4 ms·

This is a huge win for civil liberty.

SamWhited 6y ago
I'm not sure that it is. While I agree with the final outcome (seriously, why would the states be able to copyright annotations?), it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome. We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade (or some other more established opinion that you like, depending on your political leanings)? I can't tell how serious this is, but it sounds like another attempt to weaken stare decisis to me (again, with the disclaimer that I am not a lawyer or legal expert of any kind and maybe it's not nearly as bad as it sounds to me?)
- thaumasiotes 6y ago
  > it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome. > We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade That's... pretty much exactly what they did for Roe v. Wade.
  - SamWhited 6y ago
    No, they didn't. In Roe v. Wade they made up a legal test which they can do, and they interpreted existing laws in terms of their constitutionality. However, as far as I can tell that's not what's happening here. They just took a law that applies to the judiciary and said "yah, that applies to the legislature too now". Again, not a lawyer, so the way in which they reached their outcome may not be as bad as it seems to me since I don't really have the knowledge to evaluate it properly. Just because the decision is good though doesn't mean it doesn't have other bad consequences.
    - rmilk 6y ago
      I would not agree with your assessment. The legislature wrote the laws, which are not copyrighted. But they went a step further in this case to add that the ACTUAL law to be applied in the State is the Annotated version, not the original unannotated version. Or in other words, the only way to obtain the actual law is through the version that was copyrighted. (See the Ars Technica article that has some good background on the history of the case). I still see the case as being about the legislature creating law but then assigning the copyright to that law to someone else. That was decided long ago in the government edicts precedents. Without this overturned decision, this leaves you in the position that you cannot access the Official Laws without being forced to go to the owner of the copyright for access.
- NineStarPoint 6y ago
  I’m not so sure it ignores precedent, although it definitely extends it. I think Ginsberg in her dissent says it well that the issue follows from related precedent as such: “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.” She goes on to say “In contrast, the role of the legislature encompasses the process of ‘making laws’- not construing statutes after their enactment.” and that, “The OCGA annotations, in my appraisal, do not rank as part of the Georgia Legislature’s lawmaking process for three reasons.” Those in the majority instead say “If judges, acting as judges, cannot be ’authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” They say this extends to the annotations as “That of course includes final legislation, but it also includes explanatory and proce- dural materials legislators create in the discharge of their legislative duties.” Whether the majority is correct in their decision or not, I think this is definitely a reasonable clarification of past precedent. I think Justice Thomas’s dissent is accurate when it says that this was not as clear cut a confirmation as the Majority opinion’s writing makes it out to be, but I think saying the decision is incongruous with previous precedent is also incorrect.
  - SamWhited 6y ago
    That may be fair; rereading Ginsburg's dissent though I'm still left wondering if it makes sense to apply precedent in the way the majority did, or if they were just making things up. It's quite possible that I'm just misunderstanding what I'm reading too though.
    - NineStarPoint 6y ago
      It’s definitely fair to disagree with the majority here. The written dissents also make sense, and as a 5:4 decision that wasn’t along party lines you’re in good company with Supreme Court Justices who think it was an incorrect decision.

I'm not sure that it is. While I agree with the final outcome (seriously, why would the states be able to copyright annotations?), it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome. We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade (or some other more established opinion that you like, depending on your political leanings)? I can't tell how serious this is, but it sounds like another attempt to weaken stare decisis to me (again, with the disclaimer that I am not a lawyer or legal expert of any kind and maybe it's not nearly as bad as it sounds to me?)

thaumasiotes 6y ago
> it sounds like the court ignored precedent and effectively made up a new law out of whole cloth to reach this outcome. > We may be okay with this particular outcome, but would we feel the same way if they did it for say Roe v. Wade That's... pretty much exactly what they did for Roe v. Wade.
- SamWhited 6y ago
  No, they didn't. In Roe v. Wade they made up a legal test which they can do, and they interpreted existing laws in terms of their constitutionality. However, as far as I can tell that's not what's happening here. They just took a law that applies to the judiciary and said "yah, that applies to the legislature too now". Again, not a lawyer, so the way in which they reached their outcome may not be as bad as it seems to me since I don't really have the knowledge to evaluate it properly. Just because the decision is good though doesn't mean it doesn't have other bad consequences.
  - rmilk 6y ago
    I would not agree with your assessment. The legislature wrote the laws, which are not copyrighted. But they went a step further in this case to add that the ACTUAL law to be applied in the State is the Annotated version, not the original unannotated version. Or in other words, the only way to obtain the actual law is through the version that was copyrighted. (See the Ars Technica article that has some good background on the history of the case). I still see the case as being about the legislature creating law but then assigning the copyright to that law to someone else. That was decided long ago in the government edicts precedents. Without this overturned decision, this leaves you in the position that you cannot access the Official Laws without being forced to go to the owner of the copyright for access.
NineStarPoint 6y ago
I’m not so sure it ignores precedent, although it definitely extends it. I think Ginsberg in her dissent says it well that the issue follows from related precedent as such: “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.” She goes on to say “In contrast, the role of the legislature encompasses the process of ‘making laws’- not construing statutes after their enactment.” and that, “The OCGA annotations, in my appraisal, do not rank as part of the Georgia Legislature’s lawmaking process for three reasons.” Those in the majority instead say “If judges, acting as judges, cannot be ’authors’ because of their authority to make and interpret the law, it follows that legislators, acting as legislators, cannot be either.” They say this extends to the annotations as “That of course includes final legislation, but it also includes explanatory and proce- dural materials legislators create in the discharge of their legislative duties.” Whether the majority is correct in their decision or not, I think this is definitely a reasonable clarification of past precedent. I think Justice Thomas’s dissent is accurate when it says that this was not as clear cut a confirmation as the Majority opinion’s writing makes it out to be, but I think saying the decision is incongruous with previous precedent is also incorrect.
- SamWhited 6y ago
  That may be fair; rereading Ginsburg's dissent though I'm still left wondering if it makes sense to apply precedent in the way the majority did, or if they were just making things up. It's quite possible that I'm just misunderstanding what I'm reading too though.
  - NineStarPoint 6y ago
    It’s definitely fair to disagree with the majority here. The written dissents also make sense, and as a 5:4 decision that wasn’t along party lines you’re in good company with Supreme Court Justices who think it was an incorrect decision.