Document Type

Essay

Publication Date

2021

Disciplines

Constitutional Law | Intellectual Property Law | Jurisprudence | Law | Legislation | Supreme Court of the United States

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 Piece 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’s 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 lawmaking.

Comments

This article originally appeared in 121 Colum. L. Rev. Forum 1 (2021). Reprinted by permission.

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