How dramatic, “twenty-five centuries of history reject the foundation of Petitioners’ case.” I am sure the authors were so very proud of themselves, and patting themselves on the backs, for penning such smooth and careening text. It’s fun and gives you a nice warm feeling to write briefs that you think espouse fundamental truths, and it’s a nice fundraising rouse for R Street and WikiMedia.

But the brief does nothing to further the actual question presented — whether the government edicts doctrine (a judicially created exception to copyright) attaches to non-binding pronouncements by government authorities. The historical examples cited in the R Street brief have nothing to do with whether government pronouncements are protected by copyright, and as much as I sympathize with their position, a fair analysis of history does not support R Street’s position. Not even close.

The brief conveniently neglects the long historical English common law tradition known today as “Crown copyright,” in which the crown had the exclusive right to reproduce and disseminate government-created works, including enacted laws. The Crown copyright doctrine exists (in some form) in Commonwealth countries including UK, Australia, Canada, among others. The Crown copyright doctrine, which dates back centuries, didn’t just cover annotations. Yup, folks, it also covered the actual laws themselves. A primary justification for Crown copyright was that giving the monarchy the exclusive right to print and distribute the laws allows it to ensure the accuracy and correctness of what gets disseminated.

One can argue with whether the Crown copyright rationale has any justification today, in an era in which instant Internet access to official authoritative legal sources is just a click away, or if it ever had a legitimate justification. But R Street is barking down the wrong road arguing that a historical analysis supports its view that laws (and by extension, annotations of them) should be free-and-open for all, and usable for any purpose. If you go back even further, centuries before English common law and Crown copyright, you will find a multitude civilizations in which the public was not even permitted access to written laws, as they were often intertwined with religious texts and restricted to elders, learned scholars, religious authorities, and so forth.

Of course, this case only involves the annotations; no one is arguing that the statutes themselves should be protected. But R Street’s brief does nothing more than highlight the shaky ground on which the “government edicts” exception sits in U.S. law. We take for granted the concept that the “law” is something that should always be free and available for anyone, and usable for any purpose and subject to no protections, but that’s a fairly recent creation and a uniquely American one. You won’t find it in the Copyright Act, and it came about as a result of a judicial exception based on public policy, so those of you who decry the abstract idea exception to 101 (and are being intellectually honest) should also decry this exception to copyright law.

The worst part of this R Street brief is that it will, if anything, do exactly the opposite of what it intends. By arguing that “government edicts” cover a wide swath of government publications that are merely informative, and that there is essentially no line to be drawn, they are basically asking the Supreme Court to abolish (or at least weaken) copyright protection over state created or sponsored works. The Supreme Court won’t go there.

So, a pretty easy prediction is that the Supreme Court will reverse and hold that the “government edicts” doctrine applies only to expression that has the force of law, in this case, the actual statutory text the Legislature exacted. It’s an easy line to draw legally. For everything else, the Court will probably say, evaluate claims of copying under fair use/Section 107 of the Copyright Act. This doesn’t mean Georgia wins the case, of course; copying of the annotations may still be fair use (although I suspect it won’t if the copying is wholesale as it was here).