throbber

`
`No. 18-1150
`================================================================================================================
`
`In The
`Supreme Court of the United States
`
`---------------------------------  ---------------------------------
`
`GEORGIA, ET AL.,
`
`Petitioners,
`
`v.
`
`PUBLIC.RESOURCE.ORG, INC.,
`
`Respondent.
`
`---------------------------------  ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Eleventh Circuit
`
`---------------------------------  ---------------------------------
`
`BRIEF OF PROFESSORS SHYAMKRISHNA
`BALGANESH AND PETER S. MENELL AS
`AMICI CURIAE IN SUPPORT OF RESPONDENT
`
`---------------------------------  ---------------------------------
`
`PETER S. MENELL
`Koret Professor of Law
` Counsel of Record
`UNIV. OF CALIFORNIA,
` BERKELEY SCHOOL OF LAW
`225 Bancroft Way
`Berkeley, CA 94720-7200
`(510) 642-5489
`pmenell@law.berkeley.edu
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`TABLE OF CONTENTS
`
`3
`
`Page
`INTEREST OF AMICI CURIAE .........................
`1
`SUMMARY OF ARGUMENT ..............................
`1
`ARGUMENT ........................................................
`3
`
`I. THE
`“EDICTS OF GOVERNMENT”
`DOCTRINE IS FIRMLY ROOTED IN
`FUNDAMENTAL COPYRIGHT PRINCI-
`PLES ..........................................................
`A. The Official Announcement of Law Is
`Not Copyrightable Authorship ............
`B. Legal Texts Are Methods of Operation
`that Constrain Expressive Choice and
`Are Ineligible for Copyright ................
`C. Authentic Statements of Law Entail
`the Merger of Idea and Expression .....
` II. THE OFFICIAL CODE OF GEORGIA
`ANNOTATED (O.C.G.A.) IS AN UNCOPY-
`RIGHTABLE EDICT OF GOVERNMENT .... 11
`A. An Edict of Government Does Not Need
`to Have the Force of Law ..................... 12
`B. Annotations Produced under the Osten-
`sible Authority of the State Qualify as
`Edicts of Government .......................... 19
`CONCLUSION ..................................................... 24
`
`3
`
`6
`
`9
`
`

`

`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Baker v. Selden. 101 U.S. 99 (1880) .............................. 6
`Banks v. Manchester, 128 U.S. 244 (1888) ......... passim
`Bleistein v. Donaldson Lithographing Co., 188
`U.S. 239 (1903) .......................................................... 4
`Burrow-Giles Lithographic Co. v. Sarony, 111
`U.S. 53 (1884) ........................................................ 3, 4
`Callaghan v. Myers, 128 U.S. 617 (1888)............ passim
`Computer Assocs. Int’l, Inc. v. Altai, Inc., 982
`F. 2d 693 (2d Cir. 1992) ............................................. 7
`Herbert Rosenthal Jewelry Corp. v. Kalpakian,
`446 F. 2d 738 (9th Cir. 1971) ..................................... 9
`Howell v. Miller, 91 F. 129 (6th Cir. 1898) ............ 22, 23
`Little v. Gould, 15 F. Cas. 604 (C.C.N.D.N.Y.
`1851) .................................................................. 17, 18
`Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F. 3d
`807 (1st Cir. 1995) ................................................. 6, 7
`Morrissey v. Procter & Gamble Company, 379
`F. 2d 675 (1st Cir. 1967) ............................................ 9
`Nash v. Lathrop, 6 N.E. 559 (Mass. 1886) ............ 15, 16
`Sega Enterps. Ltd. v. Accolade, Inc., 977 F. 2d
`1510 (9th Cir. 1992) ................................................... 7
`Urantia Foundation v. Maaherra, 114 F. 3d 955
`(9th Cir. 1997) ............................................................ 4
`Wheaton v. Peters, 33 U.S. 591 (1834) ................. 1, 3, 12
`
`

`

`iii
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`CONSTITUTIONAL PROVISIONS
`U.S. CONST., Art. I, § 8, Cl. 8 ......................................... 3
`
`STATUTES
`Copyright Act ...................................................... 4, 7, 10
`O.C.G.A. § 1-1-1 ............................................... 11, 12, 19
`O.C.G.A. § 1-1-7 ........................................................... 11
`17 U.S.C. § 102(a) .......................................................... 3
`17 U.S.C. § 102(b) .......................................................... 6
`17 U.S.C. § 505 .............................................................. 8
`17 U.S.C. § 507 ............................................................ 10
`
`RULES
`Sup. Ct. R. 37.6 ............................................................. 1
`
`OTHER AUTHORITIES
`2 HOWELL’S ANNOTATED STATUTES OF MICHIGAN
`iv (1883) ................................................................... 23
`Hector T. Fenton, Mr. Justice Blatchford. In Me-
`moriam, 41 Am. L. Reg. 882 (1893) ........................ 16
`
`
`
`
`
`

`

`1
`
`INTEREST OF AMICI CURIAE1
`The authors of this brief are law professors at the
`
`University of Pennsylvania and the University of Cal-
`ifornia who study and teach intellectual property law.
`Their research explores the interaction between statu-
`tory law and judge-made law in the evolution of U.S.
`copyright law.
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF ARGUMENT
`The “edicts of government” doctrine was first vali-
`
`dated by this Court in a series of nineteenth century
`cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834);
`Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v.
`Meyers, 128 U.S. 617 (1888). While the doctrine has
`never been directly recognized in the express wording
`of the copyright statute, it is nevertheless firmly rooted
`in foundational copyright principles that are them-
`selves reflected in the text of the statute.
`
`Three foundational copyright principles buttress
`
`the doctrine. First, copyrightable authorship does not
`extend to official announcements of law, the hallmark
`of edicts of government. Authorship as understood in
`this Court’s jurisprudence requires personalization, an
`
`1 Pursuant to Sup. Ct. R. 37.6, amici note that no counsel
`
`for a party authored this brief in whole or in part, and no counsel
`or party made a monetary contribution intended to fund the prep-
`aration or submission of this brief. No person other than amici
`curiae made a monetary contribution to its preparation or sub-
`mission. Petitioner and Respondents have consented to the filing
`of this brief.
`
`

`

`2
`
`attribute that is antithetical to official pronounce-
`ments of law, which are generated in an impersonal
`and ex officio manner. Second, all edicts of government,
`as legal texts, are methods of operation, rendering
`them uncopyrightable. Third, authentic statements
`of law entail the merger of idea and expression insofar
`as the expression underlying edicts of government are
`capable of being expressed in only a limited number of
`ways in order to preserve its authenticity.
`
`Consequently, the Official Code of Georgia (O.C.G.A.)
`
`is not copyrightable. Petitioners concede that the stat-
`utory content of the O.C.G.A. is uncopyrightable. Pet.
`Br. at 20. The annotations incorporated into the
`O.C.G.A. by the state legislature bear the imprimatur
`of the state and are therefore produced under the os-
`tensible authority of the state, which renders them an
`edict of government.
`
`Contrary to Petitioners’ argument, an edict does
`
`not need to have the force of law to qualify as an un-
`copyrightable edict of government. This Court’s own
`precedents contradict this position. Instead, faithful
`reading of these precedents suggest that something be-
`comes an uncopyrightable edict of government when it
`is produced under the ostensible authority of the state
`and thus receives a presumptively official status, ow-
`ing to its endorsement by the state. The process by
`which the annotations contained in the O.C.G.A. are
`adopted and merged with the statutory content therein
`constitutes the exercise of such ostensible authority,
`
`
`
`

`

`3
`
`rendering the O.C.G.A. an uncopyrightable edict of
`government.
`
`---------------------------------  ---------------------------------
`
`ARGUMENT
`I. THE “EDICTS OF GOVERNMENT” DOC-
`TRINE IS FIRMLY ROOTED IN FUNDA-
`MENTAL COPYRIGHT PRINCIPLES
`The edicts of government doctrine, which denies
`
`copyright protection to all official expositions of law, re-
`mains a well-established rule of copyright law affirmed
`by this Court’s jurisprudence. See Wheaton v. Peters, 33
`U.S. (8 Pet.) 591, 668 (1834); Banks v. Manchester, 128
`U.S. 244, 253-54 (1888); Callaghan v. Myers, 128 U.S.
`617, 646-50 (1888). While the doctrine conforms to
`longstanding “public policy,” Banks, 128 U.S. at 253, its
`roots lie in three fundamental copyright principles re-
`flected in the copyright statute. Contrary to what Peti-
`tioners imply, Pet. Br. 21-24, the edicts of government
`doctrine are therefore fully consistent with the text of
`the copyright statute. Indeed, it is demanded by copy-
`right law principles.
`
`
`
`A. The Official Announcement of Law Is Not
`Copyrightable Authorship
`Copyright protection subsists in “original works of
`
`authorship.” 17 U.S.C. § 102(a). Copyright’s require-
`ment of authorship derives from the text of the Consti-
`tution, U.S. CONST., Art. I, § 8, Cl. 8, a reality that this
`Court has long recognized. Burrow-Giles Lithographic
`
`

`

`4
`
`Co. v. Sarony, 111 U.S. 53, 56-58 (1884). All the same,
`the text of the copyright statute has never defined the
`terms “author” or “authorship,” leaving it to courts to
`construe the term consistent with the Constitution and
`the Copyright Act.
`
`This Court has understood the “author” in copy-
`
`right as the actor to whom a work “owes its existence”
`and as the “effective cause” of the work. Burrow-Giles,
`111 U.S. at 61. Authorship thus entails a causal rela-
`tionship between the actor and the work. Additionally,
`authorship has been understood to entail the “personal
`imprint” of an actor upon the work. Bleistein v. Don-
`aldson Lithographing Co., 188 U.S. 239, 250 (1903).
`Personalization is therefore an essential component of
`copyright authorship. This personalization implies
`that the personal identity of the actor responsible for
`original expression is a critical consideration in treat-
`ing it as a work of authorship. It is for this reason that
`original expression, however creative when fixed in a
`tangible medium, but nevertheless without an identi-
`fiable individual as the cause for its production, is in-
`eligible for copyright protection as lacking authorship.
`See, e.g., Urantia Foundation v. Maaherra, 114 F. 3d
`955, 958 (9th Cir. 1997).
`
`By contrast, the official announcement of laws—
`
`otherwise referred to as the act of “promulgation”—is
`an action performed ex officio. The personal, as opposed
`to official, identity of the agent undertaking the action
`is irrelevant to the formal status and validity of the
`announcement as law. When a legislative body enacts
`a law, the identities of the individual legislators
`
`

`

`5
`
`responsible for its passage do not matter. Their per-
`sonal identities are subsumed under their official role
`as validly elected legislators entitled to vote on the
`passage of the legislation. So it is with the exposition
`of law in judicial opinions, where the personal identity
`of the judge is irrelevant to the status and validity of
`the opinion. The work emanates from the judiciary as
`the product of constitutional and legislative authority.
`The promulgation of law is therefore a fundamentally
`impersonal action that is at odds with the idea of cop-
`yright authorship. This remains true of both promul-
`gation by statutes and regulations as well as the
`exposition of the laws in judicial opinions.
`
`It is this basic disconnect between the impersonal
`
`act of promulgation and the personal nature of author-
`ship that formed the principal basis of the Court’s opin-
`ion in Banks: “[i]n no proper sense can the judge who,
`in his judicial capacity, prepares the opinion or deci-
`sion, the statement of the case and the syllabus or head
`note, be regarded as their author.” Banks, 128 U.S. at
`253 (emphasis supplied). The reference to “judicial ca-
`pacity” is crucial here, since in it lies the fundamental
`distinction. When acting in an official judicial capacity,
`the judge’s personal identity is rendered irrelevant
`since the judge is speaking as a member of the court,
`thereby precluding a valid claim of copyrightable au-
`thorship. Conversely, when those very portions of a
`case report are prepared by an individual not acting in
`a formal judicial capacity and therefore not speaking
`for the court, i.e., the court reporter, they become fully
`eligible for copyright protection provided they meet
`
`

`

`6
`
`copyright’s other eligibility criteria. Callaghan, 128
`U.S. at 650.
`
`
`
`B. Legal Texts Are Methods of Operation
`that Constrain Expressive Choice and
`Are Ineligible for Copyright
` Methods of operation are ineligible for copyright
`protection under the terms of the copyright statute.
`See 17 U.S.C. § 102(b) (“In no case does copyright pro-
`tection for an original work of authorship extend to any
`. . . method of operation . . . , regardless of the form in
`which it is described, explained, illustrated, or embod-
`ied in such work.”). This rule reflects copyright law’s
`exclusion of functional expression, explained by the
`Court in Baker v. Selden. 101 U.S. 99 (1880). According
`to the rule and principles explained therein and since
`codified in the statute, a method of operation refers to
`the “means by which a person operates something.” Lo-
`tus Dev. Corp. v. Borland Int’l, Inc., 49 F. 3d 807, 815
`(1st Cir. 1995). In other words, it refers to the func-
`tional aspect of text that is directed at realizing an
`identifiable result.
`
`In Lotus v. Borland, the First Circuit concluded
`
`that the plaintiff ’s “command menu hierarchy” was an
`uncopyrightable method of operation insofar as it did
`“not merely explain and present” the functionality but
`instead represented the very “method by which” that
`functionality was realized. Id. at 815-16. Even though
`the hierarchy embodied “some expressive choices,” the
`court concluded that those choices were subsumed in
`
`

`

`7
`
`its overall functionality, thereby rendering it ineligible
`for copyright. Id. at 816. That case illustrates how the
`functionality underlying a method of operation may
`constrain the choice of expression, rendering such ex-
`pression unprotectable. The case determined that the
`method of operation constrained the plaintiff ’s choice
`of expression, rendering it additionally uncopyrighta-
`ble. Id. at 816 (“The ‘expressive’ choices of what to
`name the command terms and how to arrange them do
`not magically change the uncopyrightable menu com-
`mand hierarchy into copyrightable subject matter.”).
`Similar considerations can pertain to situations where
`“external factors” influence and dictate an actor’s
`range of expression. See Computer Assocs. Int’l, Inc. v.
`Altai, Inc., 982 F. 2d 693, 710-11 (2d Cir. 1992); Sega
`Enterps. Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522 (9th
`Cir. 1992) (“functional requirements for compatibility
`. . . are not protected by copyright. 17 U.S.C. § 102(b)”).
`
`Legal texts are methods of operation, much like an
`
`instruction manual. They attempt to bring about par-
`ticular results by controlling the behavior of citizens
`through the obligatory nature of the law. And, unlike
`ordinary text that has few external constraints, legal
`text dictates how citizens (and other relevant actors—
`e.g., government officials or courts) understand partic-
`ular language and modify their behavior accordingly.
`The choice of specific terms in a legal text and their
`arrangement represent choices motivated entirely by
`the functional purpose behind the law.
`
`As an illustration, consider the text of a provision
`
`in the Copyright Act dealing with attorney’s fees:
`
`

`

`8
`
`“Except as otherwise provided by this title, the court
`may also award a reasonable attorney’s fees to the pre-
`vailing party as part of the costs.” 17 U.S.C. § 505. The
`text of this provision contains expression. Yet, its ver-
`biage and structure are dictated entirely by the result
`that it seeks to communicate, defining a court’s discre-
`tion in awarding attorney’s fees. The first part of the
`sentence renders the provision subject to the rest of
`the statute, and its use of the term “may” (instead of
`“shall”) confirms a court’s discretion in making awards.
`To be sure, each of the provision’s terms and phrases
`has English language synonyms, but as choices made
`in creating a legal directive they reflect the constraints
`of external purpose—communicating the grant of this
`power to courts—rather than any literary flourish.
`Those circumstances render such expression ineligible
`for copyright.
`
`This Court in Banks recognized both the func-
`
`tional nature of the expression at issue as well as the
`constraint on expressive choices that it produced. As
`the opinion captured the matter, “[t]he whole work
`done by the judges constitutes the authentic exposition
`and interpretation of the law, which, binding every cit-
`izen, is free for publication to all.” Banks, 128 U.S. at
`253-54 (emphasis supplied). Petitioners misinterpret
`the reference to “binding” to mean that a legal text
`must have the “force of law” to qualify as a government
`edict. See infra pp. 12-18. The reference to the law
`“binding every citizen” is instead a recognition of the
`innately functional nature of government edicts, re-
`gardless of their precise source. The judge’s work in
`
`

`

`9
`
`ensuring the “authentic exposition” of the law in turn
`implies a constraint—on form and verbiage—that ac-
`companies the production of government edicts, ren-
`dering them ineligible for copyright protection.
`
`
`
`C. Authentic Statements of Law Entail the
`Merger of Idea and Expression
`As a related matter, the “authentic[ity]” in “expo-
`
`sition” of the law accompanying a government edict en-
`tails the merger of expression and idea, rendering it
`further ineligible for copyright protection. A natural
`corollary to copyright’s rule disfavoring protection for
`functional expression, the merger doctrine denies pro-
`tection “when the uncopyrightable subject matter is
`very narrow, so that ‘the topic necessarily requires,’ . . .
`if not only one form of expression, at best only a limited
`number.” Morrissey v. Procter & Gamble Company, 379
`F. 2d 675, 678-79 (1st Cir. 1967). “When the ‘idea’ and
`its ‘expression’ are thus inseparable, copying the ‘ex-
`pression’ will not be barred.” Herbert Rosenthal Jew-
`elry Corp. v. Kalpakian, 446 F. 2d 738, 742 (9th Cir.
`1971).
`
`Government edicts purport to be authentic pro-
`
`nouncements of law, whether they be judicial opinions,
`legislative statutes, or administrative regulations. Ju-
`dicial opinions expounding or interpreting “the law”
`choose expression that reflect the judge’s understand-
`ing of the law, be it statutory or common law. Statutes
`and regulations, in turn, declare “the law” in their
`very text. This commitment to authenticity severely
`
`

`

`10
`
`circumscribes the value in any expressive variation
`that might be introduced in subsequent expositions of
`the law. Any restatement of the law using expression
`that is different from the words used in the govern-
`ment edict risks undermining its meaning and authen-
`ticity as a binding statement of law.
`
`Consider another section of the Copyright Act: “No
`
`civil action shall be maintained under the provisions of
`this title unless it is commenced within three years af-
`ter the claim accrued.” 17 U.S.C. § 507. A creative and
`perhaps more efficient restatement of this provision
`reads: “A maintainable civil action under this title
`must be commenced within three years from the ac-
`crual of the claim.” To most people reading the restate-
`ment, it may well communicate the same meaning as
`the actual statutory text. Nonetheless, the restatement
`is no longer an authentic statement of the law. By al-
`tering the wording and structure of the original provi-
`sion, it introduces new terminology and therefore
`abandons its authenticity as an authoritative state-
`ment of the law. It thereupon loses its formal status as
`such. This Court is intimately familiar with the im-
`portance of statutory and jurisprudential wording to
`the explication of law.
`
`It is this analytic dimension that the merger doc-
`
`trine captures in relation to government edicts. An
`edict’s commitment to authenticity in exposition, a pre-
`requisite for its binding nature as “law,” necessitates
`verbatim wording, implying that the “law” contained in
`the edict is only ever capable of expression in one or a
`
`

`

`11
`
`limited number of ways, effectively merging the law
`and its exposition.
`
`* * *
`
`Consequently, the government edicts doctrine
`
`finds support in fundamental copyright doctrines.
`Copyright’s authorship, functionality, and merger col-
`lectively buttress the government edicts doctrine by
`rendering edicts of government uncopyrightable.
`
`
`II. THE OFFICIAL CODE OF GEORGIA ANNO-
`TATED (O.C.G.A.) IS AN UNCOPYRIGHTA-
`BLE EDICT OF GOVERNMENT
`The Official Code of Georgia Annotated is pub-
`
`lished by the State of Georgia and is the only compila-
`tion of the state’s official statutory code that is publicly
`available. It consists of the state code enacted by the
`legislature along with annotations prepared by the
`publisher, both of which are merged into a common vol-
`ume. O.C.G.A. § 1-1-1. The annotations comprise “such
`materials as summaries of judicial decisions interpret-
`ing or applying particular statutes.” Pet. Br. at 2.
`
`Petitioners concede that the statute itself is un-
`
`copyrightable as an edict of government. Id. at 2-3. At
`issue is the copyrightability of the annotations. While
`created by a private party under direction from the
`state, the annotations do not have the force of law
`as such. See O.C.G.A. § 1-1-7. They are nevertheless
`adopted through a formal vote of the state legislature,
`
`

`

`12
`
`merged with the statute, and collectively published “by
`authority of the state.” O.C.G.A. § 1-1-1.
`
`Although the annotations do not have the force of
`
`law and are therefore not binding as such, they none-
`theless fall within the edicts of government doctrine.
`They are prepared under the direction of the legisla-
`ture, and their adoption and merger into the enacted
`statute reveals that they are created under the osten-
`sible authority of the state, making them uncopyright-
`able edicts of government.
`
`
`
`A. An Edict of Government Does Not Need
`to Have the Force of Law
` Without any basis in precedent or the statute, Pe-
`titioners contend that in order to qualify as an edict of
`government under the doctrine as developed by this
`Court, the edict must have the “force of law.” Pet. Br. at
`32. As Respondent rightly notes, this argument flies in
`the face of the very precedent upon which Petitioners
`rely and introduces an artificial constraint into the
`working of the doctrine, leading to absurd results.
`Resp. Br. at 40.
`
` While Petitionesr rightly note that the Court’s
`opinion in Wheaton has been understood as recogniz-
`ing that the annotations at issue in the case were
`copyrightable, it mistakenly concludes that this was
`because those annotations lacked binding effect. Pet.
`Br. at 33. As Respondent correctly argues in its account
`of the history surrounding Wheaton and the parties’
`positions therein, the reason had to do with the
`
`

`

`13
`
`manner in which those notes and annotations were
`prepared in the case. Insofar as they were not prepared
`by the judges themselves but instead independently
`by the court reporter, they were seen as the legitimate
`result of the reporter’s own creative effort, despite
`lacking any binding effect as law. Resp. Br. at 24-26.
`
`Indeed, this understanding informed this Court’s
`
`twin opinions in Banks and Callaghan, authored by
`the same justice within the same month. In the latter
`of the two cases, Justice Samuel Blatchford’s opinion
`allowed the court reporter to assert a copyright claim
`in parts of the report that went beyond the “opinions of
`the judges”. Callaghan, 128 U.S. at 647. That case read
`Wheaton and its subsequent remand to stand for the
`proposition that the elements of the reports “not em-
`bracing the written opinions of the court, namely, the
`title-page, table of cases, head-notes, statements of
`facts, arguments of counsel, and index . . . may be the
`lawful subject of copyright.” Id. at 649. Yet some weeks
`earlier, Justice Blatchford’s opinion denied the copy-
`rightability of not just the judicial opinions them-
`selves, but also the statements of cases, syllabi, and
`headnotes. Banks, 128 U.S. at 253. The reasoning was
`simple: Unlike in Callaghan, the statements of cases,
`syllabi, and headnotes that went into the reports in
`Banks were prepared by the judges themselves rather
`than by the court reporter. Id. at 251.
`
`Banks underlines this point through its repeated
`
`emphasis on the work actually performed by a judge.
`This Court considered the point obvious when it
`
`
`

`

`14
`
`emphasized that “[in] no proper sense can the judge
`who, in his judicial capacity, prepares the opinion or
`decision, the statement of the case and the syllabus or
`head note, be regarded as their author or their propri-
`etor.” Id. at 253. The work of a judge was the key deter-
`minant.
`
`Judges . . . can themselves have no pecuniary
`interest or proprietorship, as against the
`public at large, in the fruits of their judicial
`labors. This extends to whatever work they per-
`form in their capacity as judges, and as well to
`the statements of cases and head notes pre-
`pared by them as such, as to the opinions and
`decisions themselves.
`
`Id. (emphasis supplied).
`
`Banks specifies that, in its answer to plaintiff ’s
`
`bill, the defendant elaborated on the role of the court
`reporter in the state of Ohio at the time. The answer
`averred that the opinions constituting the reports
`
`were exclusively the work of the judges com-
`posing those courts; that the reporter per-
`formed no work in preparing the said opinions
`and decisions; that it is the universal custom
`and practice of those courts that the judge to
`whom the duty is assigned of preparing the
`opinion, prepares not only the opinion but also
`the statement of the case and the syllabus, the
`latter being subject to revision by the judges
`concurring in the opinion; that the reporter
`takes no part, and performs no labor, in pre-
`paring the syllabus, the statement of the case
`and the opinion.
`
`

`

`15
`
`Id. at 250. Banks based its decision on the uncopyright-
`ability of the opinions in principal part on these facts,
`which have all to do with the judicial origins of the un-
`copyrightable elements and nothing whatsoever to do
`with their binding nature. See id. at 251.
`
`Petitioners base its argument on the sole use of
`
`the phrase “binding every citizen” used by Banks in
`conjunction with “the authentic exposition and inter-
`pretation of the law.” Id. at 253; Pet. Br. at 40. By
`cherry-picking this phrase and using it out of context,
`Petitioner ignores its origins altogether. As the opinion
`in Banks makes clear through citation, this phrase
`originates in the Massachusetts case of Nash v. Lath-
`rop, 6 N.E. 559 (Mass. 1886), decided two years before
`Banks and Callaghan.
`
` While Nash raised questions about the copyright-
`ability of judicial opinions and the scope of such copy-
`right, the court chose to decide the case on “a narrower
`question” of interpreting the contract between the
`state and the publisher to see if that contract had con-
`ferred upon the publisher the right to prevent others
`from making the opinions public until they were first
`published by them. Nash, 6 N.E. at 560. And to inform
`its analysis, Nash observed:
`
`The decisions and opinions of the justices are
`the authorized expositions and interpreta-
`tions of the laws, which are binding upon all
`the citizens. They declare the unwritten law,
`and construe and declare the meaning of the
`statutes. Every citizen is presumed to know
`the law thus declared, and it needs no
`
`

`

`16
`
`argument to show that justice requires that
`all should have free access to the opinions,
`and that it is against sound public policy to
`prevent this, or to suppress and keep from the
`earliest knowledge of the public the statutes,
`or the decisions and opinions of the justices.
`. . . It can hardly be contended that it would
`be within the constitutional power of the leg-
`islature to enact that the statutes and opin-
`ions should not be made known to the public.
`
`Id.
`
`The reference to “binding” was therefore an expla-
`
`nation for the court’s conclusion that the legislature
`had an obligation to publicize its laws, both judge-
`made and statutory. Indeed, Justice Blatchford uses it
`as such in Banks, since it follows on the heels of his
`reference to “public policy,” which was precisely the
`basis for the court’s non-copyright decision in Nash.
`Banks, 128 U.S. at 253. Petitioners miss this lineage
`altogether in its simplistic attempt to bootstrap the
`idea of “binding law” into the edicts of government doc-
`trine.
`
`Appreciating this nuance is critical to understand-
`
`ing Justice Blatchford’s opinions in Banks and Calla-
`ghan, since he was acutely aware of the role that court
`reporters played in the preparation of case reports.
`Justice Blatchford himself served as a court reporter
`to the courts in the U.S. Circuit Court for the Second
`Circuit and simultaneously published Blatchford’s Cir-
`cuit Court Reports between 1852 and 1888. See Hector
`T. Fenton, Mr. Justice Blatchford. In Memoriam, 41 Am.
`
`

`

`17
`
`L. Reg. 882, 882-83 (1893). And in this capacity, he pro-
`duced the report for the leading New York decision on
`the copyrightability of judicial opinions, Little v. Gould,
`15 F. Cas. 604, 612 n.1 (C.C.N.D.N.Y. 1851) (“Reported
`by Samuel Blatchford, Esq., and here reprinted by per-
`mission.”).
`
`At issue in Little was a New York statute that for-
`
`bade any assertions of copyright in the judicial deci-
`sions of the court of appeals, and further vested the
`copyright in “any notes or references made by the
`state reporter” in the state, for public benefit. Id. at
`608. The question in the case revolved around under-
`standing what these “notes and references” could be
`and whether it encompassed content produced by a
`court reporter entirely gratuitously, and without obli-
`gation. The court in Little answered this question in
`the negative, concluding that the phrase “notes and
`references” was limited to those portions of the reports
`“constituting an essential ingredient of their integral
`composition, and which the state reporter, as such, was
`therefore bound to supply.” Id. at 609. These included
`the “summary of the points decided by the court,” “the
`footnotes” therein, and the summary of the parties’ ar-
`guments—all prepared by the court reporter. Id. Out-
`side of this phrase were the “abstracts of the pleadings
`and statements of facts,” which formed the basis of the
`opinions themselves and anything else that the re-
`porter included. Id. at 610.
`
` While Little was based on a state statute, the
`court’s attempt to differentiate between the copyright-
`able and uncopyrightable parts of a reporter’s work
`
`

`

`18
`
`was driven entirely by the official function of the court
`reporter. Nowhere does the court tie the copyrightabil-
`ity of a part of the report, or indeed its lack thereof, to
`the question of whether that part is binding. Gratui-
`tously, as opposed to obligatorily, produced elements of
`the court report were copyrightable by the court re-
`porter because they were in no sense part of the opin-
`ion, nor of the “notes and references” accompanying it.
`
`The demarcation at issue in Little formed the ba-
`
`sis of Justice Blatchford’s reasoning in Callaghan, al-
`lowing the copyrightability of those parts of the reports
`prepared entirely by a court reporter. This influence is
`borne out in the Callaghan opinion’s reference to the
`“absence of a prohibitory statute” which was being in-
`terpreted in Little. See Callaghan, 128 U.S. at 647.
`Without such a prohibition, all elements of a case re-
`port produced by a court reporter are rendered copy-
`rightable, including those generated in the exercise of
`the reporter’s official functions. Nothing whatsoever
`turns on whether the elements are binding and have
`the force of law as such.
`
`Petitioner’s argument about the need for an edict
`
`of government to have the “force of law” is there

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