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 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 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 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
cease-and-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.

															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 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 non-binding
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. , 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 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

															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 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
annotations 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” 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 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

															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 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. 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 ]

															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 - annotated -
skuSKU6647 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 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. Notes 1 The Copyright Act of 1790
granted copyright protection to “the author and authors” of
qualifying works. Act of May 31, 1790, §1, 1Stat. 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”). 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). 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. 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 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 . 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 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, 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 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 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 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 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 “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).

															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 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 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 “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.

															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. Understanding 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 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 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 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. Notes 1 See 1Stat. 124; 2Stat.
171; ch. 16, 4Stat. 436; 11Stat. 138–139; 13Stat. 540; 16Stat.
212. 2 The 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”). 3 As 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). 4 According 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. 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. 5 The 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). 6 For 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. 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). 8 Although 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. 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 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 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 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. Notes 1 For 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)). 2 Suppose 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. 3 That 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.”).

Summary: The Supreme Court ruled that Georgia's official annotated code, which includes summaries of judicial decisions and commentary on statutes, cannot be copyrighted as it is created by legislators in their official duties and thus falls under the government edicts doctrine. This doctrine states that officials with the power to create laws cannot copyright the works they create while performing their official duties.