material. See Harrison Co. v. 

Code Revision Comm’n, 244 Ga. 325, 331, 260 S. E. 2d 30, 

35 (1979) (observation by the Supreme Court of Georgia 

that “inclusion of annotations in [the] ‘official Code’” does 

not “give the annotations any official weight”).3 Annotations aid the legal researcher, and that aid is enhanced

when annotations are printed beneath or alongside the relevant statutory text. But the placement of annotations in 

the OCGA does not alter their auxiliary, nonlegislative 

character. 

* * * 

Because summarizing judicial decisions and commentary

bearing on enacted statutes, in contrast to, for example, 

drafting a committee report to accompany proposed legislation, is not done in a legislator’s law-shaping capacity, I

would hold the OCGA annotations copyrightable and therefore reverse the judgment of the Court of Appeals for the 

Eleventh Circuit. 

—————— 3That the Georgia Supreme Court described the Commission’s work as 

“within the sphere of legislative authority” for state separation-of-powers 

purposes, Harrison Co. v. Code Revision Comm’n, 244 Ga. 325, 330, 260 

S. E. 2d 30, 34 (1979), does not resolve the federal Copyright Act question

before us. Cf. Yates v. United States, 574 U. S. 528, 537 (2015) (plurality 

opinion) (“In law as in life, . . . the same words, placed in different contexts, sometimes mean different things.”); Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) (“The tendency to assume that a word which appears in two or more legal rules,

and so in connection with more than one purpose, has and should have

precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be 

guarded against.”).