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.” Id. at 35, 6 N.E. 559.
The next, and to date last time the Supreme Court considered the rule that government edicts cannot be copyrighted came less than a month after the Court had decided Banks, in Callaghan v. Myers, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547 (1888). There, a publisher of a set of reports containing the opinions of the Supreme Court of Illinois, known as the Illinois Reports, brought suit for copyright infringement against a rival publisher that had copied and published the reports. Id. at 619–22, 9 S.Ct. 177. The original publisher had obtained a proprietary interest in the reports from a salaried official of the State of Illinois whose duties, defined by statute, consisted of compiling the Illinois Reports; organizing the cases; writing annotations such as headnotes and syllabi to appear alongside the opinions in the reports; and providing a certain number of copies of the final product to the Secretary of State of Illinois. Id. at 645–46, 9 S.Ct. 177. Having fulfilled his statutory duties, the reporter sold whatever proprietary interest he had in the Illinois Reports to the publishing firm. When the firm sued for copyright infringement, the alleged infringer attempted to defend, claiming that the reports were public property because they had been created by a state-employed reporter who could himself have no proprietary interest in the work since he created the reports as part of his public duties and therefore was not their “author.” Id. at 645–47, 9 S.Ct. 177.
The Court began its analysis by reinforcing the basic rule announced in Banks 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, 9 S.Ct. 177. Nevertheless it rejected the claim that the copyright in the Illinois Reports was invalid. It explained that the underlying rationale of Banks did not apply, observing that “there is no ground of public policy on which a reporter who prepares a volume of law reports, of the character of those in this case, can… be debarred from obtaining a copyright for the volume which will cover the matter which is the result of his intellectual labor.” Id. The Court further suggested that, since the court reporter was a “sworn public officer, appointed by the authority of the government… [and] paid a fixed salary for his labors,” the state government might have taken any proprietary interest in his work for itself, but the fact that it had not done so suggested that there was “a tacit assent by the government to his exercising such privilege” on his own. Id. The Court thus reasoned that federal copyright law as explicated in Banks did not prevent the reporter from holding a valid copyright in the work and that the state had not reserved the copyright to itself. As a result, the copyright the reporter obtained and conveyed to the publishing firm was valid. The compilation of judicial decisions and other explanatory material like headnotes, tables, and indices, was different from Banks in two ways: first, the reporter, who had been appointed by the Illinois Supreme Court, and not the judges, had written the material accompanying the opinion; and, second, the reporter, and not the State of Illinois, claimed to hold the copyright.
The Supreme Court has not examined the doctrine since it decided Callaghan in 1888. However, since Banks and Callaghan the lower courts have further explored the nature and application of the rule. Thus, for example, the Sixth Circuit, in an opinion authored by Justice Harlan, applied the rule to state statutes. Howell v. Miller,
