Ginsburg, J., dissenting
judicial opinion-drafting process in its entirety—including the drafting of headnotes and syllabi, in jurisdictions where that is done by judges—falls outside the reach of copyright protection.
One might ask: If a judge’s annotations are not copyrightable, why are those created by legislators? The answer lies in the difference between the role of a judge and the role of a legislator. “[T]o the judiciary” we assign “the duty of interpreting and applying” the law, Massachusetts v. Mellon, 262 U. S. 447, 488 (1923), and sometimes making the applicable law, see Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). In contrast, the role of the legislature encompasses the process of “making laws”—not construing statutes after their enactment. Mellon, 262 U. S., at 488; see Patchak v. Zinke, 583 U. S. ___, ___ (2018) (plurality opinion) (slip op., at 5) (“[T]he legislative power is the power to make law.”). The OCGA annotations, in my appraisal, do not rank as part of the Georgia Legislature’s lawmaking process for three reasons.
First, the annotations are not created contemporaneously with the statutes to which they pertain; instead, the annotations comment on statutes already enacted. See, e.g., App. 268–269 (text of enacted laws are transmitted to the publisher for the addition of commentary); id., at 403–404 (publisher adds new case notes on a rolling basis as courts construe existing statutes).[1] In short, annotating begins
- ↑ For example, OCGA §11–2A–213 was enacted, in its current form, in 1993. See 1993 Ga. Laws p. 633. The case notes contained in the OCGA summarize judicial decisions construing the statute years later. See §11–2A–213 (2002) (citing Griffith v. Medical Rental Supply of Albany, Ga., Inc., 244 Ga. App. 120, 534 S. E. 2d 859 (2000); Bailey v. Tucker Equip. Sales, Inc., 236 Ga. App. 289, 510 S. E. 2d 904 (1999)).
