Courthouse Steps Oral Argument Teleforum: Georgia v. Public Resource.org Inc.

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Intellectual Property Practice Group, was recorded on Monday December 2, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  This afternoon's topic is a Courthouse Steps Oral Argument discussion on Georgia v. Public Resources.org, Inc. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are very fortunate to have with us Mr. Sy Damle, who is a Partner at Latham & Watkins LLP and is the Former General Counsel for the U.S. Copyright Office.

 

      As well, with us is Mr. Zvi Rosen, who is a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. He's also a former Scholar and Resident at the U.S. Copyright Office.

 

      After our speakers have their remarks, we will have time for your questions, so please keep in mind what questions you have for them, or for the topic, or for the case. Thank you very much for sharing with us today.

 

      Zvi, I believe the floor is yours to begin.

 

Zvi Rosen:  Hi everyone. We'll be talking today about the argument the court just heard, as mentioned, in Georgia v. Public Resource.org Inc. Well, the question presented is whether the government edicts doctrine extends to uncopyrightable works but lack force of law, such as the annotations in the Official Code of Georgia Annotated.

 

      So, very briefly, the State of Georgia puts out an official code annotated. Lexis is actually their partner that puts it out. And the annotations to the code are part of the Official Code but they lack the force of law. And there was a lot of conversation at the argument as to the nature of these annotations. And the key question is whether or not they're protectable by copyright. This goes back to one of the very earliest cases. In fact, the earliest case for the Supreme Court on copyright, Wheaton v. Peters of 1834. That's a case that's held that the opinions of the Supreme Court were not copyrightable. The Court revisited this about 50 years later, in 1888, in a pair of cases, Banks v. Manchester and Callaghan and really hasn't addressed since. So it's the first time a court has addressed for government edicts doctrine in about 140 years.

 

      So it's a really interesting case, in that regard. And I want to pass it over to Sy, and then we'll have a bit of a back and forth about what happened in the case, and some of the broader questions that were raised. So Sy, over to you.

 

Sy Damle:  Thank you. As Wes said, I'm Sy Damle. I'm a Partner at Latham & Watkins. I, and some of my colleagues, filed a brief on behalf of a number of current and former federal, state, and local government officials on the side of Public.Resource.Org, on the respondent's side.

 

      The perspective that we took was -- there's a lot of skirmishing and I think, today, the oral argument showed that, about the particular facts of this case, and the degree to which courts in Georgia cite the annotations, and exactly how the annotations work, in terms of how they get actually put into the Official Georgia Code Annotated. We took a broader perspective, which is to say, that the way that the question was presented in this case was whether documents that lack the force of law can be copyrighted. And the answer to that is, of course. The answer is, there are lots of documents that are generated by government that lack the force of law that, under any reasonable understanding of the scope of the Copyright Act, and frankly, the scope of the Copyright Clause of the Constitution, ought to be available to the public outside of Copyright, even though they lack the force of law.

 

      So a good example of that, and I think everybody agrees, are dissenting opinions judicial opinions. Those are documents that, by their definition, lack the force of law. And yet, we all, I think, are on common ground that a state court, or a state government, could not say, well the majority opinion is free for anyone to look at. But the dissenting opinion is not because it lacks the force of law, and so, therefore, we can put it behind a paywall. If you want to read the dissenting opinion of a Georgia Supreme Court decision, you have to pay Lexis some amount of money.

 

      I think everybody agrees, that's not right. And so, the petitioner's rule that they came in with in their petition, and in their opening brief, frankly, was radically underinclusive. And so we focused on that point, which is to say, that the rule can't be, really. That whether a work of a state government is copyrightable or not turns solely on whether it has, or does not have, the force of law.

 

      And so we said, okay, well once you accept that, then you need some sort of test to draw a line between what is copyrightable and what is not copyrightable. And the test that we proposed, which was somewhat similar to, although somewhat, we think, a little better than the test proposed by the government -- sorry, by the federal government, the SG's office, is that effectively, if something is a work of the government that is unique to the government -- So it's not the government issuing a history book, or a university professor putting out an article. If it's something that is really about—that's core to the function of the government, then the rule ought to be that that is not subject to copyright protection and that's for a couple of reasons.

 

      One is that the copyright law exists, and the way that the Constitution provides, is that the copyright law exists to incentivize authors to create works. It is a general exception to the First Amendment principle that works ought to be free, that people have the right to say things and have freedom of speech, and it does that with the understanding that there is a reason. The reason you have copyright is to encourage authors to create work so they can get a private benefit. But there's an understanding that that restricts the ability to disseminate work.

 

      A government official does not need any incentive, like copyright, to create the works they create. A state committee is going to create legislative history whether or not they have a copyright incentive to do so. And so, reason one is, you don't need copyright incentives for government officials to do the things they're going to do anyways.

 

      Reason number two is that these are all works -- the works that are really core governmental works, or that are an output of core governmental functions, are necessary for the public to be able to see what their government is doing. And they are necessary for the public to engage in democratic self-government. And so if a government, if a state, or local, or municipal government could hide behind a paywall, or perhaps not even release to the public at all, because copyright gives you the right to prevent anyone from looking at anything. If a state, or local, or government could say, well you're not going to see the proceedings of our city council, or the video of our city council proceedings because they're under copyright, and either we're not going to give in to you at all, or you have to pay some exorbitant fee, that seems very contrary to -- not only is it necessary for purposes of the Copyright Clause, but it also is contrary to the interests of democratic self-government.

 

      So, we took the position then, and I think it was reflected in some of the questioning today, that this is not something -- these kinds of documents are really not something that ought to be subject to copyright. So that was the position that we took. I hazard to make predictions based on today's argument, although I think it went quite well for our side, but I'll leave it at that, and happy to answer any questions.

 

Zvi Rosen:  Thanks Sy. I think it's really interesting that I think the -- my hazarding a guess is going to be it's probably going to be either the position that I think is in your brief, or the Solicitor General's brief, which obviously come out on opposite sides, both sort of saying we should have a narrow, focused approach of this.

     

      What did you think of the arguments that Public.Resource was arguing in their brief? I know, of course, that they put out their brief around the same time that you put out yours, which made it hard to address. And I think their standard was that, basically, legal material is not protected by copyright if it's put out by the government. Do you have any thoughts on that?

 

Sy Damle:  Yeah. I think it's a fine test. I think it's maybe underinclusive, and I'll give you an example of one way it may be underinclusive.

 

      It really depends. A lot turns on what you mean by legal. Because everything the government does is under the law, in some sense. I don't know that it necessarily is a self-defining term. And for that reason, I favored our test which was, if it's governmental, if it's a core governmental function; if it's a uniquely governmental function, then it meets that prong of the test.

 

      The problem with legal is -- let me give you an example. Let's say you have an EPA Say the EPA is putting out a new rule, and in support of that rule, they do some kind of wetlands study. They commission a wetlands study that they, then, use to support a particular rule that they want to put out. You'd have to argue that the wetlands study, under my view, under our view, I think the wetlands study would count because it is something done as a uniquely governmental function in service of a rulemaking and all the documents in it. Under the Public.Resource.Org test, you'd have to say, well is that a legal document or not? Is a wetlands study, itself, a legal document? And you could make the argument that because it's done in service of a rulemaking, it's is a "legal document" but it's not the cleanest argument to make.

 

      That was our concern, when we read that, about how that test might be interpreted. I think, probably, again to be charitable to Public.Resource.Org folks, I think they had in mind a broad notion of what they meant by legal documents. So I don't think we're substantively on very different ground. It's just semantically, I preferred our formulation to their formulation.

 

Zvi Rosen:  Yeah, that makes sense. Certainly, I had the impression that -- well, I'll back up a little bit and say I was a little surprised that standards didn't come up at all. I know this case is not about certain party standards, but I really figured that was lurking in the background of a lot of this. I figured that's why they made the argument about certain standards, because then you could argue that, among other things, that third-party standards that are incorporated into the law are, thus, unprotectable. Do you think that the standard—Of course, that's not what this case is about, but do you agree that the standard issue was lurking there, or do you think that that's really a separate case that, if it comes up, they'll [inaudible 00:11:33] at the right time? Or do you think that, potentially, this has the possibility to address that, as well?

 

Sy Damle:  Well, I certainly saw a lot of the amici talk about that issue. It's a slightly different issue. It's a little more complicated because these are documents that, at the time of their creation—just to give the folks on the phone what we're talking about—there are third-party organizations that do things like put out model codes, or model standards, for electrical safety or fire safety, or building codes, things like that, that are, then, adopted as law by some level of government: federal, state, local government. And then the question becomes, are those codes, once their adopted by the government, do they continue to be copyrightable? And these are documents that, I think, the complication comes in because these are documents that, I think, at their creation, everyone would acknowledge that they're copyrightable. The question, then, becomes do they lose copyright protection, or are they able to be used without fear of copyright infringement liability once they've been incorporated into law.

 

      This case involves materials that, I think, everyone—at least on our side—thinks that would be uncopyrightable ab initio. It would not be copyrightable from the moment of creation because they're a product of state government. And so I imagine that -- and certainly in our brief we thought about trying to take on the standards issue and we just thought it was a bridge too far, and it was just such a different case because of what I've just explained, that we really wanted to focus, narrowly, on the actual issue before the Court, which is works of government.

 

      Now that said, there probably is going to be some principles expressed in this opinion that may shed light on that question. I don't know, and I think the Court is probably aware enough about it that I think they will go out of their way to say that they're not opining on that question.

 

Zvi Rosen: Yeah, for sure. It's going to be a tightrope for them to walk in terms of not deciding that issue but deciding this issue. One of the things I noticed you cited in your brief was Justice Breyer's tenure article from way back in the day, “The Uneasy Case for Copyright.” And I think it's interesting that, of course, that's one of the articles that really tried to explore -- there’s a great old line from Justice Story that in copyright, more than anything else, the law approaches metaphysical.

 

      And this is one of those cases where, is it a government work? Is this something that is being done by and for republic or is it something that gets protection? And the actual legal basis for government edicts doctrine is fairly -- There's an old lawyer joke that, if you say something so basic as to not need citation, it's because you can't find the citation. And I feel like there's a little bit of that with government edicts, where certainly, in the Wheaton case, and then the few cases that followed, it's really -- instead of looking at, it really is about basic principles of copyright more than most anything else. The Court really hasn't opined them, these fundamental questions of a nature of copyright all that much in the past few decades. It's been much more -- sort of either questions that take on copyright from a side, or cases that are really con law cases and an IP garb. I think it's interesting. We’ll see what happens with that.

 

Sy Damle:  Yeah, I totally agree with that. It's a very fascinating case for that reason, because, you're completely right, that you look at the last decade of copyright cases in the Supreme Court. They've all been very statutory. Read the statute, parse it, what does it mean? So that's Aereo, that's Star Athletica, that's Fourth Estate—it's all about parsing the particular words in the act. You have to go back pretty far to a case like Feist, maybe where they're really taking on the “what are the fundamentals of copyright protection here?” Because you read Wheaton, you read these older cases, Callaghan—very little statutory analysis. There're opinions that would not be written by the Court today. But I think everyone acknowledges that whatever the principles were that were articulated by those courts are, somehow implicitly incorporated into the current Copyright Act, but it's not like you could look at any particular amount of text.

 

      I found it interesting, today, that nobody even talked about the Copyright Act in today's argument, which makes this a pretty exciting case because you are really talking, instead, about a fundamental nature of copyright. And that's certainly how we approached our brief, was not as a “let's parse the statute” kind of exercise, but let's take a step back and remember what copyright's all about.

 

Zvi Rosen:  Well, of course, the one time that statute was mentioned, you're right, they didn't talk about § 105 at all, which would have been logical to at least mention. But they did talk about that the statute does make clear that states can own copyrights. And that was sort of a big point, where we say if a state can own a copyright, what can they own a copyright in? And how is it similar or different to the federal government? And that was an open-ended question from the statute. The statute, I feel like, there's certainly areas that need interpretation, but it doesn't leave a lot of open-ended questions like that.

 

      The other area where I'm curious about, where I think might have some significance, is briefs that are filed by third-parties in a court. Do you think this is likely to have any impact? I mean, of course there is the lower court case holding that it’s a fair use to share briefs and other court materials. But I'm curious to see if this gets at that as well, as non-government created documents, which I guess these are. It’s created by a quasi-government agency.

 

Sy Damle:  Yeah, sort of. Although the State of Georgia is author under a “work made for hire” doctrine. Yeah, and just to talk about “work made for hire,” I think that could be a narrowing factor in this case, is that the Court says, well we're going to rest heavily on the fact that Georgia was declaring itself to be the author of these works, and that matters. I don't know that it should matter, but that may be a dodge in there.

 

      Third-party government reply on briefs and things like that, yeah, lots of complicated issues. As you said, fair use is a useful safety valve because it's hard to come up with a theory for why those are excluded from the Copyright Act, entirely, or a theory that it wouldn't be wildly over-inclusive.

 

      But this comes up -- the other place it comes up is submissions to the Patent and Trademark Office. So you submit a patent and you submit a bunch of prior arts, being here's the prior art that my invention built on. Are those articles -- And someone wants to challenge the patent or the patent gets litigated, to what degree are those articles, now, fair game in that litigation. Lots of interesting issues there. The PTO, itself, has struggled with it. That particular issue comes up in lots of contexts. And that one's really even more interesting because it's not—you could say there's an implied license for a brief author when they submit it to the court to allow other people to look at it. That's a possibility.

 

      It's harder to make that argument when it's some inventor submitted my article to the Patent Office in support of their patent application. There's not the same sort of implied license arguments that they can rely on fair use.

 

      Again, I think the opinion, here, is going to be pretty narrowly focused on government created works.

 

Zvi Rosen:  I think you're right and actually it's interesting because, of course -- I was actually surprised no one mentioned patent documents, either. Of course, those are frequently popular among interior decorators, but there's numerous precedence that they're closed off from copyright.

 

      Well, if people have questions, this could be a good time for them to jump in.

 

Wesley Hodges:  While we wait for any questions, I'm curious, Zvi, do you have any questions for Sy? Or Sy, any more points that you'd like to bring up? I can let you know if anyone chimes in with a question from the audience.

 

Sy Damle:  Yeah. Zvi, I'm curious what you thought of the questioning at the end about the state amicus brief and the sky-is-falling policy argument, I would call it, about, “well if you don't give us copyright protection in this, we will not be able to have published compilations of our state statutes, that this is necessary for us to do that.” What do you think of that? Do you think it's true? What's your sense of that, of the actual reality?

 

Zvi Rosen:  Clearly, it will change the bargaining power of states in terms of creating these documents, that we can't give them copyright. It's probably not going to eliminate it. I imagine creating -- Listen, Lexis probably wants to create an Official Code of Georgia Annotated anyway. It's probably, frankly, going to mean is less of that money going to that state?

 

      So it's a question, to a degree, of the metaphysics of copyright incentives, in that I think that State of Georgia views this as a way to raise some money for the general fund. It's a way of almost charging Lexis saying, “Yes, we'll give you this, Lexis in return for you paying us.” I think it really depends where you think that should be in terms of “Do we want to -- if Georgia is paying for this, should it not be copyrightable? But if it's not copyrightable, then Georgia is not going to have the incentive to be paid for it?”

 

      I think annotations will be traded, regardless. But there's a welfareist notion of, perhaps allowing Georgia to get some of the money that Lexis would otherwise get for it. But I don't think it's going to lead to the end of annotated codes recently set. At a minimum, Westlaw and Lexis both need to have one. I don't know if Bloomberg is moving towards that, as well, but definitely, if you have a legal information service, you have to have annotations for code, irrelevant to anything else.

 

      That would actually be an interesting unintended consequence. If the Court holds that annotations are under protection by copyright, and the states say, “Fine, we're not going have official annotations,” and lo and behold, all of the annotations go into pay services where it's pretty clearly copyright infringement to copy them. I think that could be, in effect, that'd probably be the result. I don't know if you disagree with that.

 

      If I can't copyright these, why would I pay for them, essentially?

 

Sy Damle:  So what's interesting to me is that -- what’s an interesting fact in this case, to me, was that Lexis has -- both Lexis and Westlaw have annotated codes. And so clearly, there's enough incentive, not withstanding the fact that Lexis has gotten the contract for the Official Georgia Code Annotated, for Westlaw to come in and say, “Well, we're going to produce our own version of the Georgia Code Annotated,” which tells me that, there's enough incentive, even if you withdraw from Lexis, or withdraw from Georgia, copyright of their version of the OCGAA.

 

      The thing that we noted in our brief, which I still think is right, is that the notion that this saves the government money is wrong. The government's funded by taxpayers. So what you're really boiling down to is the choice between funding this exercise through a reasonable allocation of taxes to the people of Georgia versus a more narrowly, and more burdensome, frankly, essentially fee as an essential tax on those who want to see the actual Georgia Code, or cite the version of the Georgia Code that is accepted in courts.

 

      So essentially, it doesn't save money. It shifts the burden, funding this, from the people of Georgia in general to a narrower slice of people who need to see the code. I'm sure there are lots of people, like law firms, that can afford that and it's fine to tax them especially for this. But there's lots of people that can't afford it. It's people that are just regular people that need legal services that have to, then, pay to get access to the code. So that, to me, it never struck me as plausible that what's going on here is a money-saving exercise. It's really about burden shifting.

 

Zvi Rosen:  Of course, what I would questions is, would Georgia have to pay, basically, for access to annotations if only annotations were written by third parties? And ditto in other states. I honestly don't know the answer to that and how it shakes out.

 

Sy Damle:  Yeah, the other thing is, to me, the way that Lexis makes money, here, is they charge a sixth -- according to Georgia, they charge a sixth of what Westlaw charges. And that is, why does that make any sense for Lexis is because they benefit from having an imprimatur of the government on their product. So it's cheaper, on a copy-by-copy basis, or subscription-by-subscription basis, but they make it up on volume because it's the only one that's official. That, to me, is the thing that makes it particularly implausible that this wouldn't happen.

 

Zvi Rosen:  Unofficial annotations are already being created. I'm sure they'll continue to be created. My gut reaction is that if Georgia was really losing money and felt that this was a pointless exercise, they wouldn't be fighting so hard for it. What's Georgia's incentive to fight so hard unless they think that, genuinely, that it's overall worth it to have? But my expertise is not so much on the economic side. I can only imagine different ways it could play out. But, it is an interesting question.

 

      I know the goal of Public.Resource has been to make as much available online as possible. And you're really seeing a revolution in legal information being freely available online in the past decade or two. This decision is going to give us the guidelines and rules for what the next generation of that will be.

 

Sy Damle:  Yeah. Completely agree. This is going to be very important. There's a lot, already, and I think it will be important to foster the growth of more public availability and more transparency, frankly, of the lawmaking process. Which, from the perspective of the clients that I represented in this case, that's all to the good. The government officials that I represented want nothing more than open government. They want nothing more than having government be transparent. At bottom, that's what this case is about. It's about ensuring that the operations of government are freely accessible and can be overseen by the people to whom they are responsible.

 

Zvi Rosen:  Yeah, I think you're right. Do you think the Court's really going to do a fundamental reevaluation of some of those old cases or if they're just going to try to give -- well, you know, I think you're right. I think this could be sort of a narrow decision. I think you're right. But do you think we're going to see any big changes to the law after this? Or it's going to be more pushing the rock up the hill a little more?

 

Sy Damle:  Yeah, the impression I got from reading the transcript was, it was very interesting to me that in the petitioner's case, when the petitioner was up arguing and when the government was up arguing, there was very little discussion of case law or questions of case law from the justices. The petitioner, Josh Johnson, tried to inject, “Well, this is like Callaghan, this like Howell, this is like this case and that case.” And the justices kept bringing it back to, “Well, explain to me how this makes sense or how that makes sense. Let me give you a difficult hypothetical this way or that way.”

 

      During the respondent's case, and especially Justice Kavanaugh, just asked a series of questions that almost had the flavor of, help me distinguish what's going on in this case from what happened in Howell, what happened in Callaghan. I mean Howell and Callaghan are probably the two hardest cases for the respondent's side. So to me, what that signals is that, at least Kavanaugh, where his head is, is there a way we can narrowly sort of interpret those decisions as being -- the decisions are really a product of their time. The government was very small. Justices didn't even publish the opinions, themselves. Courts didn't publish the opinions, themselves. It was very, a little bit Wild West, a world where you gave people appropriate and proper incentives to do that work makes a lot of sense. That makes less sense today. I got the sense that they were looking for ways of cabining those cases.

 

Zvi Rosen:  I think you could be right. I think Callaghan is really a tough case for the Public.Resource side. I mean, look, Callaghan was basically, he was the official reporter; he wrote annotations, and if the Supreme Court says, “Yes, those protected by copyright,” it's sort of a twin case to Banks v Manchester, where the Court reiterated that state court opinions were also not protected by copyright, followed [by] Wheaton that set it for federal.

 

      Back in the day, even the Supreme Court reporter was a part time job, until around then, and most other court reporters were a part-time job. Some sort of deal with the court, but you're also a practicing lawyer. The justice who wrote Banks and Callaghan was a very long-time court reporter himself. He been doing it for almost 50 years, at that time. And in fact, I think he had started doing it—this is Justice Blatchford. He had started being court reporter, I think, in the 1840s. I think he probably still had that perspective, a little bit, of the real Wild West days of court reporting, where the 1880s was ready to become a little more standardized.

 

      Whether the Court's looking for a chink in the armor or was basically telling the counsel of Public.Resource, “Hey, you have a terrible case on your side, what are you going to do about it?” I don't know.

 

Sy Damle:  One hopes the Court is looking at this through a modern lens, where the cost of publication is minimal. Whatever kind of copyright incentives you may have needed for these really core government functions back then, they really don't exist today. I don't know, let me ask you. How much do you think that influences the Court? The ease of publication in the digital age?

 

Zvi Rosen:  I don't know at all. I think that depends. I can easily imagine Breyer, for instance, looking at that. I think some of the others would much rather say, “Well, we have this decision. It says what it says.” I think even Breyer, actually was, interestingly, very much saying, “I thought I knew where the line was and you're telling me it's actually different.” I got a little bit of that, that he seemed a little surprised at some of the Public.Resource arguments for a broader meaning. He said, “Well, its annotations are ones -- sort of black letter of all time. Maybe that annotations are one thing and the decision is another.”

 

Sy Damle:  He was the most surprising to me in all this. He had some very challenging arguments, questions for Public.Resource.Org, which is -- there's a reason we cited Breyer's article in our brief. He's generally the justice that has a narrow view of copyright. So it's surprising to see him, really, challenge pretty strenuously some of the arguments being made by the respondents.

 

Zvi Rosen:  At the same time, I think Breyer especially, is unpredictable depending -- his questions don't always prefigure his opinions. Sometimes it's just a way of testing things. But I think it's honestly not going to be about -- they were going to try to say, “Yes, we have this black letter law. A reporter's annotations are a copyrightable, the decision is not.” And we're certainly going to be a sort of, I suspect, somewhat fact-sensitive approach to this case. I don't know that it resolves. It goes much beyond semi-official documents. But I've certainly been wrong many times in my life.

 

Sy Damle:  Do you predict reversal, but because there's just a different test, what's your prediction?

 

Zvi Rosen:  I've been mulling this. I don't think Public.Resource gets a complete win. I think they could try to switch a baby a little bit. Basically saying, some of what was taken is not copyrightable, some is. I thought, at the Court, that the State actually had an easier time. It makes me think maybe they'll get at least a partial win, but it's hard to know for sure. I think that the rebuttal at the end might have helped the State a little more, just saying, "Hey look, they copied the whole thing."

 

Sy Damle: You have “run the table” as he put it.

 

Zvi Rosen:  Yeah, I thought that was very effective. I think that the Court might be a little put off that Public.Resource hasn't done that. All too often in these cases, I feel like it depends a little bit on who the Court think the bad actor is. I know, certainly in the eyes of the State and publishers, Public.Resource is a bad actor. And I think that they've definitely been very flamboyant in their infringements or use of the code.

 

      Actually, speaking of that, because, of course, there was another case argued a month ago that's probably being written at the same time. Do you think [CROSSTALK] Yeah. Do you think Allen v. Cooper will impact this at all?

 

Sy Damle:  Yeah, it's interesting that that argument, Justice Ginsberg had this line of questioning that was really about this case, which was, well, if the state is getting copyright in its own right, why is it that -- there was sort of a, isn't what's good for the goose good for the gander, basically. It's like, well if the state gets copyright, then shouldn't it also be subject to infringement damages to the extent it engages an infringement because otherwise it's unfair? State can have copyright, can sue other people for copyright infringement, but you try to sue the state for copyright infringement and you're out of luck because we [inaudible 00:34:41].

 

      So, clearly there's only one justice thinking about these two cases together. So I don’t know, is there an influence in one way or the other on that? I have no idea. It is interesting to me that there are two copyright cases involving the states. Very different legal issues, these two copyright cases involving the states in the same term. I have to imagine, at some level, there's going to be some relation between one or the other.

 

Zvi Rosen:  Yeah. Because I actually can't recall the last time there was a state-involved copyright case for the Supreme Court in, really, the past century. And of course, Georgia has been in the news, not only for, I think Georgia signed an amicus in Allen and of course, Georgia was also involved through State University in [inaudible 00:35:34] case. Which I have to think at least some of the justices and their clerks are aware. And I'm not sure how that all plays out.

 

Sy Damle:  Yeah, there’s a sense in which, from Justice Ginsburg’s questioning, this is all really out there. You're randomly infringing people’s copyrights at the same time claiming broad copyrights in all sorts of things that really ought not to be copyrightable. So I don't know. I think, if anything, the states come out looking pretty bad in these pair of cases together. But I’m biased.

 

Zvi Rosen:  Well, certainly in Allen v. Cooper, the justices were not subtle in their distaste for Blackbeard’s law. I should just explain to people who don’t know, in Allen v. Cooper this guy was a videographer. He was hired to do underwater footage of the newly discovered wreak of Blackbeard’s flagship off of North Carolina. And then the State of North Carolina basically was -- in front of the Supreme Court, I think, essentially admitted—or at least it was undisputed—that they had committed copyright infringement of this footage. And the State of North Carolina passed a law that all—it was called Blackbeard’s law—that all footage of wreckage was effectively public domain. It was the property of the State, I believe.

 

      And the Court was really -- you had Justice Sotomayor saying several times that “I have trouble [inaudible 37:02] that law.” I wouldn’t be surprised if Allen v. Cooper and Georgia v. Public.Resources come down on the same day or very close. Or not.

 

Sy Damle:  Yeah, we’re representing Ralph Oman in the Blackbeard’s law case, so we’re against the state in that one too.

 

Zvi Rosen:  Yeah, I will smile and nod, then, over the phone. So Sy, I was thinking back to my time at the Copyright Office, when you were there also, and how a lot of the reports of the Office were actually produced by third parties. And I was thinking, for instance, there was this Copyright Clause benefits study that was done in the ‘90s. I think the Copyright Office routinely retains outside agencies and consultants to prepare reports for fee studies, for instance. Now, would you say that those are copyrightable if it’s done for a state? Or are those reports that done by consultants, and, under current law, how you think it should come out under this decision?

 

Sy Damle:  It’s a good question. I think typically the way we handled it, just practically, was that they would essentially -- to the extent that they had any copyright, they would just give up a perpetual license, that we could republish it as much as we wanted. A really interesting question about whether the study by a consultant on the new fee structure or the Copyright Office whether that’s copyrightable. . .

 

      My instinct is no for the same reasons as our test because if it’s something that is they're a contractor, they're acting on behalf of the government; they're doing something the government could do on its own but has chosen to contract with somebody else, but it is in furtherance of a uniquely governmental function. It’s in furtherance of, essentially, a rulemaking function for what the new fees ought to be. Again, I don't think it’s that different from the Annotations case where Lexis is the contractor, but it’s still acting on behalf of the government. And I don't think it should make a difference that the work of the government is being done by a contract rather -- or rather, by one kind of contract—a sort of contract for services—versus another kind of contract, which is a contract for employment. I don't think that should matter. It shouldn’t make a difference in the copyright analysis of how the government is choosing to exercise its authority.

 

Zvi Rosen:  Makes sense. I think that, and certainly in this day and age, I remember looking when I was there at the Copyright Office about what could be shared online. It’s actually an interesting question. I do feel that it will eventually reach a point where, if there’s a lot being shared that’s quasi-governmental, that future copyright status is not as clear as it perhaps could be.

 

      And so I think some more clarity would be great. Hopefully we get more clarity instead of less.

 

Sy Damle:  But not always a guarantee.

 

Zvi Rosen:  So we hope.

 

Wesley Hodges:  Fantastic. Well, I’ve got to say, just from my perspective, it’s been a wonderful hour. We really do appreciate both of your time. On behalf of The Federalist Society, I'd like to thank you both for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you all for joining us. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.