This is the right legal interpretation. Copyright should fall under the Takings Clause.

James Hamilton, “Brief for International Code Council, Inc. And the American Gas Association as Amici Curiae Supporting Partners,” Georgia et al. v. Public.Resource.Org, Inc., https://www.supremecourt.gov/DocketPDF/18/18-1150/114334/20190830152451138_Amicus%20Brief%20-%20ICC%20and%20AGA.pdf

The Constitution also prohibits governmental takings of private property without just compensation. See U.S. Const. Amend. V (“nor shall private property be taken for public use, without just compensation”). Although the Court has not yet held specifically that copyrights are property for Takings Clause purposes, there is no reason for doubt. The Court has long used the language of property to describe copyrights—describing copyright legislation as creating a “literary property of an author in his works.” Wheaton v. Peters, 33 U.S. 591, 657 (1834) (emphasis added). Congress’s copyright legislation proceeds from “the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors” and that “[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” Mazer v. Stein, 347 U.S. 201, 219 (1954).

The Court has squarely held that state-law trade secrets are property under the Takings Clause. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-1004 (1984). Trade secrets are assignable, can be held in trust, pass to trustees in bankruptcy, and are often described as “proprietary interest[s]” and in terms of “ownership.” Id. at 1002. This reasoning applies with equal or greater force to copyrights and other categories of intellectual property. Cf. E. Enters. v. Apfel, 524 U.S. 498, 554 (1998) (Breyer, J., dissenting) (“The ‘private property’ upon which the Clause traditionally has focused is a specific interest in physical or intellectual property.”) (emphasis added).

In fact, the Second and Ninth Circuits—two circuits with extensive experience in copyright cases— have identified the particular tension between the Takings Clause and respondent’s specific legal theory. Again, that theory posits that incorporating copyrighted material into law eliminates a vested copyright. But as Judge Leval wrote for the Second Circuit in CCC Information Services, the theory that governmental adoption of privately authored works into law suffices to “deprive[ ] the copyright owner of its property would raise very substantial problems under the Takings Clause of the Constitution.” CCC Info. Servs., 44 F.3d at 74; accord Practice Mgmt., 121 F.3d at 520.

If incorporation of a privately authored work indeed destroys the private author’s copyright, governments may not constitutionally incorporate such works into law without paying just compensation for the copyright’s invalidation. The first government to incorporate specific copyrighted material into its laws would have to compensate the copyright owner not just for its own use of that material, but for the wholesale elimination of all of the author’s rights of ownership. That would create a substantial first-mover penalty for incorporation and require a radical shift in the practice of state and local governments throughout the country—to say nothing of the practice of private actors, such as ICC, that develop the works. In adjudicating the limited question presented by this case, the Court should be careful not to prejudge the Takings Clause questions that flow from respondent’s and the Eleventh Circuit’s views as to the effect of incorporation of privately authored works.

It has been suggested that any Takings Clause problem evaporates if the copyright owner has encouraged or permitted the government entity to incorporate the copyrighted work into its laws. See, e.g., Veeck, 293 F.3d at 803 (majority opinion). But in such circumstances, governments receive encouragement or permission on the mutual understanding that the private author retains the copyright despite the governmental use. See, e.g., id. at 822 (Wiener, J., dissenting) (“SBCCI expressly reserved its copyright in the codes.”). The fact that an author may encourage a government’s use of its work does not mean the author consents to relinquish its copyright altogether, least of all when both author and government believe and affirm that the specified governmental use is fully consistent with continuing copyright validity.

As with the Supremacy Clause, lower courts have barely brushed the surface of these issues, and they were not presented to the court below given the facts of this case. For this reason, too, the Court should reject respondent’s and the Eleventh Circuit’s broadly stated views.