Page:Georgia v. Public.Resource.Org SCOTUS slip opinion.pdf/27

6 and apply rules of law that, in turn, represent the implementation of the will of the people. Unlike other copyrightable works of authorship, judicial opinions have binding legal effect, and they are produced and issued at public expense. Moreover, copyright law understands an author to be one whose work will be encouraged by the grant of an exclusive right. See Kirtsaeng v. John Wiley & Sons, Inc., 579 U. S. ___, ___ (2016) (slip op., at 6). But judges, when acting in an official capacity, do not fit that description. The Court in Banks may have had these differences in mind when it concluded that a judge fell outside the scope of the term “author.” 128 U. S., at 253.

History may also suggest a narrower meaning of “author” in the copyright context. In England, at least as far back as 1666, courts and commentators agreed “that the property of all law books is in the king, because he pays the judges who pronounce the law.” G. Curtis, Law of Copyright 130 (1847); see also Banks & Bros. v. West Publishing Co., 27 F. 50, 57 (CC Minn. 1886) (citing English cases and treatises and concluding that “English courts generally sustain the crown’s proprietary rights in judicial opinions”). Blackstone described this as a “prerogative copyrigh[t],” explaining that “[t]he king, as the executive magistrate, has the right of promulging to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council.” 2 W. Blackstone, Commentaries on the Laws of England 410 (1766) (emphasis deleted); see also Wheaton, 8 Pet., at 659–660. This history helps to explain the dearth of cases permitting individuals to obtain copyrights in judicial opinions. But under the Constitution, sovereignty lies with the people, not a king. See The Federalist No. 22, p. 152 (C. Rossiter ed. 1961); id., No. 39, at 241. The English historical practice, when superimposed on the Constitution’s recognition that sovereignty resides in the people, helps to explain the