Talk:Edict of government

Georgia v. Public.Resource.Org Inc. and the public policy argument

This article is outdated. :)

While the Court mentioned the public policy argument, and it is certainly not wrong, the 'take home lesson' from the decision actually completely divorces the "government edicts principle" from that argument. Edicts are not valid subject matter for copyright simply because the Copyright Act never says they are, and never did. They are not "works", as defined in the Copyright Act, because they are not "creative expressions of originality", lack "human authorship", and are uncopyrightable "methods of operation". Thus, they cannot have "authors", since (under the Copyright Act) only "works" can have authors. Copyrights only exist where positive law (the Copyright Act) says they do, even in "common law" countries like the UK, since they never existed until the Copyright Act was written. The UK had to write a positive law to create Crown Copyright, and even there edicts are not of human authorship... the copyright vests in the monarchy itself, the "Crown", not the person sitting in the chair. In the United States, the sovereign is "we the people", not the body or official who has the "sovereign authority" to make an edict, and "we the people" cannot be the "author" of our edicts, since they are not "works". The Copyright Act simply never says so. "We the people," not as "a group of people", but as the sovereign, a "thing itself", are not 'a human being'. Legislators, judges, etc. are simply "our" scriveners when they write the law down.

Edicts are essentially monkey selfies, under US law.

The 'line of reasoning' that the Court was following, that they did not explain completely (they are writing a decision, not a dissertation, and will only say what the law is, reiterate what they have said before, and then address the arguments actually made at trial; the "questions they were asked") comes from here:

Balganesh, Shyamkrishna and Menell, Peter S., "The Uncopyrightability of Edicts of Government" (2019). Faculty Scholarship at Penn Law. 2111.[1]

This was a Amicus brief filed in the case, by two "law professors at the University of Pennsylvania and the University of California who study and teach intellectual property law", that "explores the interplay of copyright law and the edicts of government doctrine".

Since this paper is copyrighted, I cannot quote them extensively here, and they make the argument far better than I possibly can. The Court rather obviously (IMO), based on how they explained their decision, agreed with this. If nothing else, read the paragraph that spans pages two and three, the second paragraph of the "summary of argument".

In the decision, the Court was not (as was written over and over in the media) "expanding the scope of" the government edicts doctrine, they were expanding the list of instances in which they have "validated it applies" in US case law. The 'official proclamation' of what US "law" (statutory, case law, treaties, etc.) regarding copyright is, the Compendium, didn't change their "list" of examples of edicts (which goes far beyond the scribblings of judges and legislators) with the new edition. The USCO would never have considered the "job title" of a person when deciding if something was an edict, simply if it actually "was" an edict, because the law had never copyrighted edicts since "time immemorial", full stop. Similarly, they would not say "all writings by people with this job title are edicts", because it's not "who" made it that makes something an edict, it's that "who made it" actually had the sovereign authority to make one, and that this particular thing "is" one. Being a "work" has to come first, and edicts of any kind simply aren't, and never were, in the US, because the Copyright Act doesn't say so. The Court has never said "no, the statute actually does say that edicts are copyrightable works, you are reading it wrong". They have instead 'validated', since Wheaton, that the Copyright Act indeed doesn't say that, and never did; and that yes, this or that "particular thing" is also an edict. They haven't defined what an edict "is", because you can find that in any law dictionary.

This case only rose to the level of the Supreme Court, finally, because Public Resources deliberately provoked the State of Georgia into suing them in an attempt to enforce their obviously bogus copyright claim, and refused to settle (as has happened in such cases for decades) with the actual intent of performing a public service by making every State have to stop, because now any court in the country will just throw out any attempt to enforce such a copyright. Such copyright claims by States have always been unfounded, since "time immemorial", and now there is a precedent to point at. The obvious is now case law, binding all lower courts, so States can't make defendants waste time and money rebutting something that is obvious, just because it had never actually been ruled on, in at attempt to get them to settle, as they had done for decades in a total abuse of the legal system.

The "public policy argument" just goes to the moral reason why the common law is that "governments are obligated to publish their edicts and see that they are distributed as widely as possible." Not having a time machine, this Court decision can't change that, nor what the "governments edicts principle" is. They cannot "expand" it, they can only say whether or not it applies in a particular case. To change "the law" would require an Act of Congress similar to when the UK created Crown Copyright, and would nullify the validity of the principle in US law, and replace it with whatever the new statute said. Jarnsax (talk) 23:47, 6 October 2022 (UTC)

On "common law" and copyright

As a 'footnote', lol, there is no such thing as "common law" in the United States, at the federal level. The creation of a new government at the time of the Revolution nullified all existing laws that hadn't been passed by a colonial legislature.... the "king's writ" no long had any authority, and neither did any other British law. The Founding Fathers realized this. The also realized that starting over, rewriting hundreds of years of British law from scratch, was an insane idea, and that suddenly having things like murder, rape, arson, et al. suddenly be "not against the law" would be extremely bad. It also would have effectively "unmade" any colonial government that had been created directly by a British law, instead of having been "made" independently over here, with permission from the King but not by his authority.

So, one of the first things that they did was pass an Act of Congress that effectively said "(most) laws that were in force in the colonies at the time of the Revolution are still laws until we say otherwise." This brought large amounts of common, statute, and case law over here. They did not copy the British law into US law, it's not "part of" US law, but it is most certainly "law" in the United States (unless they have later said otherwise), by statute. Such laws, while not 'codified' in the US Code, are statute law here, despite being referred to as "common law". So, "time immemorial" in the United States is pre-1776, and the US "principle" would include "without copyright" since that was well understood in England by then, and is statute law in the United States. The Supreme Court has been telling us so ever since Wheaton.

Usually "common law copyright" refers to the fact that a persons unpublished writing were simply private property, and taking them for use without permission was simply theft. This idea also came into US law, as "common law". Jarnsax (talk) 01:11, 7 October 2022 (UTC)

Even if this part sounds like some kind of weird fringe legal theory, because of my 'tone', it's not. See reception statute#United States for the history.

Also, the very first sentence of the Wheaton v. Peters syllabus...

"From the authorities cited in the opinion of the Court and others which might be referred to, the law appears to be well settled in England that since the statute of 3 Anne, the literary property of an author in his works can only be asserted under the statute..."

The Court is acknowledging this history here, in that the mention of the British statute is relevant.

Also, see:

• Bracha, Oren (2010). "The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant" (PDF). Berkeley Technology Law Journal. 25: 1427, 1440. Archived from the original (PDF) on 2013-05-12.

From page 1453: "To put it bluntly, America’s first federal copyright enactment—the 1790 Copyright Act—is the Statute of Anne phrased in somewhat more modern language..." they just made what "was the law" in England, regarding copyright, "the law" in the US, including the interpretations of what it "meant" (the principle). They essentially "made the same edict", with the intent for it to be the same, and mean the same thing. Again, the Wheaton Court specifically acknowledged this. Jarnsax (talk) 06:39, 7 October 2022 (UTC)

Wheaton says this fairly explicitly, later on:

• "It is clear there can be no common law of the United States"
• "There is no principle which pervades the union and has the authority of law that is not embodied in the Constitution or laws of the union."
• "When a common law right is asserted, we look to the state in which the controversy originated."

Any "common law" rule, and the "case law" about what it meant, had to explicitly be "created" as law, by "edict" of "we the people" of the United States, or the particular State, and was thus either constitutional or statutory law. Jarnsax (talk) 07:53, 7 October 2022 (UTC)

• It's worth noting, with regards to copyright discussions elsewhere (it applies to English Wikisource) the WMF, at meta:United States non-acceptance of the rule of the shorter term#Official works politely asks that we not ignore claims of copyright in "edicts" that other governments make, even though US law says we can. It doesn't apply to Commons, because of the "at home too" rule there. I mention this because I just spent way too many words establishing (when you add in what the meta page is about) that we can, and they would probably prefer to not be sued by the governments of foreign countries, given they have chapters worldwide. Jarnsax (talk) 03:36, 7 October 2022 (UTC)