Page:Georgia v. Public.Resource.Org SCOTUS slip opinion.pdf/23

2 Broadcasting Cos. v. Aereo, Inc., 573 U. S. 431, 463 (2014) (Scalia, J., dissenting), I respectfully dissent.

Like the majority, I begin with the three 19th-century precedents that the parties agree provide the foundation for the government edicts doctrine.

In Wheaton v. Peters, 8 Pet. 591 (1834), the Court first regarded it as self-evident that judicial opinions cannot be copyrighted either by the judges who signed them or by a reporter under whose auspices they are published. Congress provided that, in return for a salary of $1,000, the Reporter of Decisions for this Court would prepare reports consisting of judicial opinions and additional materials summarizing the cases. Id., at 614, 617 (argument). Wheaton, one of this Court’s earliest Reporters, argued that he owned a copyright for the entirety of his reports. He contended that he had “acquired the right to the opinions by judges’ gift” once they became a part of his volume. Id., at 614 (same). The Court ultimately remanded on the question whether Wheaton had complied with the Copyright Act’s procedural requirements. Id., at 667–668. In doing so, it observed in dicta that “the court [was] unanimously of [the] 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.” Id., at 668.

Fifty-four years later, the Court returned to the same subject, suggesting a doctrinal basis for the rule that judicial opinions and certain closely related materials cannot be copyrighted. In Banks v. Manchester, 128 U. S. 244 (1888), the state-authorized publisher of the Ohio Supreme Court’s decisions, Banks & Brothers, sued a competing publisher for copyright infringement. The competing publisher reproduced portions from Banks’ reports, including Ohio Supreme Court decisions, statements of the cases, and syllabi,