Page:Georgia v. Public.Resource.Org SCOTUS slip opinion.pdf/39

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, with whom 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. . 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.” (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. ,, to be composed in their stead. Accordingly, the