work of which the People are the constructive authors is intrinsically public domain material and is freely accessible to all so that no valid copyright can ever be held in it.
The concept of popular sovereignty is deeply rooted in our politics, our law, and our history. The seminal statement of America’s political creed boldly proclaims that “[g]overnments … deriv[e] their just powers from the consent of the governed.” The Declaration of Independence para. 2 (U.S. 1776). During the ratification debates that followed the Revolution, James Madison similarly began with the foundational idea that the People were sovereign, and that under the proposed form of government “the public voice” was “pronounced by the representatives of the people.” The Federalist No. 10 at 77 (James Madison) (Clinton Rossiter ed., 1961). Still again, in the midst of the Civil War, President Lincoln etched an indelible description of this form of government in the national memory, describing ours as a “government of the people, by the people, for the people.” Abraham Lincoln, Gettysburg Address (November 19, 1863).
In fact, the United States Reports are filled with invocations of the sovereignty of the People. As Chief Justice Marshall expressed the fundamental idea many years ago: “[t]he government proceeds directly from the people; is ‘ordained and established,’ in the name of the people… [and] is emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403–05, 4 L.Ed. 579 (1819); see also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793); Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849). See also Tocqueville, Democracy in America 53 (Mansfield ed, 2002). (“In America, the principle of the sovereignty of the people… is recognized by mores, proclaimed by laws; [] spreads with freedom and reaches its final consequences without obstacle… when one wants to speak of the political laws of the United States, it is always with the dogma of the sovereignty of the people that one must begin.”).
While Banks is not explicit in grounding its holding in this conception of sovereignty, other federal courts have ruled that government works are intrinsically public domain material precisely because the People are sovereign and are therefore the authors and owners of the law. Thus, for example, in Banks & Bros. v. W. Pub. Co., 27 F. 50 (C.C.D. Minn. 1886), the court justified the rule on the grounds that “[e]ach citizen is a ruler,— a law-maker,— and as such has the right of access to the laws he joins in making and to any official interpretation thereof. If the right of property enters into the question, he is a part owner, and as such cannot be deprived of equal access by his co-owners.” Id. at 57.
In the same vein, and more recently, several courts have applied the rule announced in Banks and understood the rule to rest on foundational principles about the nature of law in a democratic society. Thus, in Veeck, the Fifth Circuit, sitting en banc, confronted the question of whether a model building code, once adopted by two municipalities, lost its copyright protection. Veeck, 293 F.3d at 796. In concluding that the work was uncopyrightable, the court asserted as a basic principle that the law is in “the public domain and thus not amenable to copyright,” and that cases like Wheaton and Banks evince a “broad understanding of what constitutes ‘the law’ ” so as to make judicial opinions in addition to statutes ineligible for copyright protection. Id. at 795–96. On this basis, the court held that, “[a]s governing law,” the municipal building codes also could not be copyrighted. Id. at 796.
