Joseph Liu, ‘Who’s Afraid of the Common Law? Georgia v Public.Resource.Org and the Supreme Court’s Recent “Straightforward” Copyright Jurisprudence’

ABSTRACT
In Georgia v Public.Resource.Org, the US Supreme Court held that no copyright existed in statutory annotations authored by the State of Georgia and incorporated into the official Georgia state code. Although the result has much to recommend it, the Court reached it in profoundly unsatisfying fashion. In this Article, I argue that the Court’s approach fails to capture, or indeed grapple with, the compelling policy reasons for finding the annotations unprotected, and that this failure is the direct result of a fundamental misunderstanding about the judicial role in copyright cases. Specifically, the Court fails to recognize that, in many areas, the Copyright Act is not a source of definitive answers, but a delegation of authority to find the answers, and that a refusal to fully exercise this authority is not laudable deference to legislative supremacy, but an abdication of judicial responsibility. More broadly, the Court’s decision exemplifies its recent copyright jurisprudence, one characterized by appeals to legislative authority, a reluctance to engage with policy, a curious flattening of complexity, and a misguided desire to find ‘straightforward’ rules where none exist.

Liu, Joseph P, Who’s Afraid of the Common Law? Georgia v Public.Resource.Org and the Supreme Court’s Recent ‘Straightforward’ Copyright Jurisprudence (September 14, 2021). 67 Journal of the Copyright Society of the USA 397 (2021), Boston College Law School Legal Studies Research Paper No 564.

First posted 2021-09-16 13:00:35

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