Josh “kept his poise throughout, directly answering even the hardest of questions and deftly steering the argument back to our side’s strongest points,” said V&E appellate partner Jeremy Marwell.
A recent dispute between the state of Georgia and a nonprofit group had the markings of a compelling Supreme Court case: a history of disagreement in the lower courts, a state government as a petitioner and a potential nationwide impact.
But for V&E counsel Josh Johnson, Georgia v. Public.Resource.Org would prove special for an additional reason: The case was his first time arguing before the Supreme Court, an appearance that colleagues would later praise as a “masterful” debut.
“Josh did a masterful job in handling active and engaged questioning from the justices,” said V&E appellate partner Jeremy Marwell. “[He] kept his poise throughout, directly answering even the hardest of questions and deftly steering the argument back to our side’s strongest points.”
Johnson’s involvement with the case stems from V&E’s collaboration with the University of Virginia Law School’s Supreme Court Litigation Clinic. Johnson, Marwell, and V&E senior appellate associate Max Etchemendy teach at the clinic and work with students there on cases that appear to be potential candidates for Supreme Court review.
In October 2018, such a case came across their desks when the United States Court of Appeals for the 11th Circuit ruled against the government of Georgia in its lawsuit against Public.Resource.Org. Georgia had brought suit against Public.Resource.Org for copyright infringement when it published the state’s annotated legal code. Under what’s known as the government edicts doctrine, the law itself, such as statutory text, is not subject to copyright. But the U.S. Copyright Office has long recognized that states may hold copyrights in original annotations, such as summaries of judicial decisions, that are added to code books to assist with legal research.
“The issue came up in this case because the state of Georgia has contracted with LexisNexis to prepare its official code book and include in that code book annotations over which the state claims copyright,” Johnson said.
Johnson noted that LexisNexis provides this service to the state for free and recoups its costs by selling the annotated code book. “If there’s no copyright protection, then that means that anyone can just copy what Lexis has done and post it for free online,” he said.
The 11th Circuit’s ruling, however, invalidated Georgia’s copyright claims. “Lexis has made clear that without copyright protection for the annotations, it would lose all incentive to remain in its contract with Georgia to prepare the state’s annotated official code,” Johnson said. Johnson explained that the 11th Circuit’s decision thus put “Georgia in the awkward position of potentially having to find an entirely new way to publish its code.”
The ruling’s impact on Georgia made the case an attractive candidate for Supreme Court consideration. “A case tends to get particular attention when a sovereign state is petitioning and saying that its interests have been negatively affected by a particular ruling,” Johnson said.
Disagreement about the application of the government edicts doctrine in lower courts also made the case worth the Supreme Court’s consideration.
“Our cert petition emphasized that this case involves a doctrine that the Supreme Court created in the 1800s—that the law itself is not copyrightable—and the Supreme Court has not touched that doctrine since the 1800s,” Johnson said. “The precise scope of that doctrine has caused a considerable amount of confusion in the courts of appeals, and here the 11th Circuit applied that doctrine in a way that no other court has.”
And if the ruling of the 11th Circuit were allowed to stand, Johnson added, states with arrangements similar to Georgia’s could also find it much more difficult to publish their own codes. ”
About a third of states have systems that are very similar to Georgia’s,” Johnson said. “The copyrights in those states would also be invalidated if the 11th Circuit’s decision became the law nationwide.”
A Historic Argument
Johnson and Etchemendy, the second chair on the case, teamed with UVA students and Georgia’s original lawyers and spent about four months putting together the cert petition.
The court granted the petition in June.
“It was exciting,” Johnson remembered, “but also a little nerve-racking.”
The team spent another two months crafting a merits brief, which included a more in-depth explanation of the history of law relevant to the case.
“The Supreme Court in the 1800s issued three decisions that together established the principle that judicial opinions are not copyrightable, but annotations added to opinions by a court’s official reporter are copyrightable,” Johnson explained. “In addition to being consistent with the Copyright Act’s text, recognizing copyright in the annotations was important because back in the 1800s, official court reporters often either didn’t have a salary or had a fairly low salary. And so they relied on sales of the reporter volumes to supplement whatever they were paid by the government for being the official reporter.” That system, he said, was dependent on copyright protection to prevent others from pirating and republishing the official reporters’ works.
The issue has since been considered by Congress, Johnson added. When Congress was debating the 1909 Copyright Act, it considered a proposal to stop states from having copyrights on any state government work … and decided against it.
Decades later, in the Copyright Act of 1976, Congress once again declined to limit copyrights on annotations. In making its decision, Congress reviewed reports by the U.S. Copyright Office that cited 19th-century precedents.
“Congress, with these reports in front of it, decided not to amend the Copyright Act in any way to override the principle that annotations in official reporter volumes are copyrightable,” Johnson said. “Congress passed the modern Copyright Act with the understanding that states were relying on copyright protection to prepare and publish works like the Official Code of Georgia Annotated. Congress made the decision that that’s an option it wanted to provide to the states.”
In making their arguments to the Court, Johnson and team were able to enlist a powerful ally: the U.S. Solicitor General’s Office, which filed an amicus brief on behalf of the U.S. government in the case.
“Very soon after the court granted cert in our case, we contacted the Solicitor General’s office to ask if we could come in and present our views on why the SG should file a brief in support of Georgia’s position,” Johnson explained. “Ultimately, the U.S. did end up supporting Georgia’s position. Obviously, having the attorneys representing the U.S. government and its agencies, including the Copyright Office, say that Georgia’s works are copyrightable and the 11th Circuit got it wrong was very helpful and lent a great deal of credibility to our position.”
The Day in Court
Johnson admitted he felt “a little nervous” the night before the argument, but by that morning, he was calm and confident — the result, he said, of meticulous preparation that included not just his team’s work on the cert petition and merits briefing, but also several moot courts, where he took questions from panels of attorneys posing as justices.
“After I’d gone through four moot courts, I felt pretty prepared for the argument,” he said.
It also helped that Georgia v. Public.Resource.Org was the second case on the docket on December 2.
“I got to sit in the courtroom a little bit and see the Justices interact with the attorneys in the other case, so that was a good introduction,” Johnson recalled. “I wasn’t just going cold into the argument; there’d been a little bit of lead-up to it.”
Johnson was allotted a total of 20 minutes to speak before the court. He decided to save three minutes for rebuttal, leaving 17 minutes for him to state his initial case and take questions from the Justices.
“It was about three minutes in that I got the first question, which came from the Chief Justice,” he said. “And then we were off to the races.”
In response to questioning, Johnson explained to the Court that Georgia was not limiting access to the law, and that under its agreement with Georgia, Lexis was required to maintain a free website with the text of Georgia’s statutes, while the annotations were available for a low price capped by the state. And both the statutory text and accompanying annotations could be accessed for free at libraries.
“The key point is that if Georgia no longer had this arrangement, and only private companies were making their own annotations without some kind of arrangement with the state, they would almost certainly charge far more than the price that the state negotiates in its contract,” he said.
In his rebuttal, Johnson focused once again on the history of the legal doctrine at issue and the negative consequences for state governments of affirming the 11th Circuit’s decision below.
“I tried to focus on what I saw as the key issues in the case and not get bogged down in some of the minutia,” he said. “I also was prepared to respond to some of the finer points that the other side made during their argument. But those didn’t seem like the points that were going to win or lose the case, so I did not focus on them during the rebuttal.”
Though the Supreme Court likely won’t rule on the case until the spring of 2020, as far as Johnson’s colleagues are concerned, he’s already a winner for his deft presentation.
“Josh was right at home in steering the argument toward our view of the case,” Marwell said. “Nobody in the courtroom would have known it was his first argument.”