Thomas, J., dissenting
all of which were originally prepared by the opinion’s authoring judge. This Court held that these materials were not the proper subject of copyright. In reaching that conclusion, the Court grounded its analysis in its interpretation of the word “author” in the Copyright Act. It anchored this interpretation in the “public policy” that “the judge who, in his judicial capacity, prepares the opinion or decision [and other materials]” is not “regarded as their author or their proprietor, in the sense of [the Copyright Act], so as to be able to confer any title by assignment.” Banks, 128 U. S., at 253. The Court supported this conclusion by stating that “there has always been a judicial consensus … 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.” Ibid. (emphasis deleted). And the Court observed that this rule reflected the view that the “authentic exposition and interpretation of the law … is free for publication to all,” which in turn prevents a judge from qualifying as an author. Ibid.
Importantly, the Court also briefly discussed whether the State of Ohio could directly hold the copyright. In answering this question, the Court did not suggest that States were categorically prohibited from holding copyrights as authors or assignees. Instead, the Court simply noted that the State fell outside the scope of the Act because it was not a “resident” or “citizen of the United States,” as then required by statute, and because it did not meet other statutory criteria. Ibid. The Court felt it necessary to observe, however, that “[w]hether the State could take out a copyright for itself, or could enjoy the benefit of one taken out by an individual for it, as the assignee of a citizen of the United States or a resident therein, who should be the author of a book, is a question not involved in the present case, and we refrain from considering it.” Ibid.
Finally, in Callaghan v. Myers, 128 U. S. 617 (1888), the
