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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. 1