Page:Georgia v. Public.Resource.Org SCOTUS slip opinion.pdf/10

Rh Pursuant to “a judicial consensus” dating back to Wheaton, judges could not assert copyright in “whatever work they perform in their capacity as judges.” Banks, 128 U. SS. [sic], at 253 (emphasis in original). Rather, “[t]he 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.” Ibid. (citing Nash v. Lathrop, 142 Mass. 29, 6 N. E. 559 (1886)).

In a companion case decided later that Term, Callaghan v. Myers, 128 U. S. 617 (1888), the Court identified an important limiting principle. As in Wheaton and Banks, the Court rejected the claim that an official reporter held a copyright interest in the judges’ opinions. But, resolving an issue not addressed in Wheaton and Banks, the Court upheld the reporter’s copyright interest in several explanatory materials that the reporter had created himself: headnotes, syllabi, tables of contents, and the like. Callaghan, 128 U. S., at 645, 647. Although these works mirrored the judge-made materials rejected in Banks, they came from an author who had no authority to speak with the force of law. Because the reporter was not a judge, he was free to “obtain[ ] a copyright” for the materials that were “the result of his [own] intellectual labor.” 128 U. S., at 647.

These cases establish a straightforward rule: Because judges are vested with the authority to make and interpret the law, they cannot be the “author” of the works they prepare “in the discharge of their judicial duties.” Banks, 128 U. S., at 253. This rule applies both to binding works (such as opinions) and to non-binding works (such as headnotes and syllabi). Ibid. It does not apply, however, to works created by government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters. Compare ibid. with Callaghan, 128 U. S., at 647.

The animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show … that all should