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121 Colum. L. Rev. Forum 1 (2021)

handle is hein.journals/sidbarc121 and id is 1 raw text is: COLUMBIA LAW REVIEW FORUM
VOL. 121                    JANUARY 18, 2021                   PAGES 1-22
LONG LIVE THE COMMON LAW OF COPYRIGHT!:
GEORGIA V. PUBLIC.RESOURCE.ORG, INC. AND THE
DEBATE OVERJUDICIAL ROLE IN COPYRIGHT
Shyamkrishna Balganesh*
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 impli-
cations 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 copy-
right 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.
INTRODUCTION
In its much-anticipated decision in Georgia v. Public.Resource.Org, Inc.
(PRO), a 5-4 majority of the Supreme Court reaffirmed the modern
significance of copyright's ancient government edicts doctrine, which
denies copyright protection to official texts created under the authority of
law.1 In identifying the animating principle underlying the doctrine as the
* Professor of Law, Columbia Law School. Many thanks to Mitch Berman, Jane
Ginsburg, Peter Menell, Gideon Parchomovsky, Christopher Yoo, and participants at a Penn
Law Faculty Ad Hoc Workshop for helpful comments and suggestions. Tiffany Keung
provided excellent research assistance.
1. 140 S. Ct. 1498, 1503-04 (2020). Even prior to oral argument, the case received a
significant amount of press coverage and publicity, in recognition of the substantive issue at
stake. See, e.g., Editorial, The Law©?, N.Y. Times (June 25, 2019), https://www.nytimes.com
/2019/06/25/opinion/copyright-law.html (on file with the Columbia Law Review); Adina
Solomon, Can States Copyright Annotations to Their Own Laws?, U.S. News & World Rep.

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