Thomas, J., dissenting
privately created annotations in Callaghan, Georgia’s statutory annotations at issue in this case are copyrightable.
III
The majority reads this Court’s precedents differently. In its view, the Court in Banks held that judges are not “authors” within the scope of the Copyright Act for “whatever work they perform in their capacity as judges,” 128 U. S., at 253, so the same must be true for legislators, see ante, at 8–9. Accordingly, works created by legislators in their legislative capacity are not “original works of authorship,” §102, and therefore cannot be copyrighted. This argument is flawed in multiple respects.
A
Most notably, the majority’s textual analysis hinges on accepting that its construction of “authorship,” i.e., all works produced in a judge’s or legislator’s official capacity, was so well established by our 19th-century precedents that Congress incorporated it into the multiple revisions of the Copyright Act. See ante, at 12–13. Such confidence is questionable, to say the least.
The majority’s understanding of the government edicts doctrine seems to have been lost on dozens of States and Territories, as well as the lower courts in this case. As already stated, the 25 jurisdictions with official annotated codes apparently did not view this Court’s precedents as establishing the “official duties” definition of authorship. See Brief for State of Arkansas et al. as Amici Curiae.[1] And if
- ↑ 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.
