There is an interesting copyright case before the Supreme Court this term, Georgia v. Public Resource.org. It is settled law that official edicts of the government – statutory texts, judicial opinions, agency rules – are not copyrightable. More about that in a moment. In this case, Georgia entered into a contract with Lexis to produce an annotated version of its code. The state gets editorial control, and Lexis gets exclusive publication rights. The product is the “Official Georgia Code Annotated” and is generally cited as the authoritative statement of Georgia law. Public Resource made copies of the OGCA publicly available for free, including the annotations. The state claims copyright over the annotations and sued to enjoin Public Resource. The question before the court is thus whether the annotations to state law are copyrightable, even given that the statutory text is not.
The case follows an appeal from a substantial Eleventh Circuit opinion, finding that the OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). There’s a lot to say, and much depends on the peculiar arrangement Georgia has with Lexis. For example, the OGCA both costs money and is taken to be authoritative over the unannotated version of the text made available for free; it is both the results of a heavily regulated legislative process and is routinely cited by Courts as authoritative in interpreting the law. What I want to focus on here, however, is the 11th Circuit’s discussion of authorship.
“Under democratic rule, the People are sovereign, they govern themselves through their legislative and judicial representatives, and they are ultimately the source of our law. Under this arrangement, lawmakers and judges are draftsmen of the law, exercising delegated authority, and acting as servants of the People, and whatever they produce the People are the true authors. When the legislative or judicial chords are plucked it is in fact the People’s voice that is heard. Not surprisingly, then, for purposes of copyright law, this means that the People, as the constructive authors are also the owners of the law. And in this way, any work of which the People are the constructive authors is intrinsically public domain material and is freely accessible to all so that no valid copyright can ever be held in it.” (20-1)
I’ve been interested in Foucault’s remarks on authorship for a while, and this seems to me to be a perfect example of the juridical function of authorship as Foucault articulates it. Recall that for Foucault, important to recognize that authorship does important political work, whatever one thinks of it as a way to approach textual interpretation. In particular, we are prone to organize texts according to “authors” in part as a strategy for managing meanings and assigning them to creators. Foucault says:
“The author is the principle of thrift in the proliferation of meaning. As a result, we must entirely reverse the traditional idea of the author. We are accustomed … to saying that the author is the genial creator of a work in which he deposits, with infinite wealth and generosity, an inexhaustible world of significations …. The truth is quite the contrary … the author does not precede the works; he is a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of fiction (Foucault Reader, pp. 118-119).
Here, naming the people as the author of governmental edicts enacts the juridical author function in at least three ways. First, it reduces the cornucopia of texts coming from the government into a coherent whole that can be said to be authored by the people, and it does this by pruning away those that cannot. The 11th Circuit opinion deals with this question quite directly, in considering which utterances from the government count. The limiting principle is basically that those with sovereign authority to bind people count, as distinct from the utterances of government officials acting in ways that do not have the force of law, or those officials acting in some non-official capacity. The court’s effort includes reference to the case law to decide which utterances are authored by the people and which are not: regulatory materials do, but other courts have declined to extend that distinction to things like tax maps created by a county assessor (19). The Court looks at several such criteria for narrowing and specifying which of the profusion of governmental texts can be said to be “authored” by the people. For example, the OGCA is supervised by a Code Commission consisting, in part, of legislators. The legislature votes on its results every year, and the product even gets to carry the state emblem; other annotations are prohibited from doing so (45). As the court notes, “whether or not a work is assigned the authoritative weight associated with law is deeply intertwined with the question of whether the work was made by the agents of the People in the legitimate exercise of delegated, sovereign power” (49).
Second, as the previous case suggests, it reduces the plurality of voices that actually created those texts into one authorial function. A Supreme Court opinion by Justice Marshall is law just as much as one by Justice Scalia; a bill text authored by Nancy Pelosi is just as much law as one authored by Mitch McConnell. Finally, it provides for an author that is continuous over time: the “people” exists independently of individual people’s lives.
If the “people” are the authors of the law, and if authorship serves a juridical function here, then it’s important to see the shadow work being done by the concept of “people.” Here, a detour into Hobbes underscores the point. For Hobbes, the “people” is precisely the juridical reduction that enables one to attribute agency and action to a group of people – née “multitude.” The split makes its first detailed appearance in De Cive, where he complains that political theorists “do not make a clear enough distinction between a people and a multitude” (DC XII.8). He continues:
“A people is a single entity, with a single will; you can attribute an act to it. None of this can be said of a multitude. In every commonwealth the People reigns; for even in Monarchies the People exercises power [imperat]; for the people wills through the will of one man. But the citizens, i.e. the subjects, are a multitude. In a Democracy and in an Aristocracy the citizens are the multitude, but the council is the people; in a Monarchy the subjects are the multitude, and (paradoxically) the King is the people. Ordinary people and others who do not notice this point, always speak of a large number of men as the people, i.e.as the commonwealth; they speak of the commonwealth having rebelled against the king (which is impossible) and of the people wanting, or not wanting, what malcontent and murmuring subjects want or do not want; under this label of the people, they are setting the citizens against the commonwealth, i.e. the Multitude against the people (DC XII.8).
For Hobbes’s mature work, of course, it is precisely the social contract that enables the construction of a people out of a multitude. As Malcolm Bull notes, Hobbes is picking up on Ciceronian and Augustinian themes here, against Aristotle, and as part of Hobbes’s general campaign against the Aristotelian “political animal.” Hence in Leviathan, we learn that the fact that we have government is evidence that a multitude cannot get its act together, qua multitude:
“For if we could suppose a great Multitude of men to consent in the observation of Justice, and other Lawes of Nature, without a common Power to keep them all in awe; we might as well suppose all Man-kind to do the same; and then there neither would be, nor need to be any Civill Government, or Common-wealth at all; because there would be peace without subjection” (L 17.4).
The only way to resolve this problem is to “conferre all their power and strength upon one Man, or upon one Assembly of men, that may reduce all their Wills, by plurality of voices, unto one Will.” But – and this is a point that often gets lost, Hobbes does not think that these individuals “transfer” their power to the sovereign agent. Rather, they authorize the sovereign to act on their behalf, and that act is itself constitutive of the commonwealth. The “people” is then available for optimization on biopolitical grounds. This constitutive act is for:
“every one to owne, and acknowledge himselfe to be Author of whatsoever he that so beareth their Person, shall Act, or cause to be Acted, in those things which concerned the Common Peace and Safetie …. This done, the Multitude so united in one Person, is called a Common-wealth, in latine Civitas” (L 17.13)
The implications of this procedure are clear in the next chapter, where Hobbes notes that there is no coherent way for a subject to complain that a sovereign’s actions are “unjust,” because the subject is himself the author of those actions. Thus, “It is true that they that have Soveraigne power, may commit Iniquity; but not Injustice, or Injury in the proper signification” (L 18.6).
One can of course also argue that the expectation that people obey the law means that they ought to have access to it; this is a point made by the 11th Circuit (48) and Hobbes. Indeed, Hobbes goes into considerable detail about the promulgation of law, which is built into its definition: “Command consisteth in declaration, or manifestation of the will of him that commadeth, by voice, writing, or some other sufficient argument of the same” (L 26.12). But laws require more: “Nor is it enough the Law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the Soveraign” (L 26.16). For this to happen, one requires recourse to knowledge of judicial opinions, official public registers, councils, etc. “by which all Lawes are sufficiently verified” (ibid.), and one is entitled to “recourse to the Registers” to know if what they’re about to do is legal or whether they’ve suffered a legal injury (L 26.18).
What I want to emphasize here in closing is that the popular sovereignty argument – the one that turns on the parallel juridical reductions of authorship and the people – is a separate argument, and it helps to explain why law has to be promulgated. This argument has a Hobbesian provenance, at least in the context of modern theory. In other words, Hobbes’s views about authorship and people don’t just bind you to the sovereign; they (more hopefully) entitle you to prevent privatization of access to the law.
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