Copyright in State Legal Materials – Looking Back to 1888

The U.S. Supreme Court is set to hear argument in Georgia v. Public.Resource.Org Inc. in about two months, with petitioner’s briefs already in, and respondent’s briefs were submitted yesterday.  The question presented is fairly simple and a matter of law – “Whether the government edicts doctrine [(that they are not protectable by copyright)] extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.”

As the 11th Circuit noted below, in holding that the annotations could not be protected by copyright, the Supreme Court addressed this question three times in the nineteenth century, but not since.  Those three cases will be what the Supreme Court will be basing its decision on, but two of them are quite obscure.  So as not to bury the lede, the archival contribution of this post is that I’ve scanned the briefs from one of these cases – Banks v. Manchester – and shared them online (the other two were already available)- you can access them here.  I also scanned the case file from the U.S. National Archives, comprising mainly correspondence between the parties and the Court – you can download the PDF here.

With that said, the first case is not obscure to those familiar with copyright law – it is the famous case of Wheaton v. Peters, the first copyright case before the U.S. Supreme Court, decided in 1834.  In Wheaton the Supreme Court held that its own opinions could not be protected by copyright (to simplify highly).  I won’t spend too much time talking about Wheaton, and those who aren’t familiar should read Craig Joyce’s history of the case.  This is a good place to point out two things I’ve found over the years about Wheaton – the first is that the lengthy dissenting opinion of Justice Baldwin was not included in the printed version of the case, and although it was included in the 1884 revised version of the U.S. Reports, it seems that no interactive services include it.  The second is a letter from Wheaton’s counsel to the State Department, requesting that they file an affidavit that they have Wheaton’s books in their collection, eliding the fact that it wasn’t clear they were deposited in accordance with copyright procedure under the then-in-force (and rather byzantine) 1790 Copyright Act.

In 1888 the issue of copyrightability of government materials, this time from a state, once again arrived at the Supreme Court, in two distinct cases.  Or rather it arrived several years earlier, but didn’t make it to a decision until 1888.  The two cases – Banks Bros. v. Manchester and Callaghan v. Myers, were both filed with the U.S. Supreme Court in 1885, but the situation at the Supreme Court was dire.  The Supreme Court was hearing 500+ cases a year, and the Justices were also riding circuit and hearing cases around the country.  The relative ubiquity of railroad transit made this simpler than it had been decades earlier but the workload was overwhelming, and the Supreme Court had a backlog of 3-4 years in its docket.  Chief Justice Waite died in 1888, in what many at the time attributed to overwork.  With the confirmation of Chief Justice Fuller the many lingering cases were heard with a new speed, even as the new Chief Justice and others began looking towards a more permanent solution that led to the passage of the Judiciary Act of 1891 establishing the Circuit Courts of Appeal and the Certiorari Process.

Both opinions were assigned to Justice Samuel Blatchford, who was the obvious choice as both an experienced jurist and noted law reporter himself.  He served as reporter of decisions for the federal courts in the Second Circuit beginning in 1845, producing 24 volumes, all the way until 1888 (the same year he wrote these opinions).  Over that time he was named to the District Court (in 1867), Circuit Court (in 1878, but note that it was a trial court then), and U.S. Supreme Court (in 1883, but he continued to ride circuit as Circuit Justice to the 2nd Circuit).  When he had started law reporting he was 25 and he was now 68, having been engaged in law reporting for 43 years.

The two cases were not heard quite simultaneously, but were quite close together.  The record was received in Banks on September 23, of 1885, while the record in Callaghan was received October 5, 1885.  The arguments were both a little over three years later – October 29 for Banks and November 8-9 for Callaghan.  However, the decision in Banks was ready about three weeks after the argument, while the decision in Callaghan wasn’t ready until December 19 of 1888.¹

Banks v. Manchester was perhaps the simpler case, involving the reprinting of two Ohio Supreme Court cases in the American Law Journal, without any of the reporter’s annotations.  Banks (in my view) came down to three issues: (1) Are state judicial opinions copyrightable, (2) if yes, whether the reporter can take a copyright in them, since he did not write them, and (3) can a state register a copyright under the law then in force?  Justice Blatchford held that the answer to the first question is “no,” mooting the second question and declining to address the third.  The core of his holding was that

[T]here has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, that no copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute. [(emphasis in original)]

The briefs give us more insight into the arguments on these key questions.  There’s an old joke that when someone says that there is a consensus, or that something requires no citation, it’s because there’s no clear source of authority.  And the brief for Banks points this out:

The Circuit Court seems to admit that the State may copyright the volumes of the reports, but holds that “it protects only the work of the reporter.” Why this should be so it is difficult to see.
…
The State of Ohio pays the Judges of its Supreme Court, and also the reporter, what is considered and accepted by them as an adequate compensation for their services, and for this reason neither of them are entitled to claim any literary property in their work done for the State. They are paid fixed salaries, and this by their consent impliedly given when they accept the office, is in full of their services, and the result of their labors belong to the State. By their labors they produce something of value. They create a kind of property which is of real value to whoever may maintain a right to it.

The brief for Banks continues this policy argument, following citation to authority, at the tail end of the brief, focusing on the danger of incorrect piratical versions of the law.

The brief for Manchester leans heavily on Wheaton v. Peters, although there are digressions as to the nonexistence of federal common law.  I think the pithiest distillation of their position can be found at page 16 of the brief, in a statement that is reminiscent of the arguments being made to the Supreme Court in this term:

In view of the fact that it is an unquestionable principle of public policy that knowledge of the law, whether made by the legislature or by the courts, should be promptly promulgated, it is difficult to see how any State can, consistently with this acknowledged principle, deprive her citizens of the use of this most effective instrumentality, and especially where the ground for such action is apparently based upon the sacrifice of a public benefit to the advancement of a private end.

Callaghan was decided a month later, and the Supreme Court held that the copying of the complete official reporter, including the headnotes, constitutes copyright infringement.  Unlike Banks v. Manchester, the briefs and (very lengthy) record are reproduced in full in Gale’s Supreme Court Records and Briefs database.  There too, the arguments are instructive.  Counsel for Callaghan argued that the “sole test” as to whether copyright existed on page 45 of his (Appellant’s) brief, “is whether the writer is engaged in a private enterprise, and therefore an author within the meaning of the constitution, or whether he is engaged in a public service, which forever dedicates the result of his labors to the public, whom he serves.”  Counsel continued:

The reports of those decisions by the official reporter are made by statute evidence of the law. They are, therefore, publications of the laws of the state, in like manner as are the published statutes and acts of legislature. Public policy demands the widest and freest dissemination of the laws, and any restraints or fetters placed upon such dissemination, are opposed to the wisest public policy, and contrary to the entire spirit and genius of our jurisprudence. The humblest citizen is presumed to know the law, and ignorance of its provisions can never avail him as an excuse for its violation. Hence the necessity of the widest publicity to every expression of the law, whether legislative or judicial, and of the utmost ,freedom in extending and encouraging its publication. To permit a private citizen to become the exclusive proprietor of the published acts of the legislature, or of the published decisions of the courts, or to recognize any element of, private or literary ownership in such publications, is in direct contravention of these elementary principles.

The brief for Myers (Appellee’s brief at 27-28) argued that in not giving the official reporter – a private citizen – protection by copyright, he was essentially being set up to fail in the marketplace by being undercut by competitors who would not need to do the same laborious work he was required to do –

The Supreme court of this state is required by law to put its opinions in writing, and the clerk of the Supreme court is required to enter such opinions of record. Suppose there had been no reporter, as Mr. Freeman has been, and one of the judges had taken upon himself the labor of organizing these opinions into volumes, numbered and paged, with syllabi, head-notes, tables and index, such as in the books of appellee before the court, would not such judge have been entitled to a copyright to secure to him the beneficial result and financial fruit of this work? The state did not employ or pay him for this work…

Such a construction would impose upon the official reporter a gross injustice, in compelling him to perform this complicated and difficult variety of mental and physical work not specified in any contract with the state, and all for the privilege of delivering to the state a few volumes of reports at the price at which he sells to the public, and without any protection against competition with the public.

In evaluating the looming Georgia case, Callaghan seems the most on point, with Banks providing more general principles.  But the Supreme Court may find that the ground has shifted since Callaghan, especially since the reporter in that case was a private citizen.  I’m personally looking forward to finding out.

Edited to add: I meant to mention another case Banks Bros. was involved in a decade earlier, suing McDivitt, Campbell and Co. for copying the table of contents, case references, and index from their printed versions of the rules of New York courts. A printed version of the case file from the trial court is available via Gale’s Making of Modern Law database, containing the complaint, answer, testimony, and motion for an injunction. Rocellus S. Guernsey, who edited the defendant’s book, in his deposition, argued that “A fair abridgment would not be an infringement. A citation of authorities only would not, be an infringement, and would be a fair abridgment only.”

Judge Shipman of the Southern District of New York disagreed though, and granted a provisional injunction. then-District Judge Samuel Blatchford was surely familiar with this case – he was the one who reported it.