The principle of the taxpayers entitlement to free access to the law is rooted in the earliest of legal debates. Beginning with Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668, 8 L. Ed. 1055 (1834) the justices held that:

“It may be proper to remark that the court are unanimously of opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.”

In Davidson v. Wheelock, 27 F. 61 (1866), the U. S. Circuit Court for the District of Minnesota rejected a claimed contractual grant of an exclusive right to publish the constitution and statutes of Minnesota. The court held that, although the reporter could obtain a valid copyright on his compilation and analysis, anyone could freely copy the laws themselves.

“- no exclusive right to print and publish and sell the laws of the state of Minnesota, or any number of legislative acts. The materials for such publication are open to the world. They are public records, subject to inspection by every one, under such rules and regulations as will secure their preservation. They may be digested or compiled by any one, and it is true such compilation may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the combination and analysis; but such compiler could obtain no copyright nor the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him.

In Howell v. Miller, 91 F. 129 (1898), the Sixth Circuit reached the same conclusion with regard to the statutes of Michigan.

“no one can obtain the exclusive right to publish the laws of a state in a book prepared by him. This general proposition cannot be doubted. And it may also be said that any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual. ”

In Banks & Bros. v. West Publishing Co., 27 F. 50 (1886) Justice Brewer concluded:

“It is in accordance with sound public policy, in a commonwealth where every person is presumed to know the law, to regard the authoritative expositions of the law of the regularly constituted judicial tribunals as public property, to be published freely by any one who may choose to publish them, and such publications may be of everything which is the work of the judges, including the syllabus and the statement of the case, as well as the opinion. The copyright of the volume does not interfere with such free publication. It protects only the work of the reporter; that is to say, the indexes, the tables of cases, and the statement of points made and the authorities cited by counsel. ”

In Banks v. Manchester, 128 U.S. 244, 32 L. Ed. 425, 9 S. Ct. 36 (1888) the Court concluded that:

“The question is one of public policy, and there 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 ... what a court, or a judge thereof, cannot confer on a reporter as the basis of a copyright in him, they cannot confer on any other person or on the State.”

In Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886), the Massachusetts Supreme Judicial Court interpreted a contract between the Commonwealth and Little Brown Publishing Company which was claimed to give Little Brown the exclusive right to publish opinions of the SJC. In ordering the reporter of decisions to permit a competing publisher to examine and copy the opinion, the court articulated the policies underlying the rule:

“Every citizen is presumed to know the law thus declared, and it needs no 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.”

earliest knowledge | free access

Common sense would suggest that these are basic fundamental rights of all those that must follow and are therefore presumed to know the law.

In Callaghan v. Myers, 128 U.S. 617, 32 L. Ed. 547, 9 S. Ct. 177 (1888) we find:

In Banks Law Publishing Co. v. Lawyers' Co-Operative Publishing Co., 169 F. 386 (2d Cir. 1909) (per curiam), appeal dismissed by stipulation, 223 U.S. 738, 32 S. Ct. 530, 56 L. Ed. 636 (1911), the court held that case arrangement and pagination cannot, as a matter of law, meet originality and intellectual-creation requirements.

“Any principle upon which such cases are based is not thought applicable where the arrangement of the cases, though involving some merit, so obviously was necessary to produce the volumes required by the statute. Such labor, under the circumstances presented, like the decisions and opinions of the court, became the property of the public.”

The trial court rejected the plaintiff's claim that its case arrangement and pagination merited copyright protection; the Second Circuit, in a per curiam opinion, reproduced the trial court's opinion in full, adopting the opinion as its own. Citing Banks v. Manchester, the court (Justice Hazel) held that:

“neither the court nor the reporter from motives of public policy, can have any exclusive rights in the written or oral opinions of the court ... the reporter's right to protection must be limited to his intellectual labor” ... “for another to simply adopt the plan of grouping of the cases, making marginal reference to the paging of the volumes issued under his direction, without in any way pirating the substance of his origination, is not enough ... to establish infringement.”

Judge Hazel concluded that for a reporter “to merely arrange the cases in sequence [and to page] the volumes [were not] features or characteristics of such importance as to entitle him to copyright protection of such details.” 169 Fed. at 390. (Emphasis added). That conclusion, when read with Judge Hazel's discussion of all three of the controlling Supreme Court cases, was obviously based on the reason that such an arrangement and the pagination of the volumes were not original works of authorship within the meaning of the Copyright Act.

As recently as 1980 in Building Officials & Code Adm. v. Code Technology, Inc (628 F.2d 730) Justice Campbell of the First Circuit suggests that regulations may fall under the same policies as statutes and judicial opinions:

“We are, therefore, far from persuaded that BOCA's virtual authorship of the Massachusetts building code entitles it to enforce a copyright monopoly over when, where, and how the Massachusetts building code is to be reproduced and made publicly available. While we do not rule finally on the question, we cannot say with any confidence that the same policies applicable to statutes and judicial opinions may not apply equally to regulations of this nature.”

In State of Georgia v. The Harrison Company - 548 F. Supp. 110 (1982), the court held that the State of Georgia could not copyright it’s statues in order to “insure accuracy” and that furthermore, the courts could accept citations to the individually published works:

“The citizens are the authors of the law, and therefore its owners, regardless of who actually [**9] drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.”

“The court is unpersuaded by the State of Georgia’s argument that it should be able to copyright its statutes so as to insure the accuracy of any publication of its statutes. If the defendants choose to print what the Georgia General Assembly has adopted as the 1981 code (instead of simply reprinting the language found in its prior codifications), [*115] the defendants may do this, and courts may accept citations to that publication. However, anyone citing the defendants' work will do so at his peril if there is any inaccuracy in that publication or any discrepancy between what Michie has published and what the defendants have published. A person takes the same risk, of course, whenever he cites the United States Code Annotated (published by West Publishing Company) or the United States Code Service (published by the Lawyers Co-operative Publishing Company and Bancroft-Whitney Company); since both of these codifications are unofficial, the language in the statutes-at-large (or the official codifications) published by the Government Printing Office would control.”

In the landmark 1986 case West v. Mead decision in the Eighth Circuit (No. 85-5399 799 F.2d 1219) the court ruled that West’s star pagination numbering system were not copyrightable:

“The fact that the sequential numbering of the pages of any volume, including a volume of law reports, is an important part of the volume, does not support a finding of fact that such a part of the whole of a particular volume of West's publications is subject to copyright. Nor, in my judgment, does such a fact support a finding of fact that West's arrangement of cases is subject to copyright. ... law book publishers in the United States have long and traditionally used star pagination in their publication of court opinions which have been taken verbatim from earlier published and copyrighted works of both official and unofficial court reporters.”

In State of Texas v. West (No. 88-1114- 1989.C05.1726, 882 F.2d 171), counsel for the State asked for a declaratory judgment against West and it’s claimed copyright of Vernons Statutes. Texas argued that West could not hold a copyright in the Vernon's arrangement because Vernon's was the only “accessible” version of Texas statutory law. More importantly, Texas argued that it had an obligation under the due process clause to provide its residents with access to its laws and that West's copyright impinged on this obligation.

Upon appeal before the United States Court of Appeals for the Fifth Circuit (No. A-87-CA-639) Judge Walter S. Smith, Jr., denied the application for declaratory judgment on the grounds that no ‘actual controversy’ existed and in so ruling failed to affirm or deny West’s claim of copyright in the arrangement of the Texas Statutes.

Recent case decisions in the courts of appeal, however, have upheld that public data cannot be protected solely by arrangement or by encapsulation of trivial or non-substantive corrections or changes.

In particular, Hyperlaw, Inc. v. West Publishing Company, 94 Civ. 589 (SDNY 1997) deals with the extent of copyright protection available to West Publishing Company with respect to opinions of the United States Supreme Court and the Circuit Courts of Appeal which it publishes in the West reporters. Hyperlaw, Inc. scanned certain West reports, using the text of the opinions in a CD ROM product containing Supreme Court cases. It was admitted that Hyperlaw might scan up to 75% of the West cases into its system.

In balancing the protection of the investment of West Publishing Company in compiling the data versus the unfairness of denying the public the right to copy what is basically a government document, the Court found that:

“West does not have a protectable interest in any of the portions of the opinions that Hyperlaw copied or intends to copy ... ”

In drawing this conclusion, the Court delves into traditional copyright concepts concerning derivative works. It found that the changes West made to any opinion did not make the reported decision independently copyrightable. The Court examined each individual change made by West to the opinion to determine whether it could be said to have created an original work of authorship.

The Court concluded that each of the changes that West makes to the cases it reports are trivial, and taken separately or collectively, they do not result in a distinguishable variation of the opinion written by the Court. Thus, Hyperlaw's massive scanning efforts from West Reports did not violate West copyrights.

This case was recently upheld on appeal before the United States Court of Appeals for the Second Circuit (Nov 3, 1998). In Matthew Bender & Company, Inc., & Hyperlaw, Inc., vs. West Publishing Co (No. 97-7430). Judges Cardamone and Jacobs held that:

“We hold that Bender and HyperLaw will not infringe West's copyright by inserting star pagination to West's case reporters in their CD-ROM disc version of judicial opinions. The judgment of the district court is affirmed.”

The law seems clear that judicial opinions and statutes are in the public domain and are NOT subject to copyright. Furthermore, the core data cannot be protected by encapsulation within proprietary numbering or ordering systems, or minor changes and corrections.