Government edicts doctrine

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Government edicts doctrine establishes that no one can own the law. A trio of cases established this ban on copyright in the works of judges and legislators, as explained recently in Georgia v., Inc., No. 18-1150, 2020 U.S. LEXIS 2529, at *11-12 (Apr. 27, 2020):

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 [Eleventh Circuit] 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.

In this decision in 2020, the 5-4 U.S. Supreme Court decision invalidated a claim by the State of Georgia to annotations to legislation, as prepared by the legislative branch:

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.

Georgia v., Inc.