Long Live the Common Law of Copyright!: Georgia v. Public.Resource.Org., Inc. and the Debate over Judicial Role in Copyright

Abstract

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth century copyright doctrine — the government edicts doctrine — and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copyright adjudication that is at odds with the dominant approach under the Copyright Act of 1976, which sees courts as limited to interpreting and deferring to the text of the statute. This Essay unpacks the longstanding debate about judicial role in copyright that manifested itself rather vividly in the majority and dissenting opinions in the case. In the process, it shows how Chief Justice Roberts’ opinion for the Court consciously unraveled a delicate — but undesirable — institutional balance that has come to be accepted within the world of copyright law, and imagines the consequences that it might have for the future of copyright adjudication and law-making.

Keywords: government edicts, copyright, owing the law, common law, judicial role

JEL Classification: K11