Thomas, J., dissenting
“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.
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.
