Page:Georgia v. Public.Resource.Org SCOTUS slip opinion.pdf/25

4 Court addressed the limits of the government edicts doctrine. In that case, the Court settled another dispute between a publisher of court decisions and an alleged infringer. The plaintiff purchased the proprietary rights to the reports prepared by the Illinois Supreme Court’s reporter of decisions, Freeman, including the copyright to the reports. Unlike in Banks, these reports also contained material authored by Freeman. Callaghan, 128 U. S., at 645. The alleged infringers copied the judicial decisions and Freeman’s materials. In finding for the plaintiff, this Court reiterated that “there can be no copyright in the opinions of the judges, or in the work done by them in their official capacity as judges.” Id., at 647 (citing Banks, 128 U. S. 244). But the Court concluded that “no [similar] ground of public policy” justified denying a state official a copyright “cover[ing] the matter which is the result of his intellectual labor.” Callaghan, 128 U. S., at 647.

These precedents establish that judicial opinions cannot be copyrighted. But they do not exclude from copyright protection notes that are prepared by an official court reporter and published together with the reported opinions. There is no apparent reason why the same logic would not apply to statutes and regulations. Thus, it must follow from our precedents that statutes and regulations cannot be copyrighted, but accompanying notes lacking legal force can be. See Howell v. Miller, 91 F. 129 (CA6 1898) (Harlan, J.) (explaining that, under Banks and Callaghan, annotations to Michigan statutes could be copyrighted).

It is fair to say that the Court’s 19th-century decisions do not provide any extended explanation of the basis for the government edicts doctrine. The majority is nonetheless