never copyrighted."[1] Based on the acknowledged and incontestable analogy with legislative acts, Wheaton held unanimously that "the law" in the form of judicial opinions may not be copyrighted.
The same broad understanding of what constitutes "the law" for copyright purposes underlies the Court's later decision in Banks v. Manchester, 128 U.S. 244, 9 S.Ct. 36 (1888). The Court there denied a copyright to a court reporter in his printing of the opinions of the Ohio Supreme Court. The Court first noted that whatever work the judges perform in their official capacity cannot be regarded as authorship under the copyright law. As a question of "public policy," the Court stated that,
there has always been a judicial consensus, from the time of the decision in the case of
- ↑ See Precis of Argument by Counsel for Wheaton [pet'r], 33 U.S. (8 Pet.) at 615. Wheaton acknowledged, even while arguing that judicial opinions could be copyrighted, that "it would be absurd, for a legislature to claim the copyright; and no one else can do it, for they are the authors, and cause them to be published without copyright. . . . Statutes were never copyrighted." Id. Further, "it is the bounden duty of government to promulgate its statutes in print . . ." Id. at 616.
Counsel for Peters, the respondent, emphasized the governing policy that "all countries . . . subject to the sovereignty of the laws" hold the promulgation of the laws, from whatever source, "as essential as their existence." Id. at 618-19. Peters's brief continues:
Id. at 620.It is, therefore, the true policy, influenced by the essential spirit of the government, that laws of every description should be universally diffused. To fetter or restrain their dissemination, must be to counteract this policy; to limit, or even to regulate it, would, in fact, produce the same effect
. . . .
If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions.
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