Public Domain Laws in the United States
Free Availability of State Law
It has been established in American law for nearly two centuries that public law is not subject to any party’s exclusive control, and must remain public as a matter of due process.
- In Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834): “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”;
- In Banks v. Manchester, 128 U.S. 244, 253 (1888): “The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute”.
Originally established with regard to judicial decisions, this principle applies with equal force to all other aspects of public law, including regulations promulgated by state agencies. In 1866, the federal Circuit
Court for Minnesota, in Davidson v. Wheelock, 27 F. 61 (1866), decreed that state statutes were not subject to any proprietary interest:
“[The complainants] obtained no exclusive right to print and publish and sell the laws of the state of Minnesota, or any number of legislative acts. . . . such compiler could obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon him.”
The Supreme Judicial Court of Massachusetts similarly concluded, in Nash v. Lathrop, 142 Mass. 29, 35 (1886), that
judicial decisions and legislative enactments are of the same essence, for purposes of requiring public access:
“The decisions and opinions of the justices are the authorized expositions and interpretations of the laws, which are binding upon all the citizens. They declare the unwritten law, and construe and declare the meaning of the statutes. Every citizen is presumed to know the law thus declared, and it needs no argument to 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. Such opinions stand, upon principle, on substantially the same footing as the statutes enacted by the legislature.”
Free access to state law necessarily includes freedom to publish or republish, even by copying from the sole “authorized” publisher. In Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) “any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual”. That the “book” used as a source of public law may be electronic rather than “printed” cannot change the underlying principles.
The Fifth Circuit has made it clear, in Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791, 800 (5th Cir. 2002), that same principle of free access must apply even to regulatory codes that are written and promulgated
by private organizations, and merely adopted by the pertinent governmental authority:
“[W]e hold that when Veeck copied only “the law” of Anna and Savoy, Texas, which he obtained from SBCCI’s publication, and when he reprinted only “the law” of those municipalities, he did not infringe SBCCI’s copyrights in its model building codes. The basic proposition was stated by Justice Harlan, writing for the Sixth Circuit:
“any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book … (Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898))”.
The Supreme Court of Georgia is in accord. In Harrison Co. v. Code Revision Commission, 244 Ga. 325 (1979), the Court considered the effect of a contract between Georgia’s Code Revision Commission and The Michie Company, pursuant to which Michie was granted “the exclusive right to distribute and sell sets and volumes of the Code for a 10 year period extending from the date of the initial publication of the Code, as well as the exclusive right to publish annual supplements and periodic replacement volumes to the Code for the same 10 year period.” (244 Ga. at 329).
The Court concluded:
“The exclusive right referred to is the exclusive right to publish the “Official Code of Georgia Annotated,” the copyright for which will be in the name of the state. Both Michie and the state, however correctly concede that this provision does not prevent Harrison from publishing a competitive product; i.e., a Code with annotations by Harrison. As was said in Davidson v. Wheelock, 27 F. 61 (D.Minn. 1866), a state’s laws are public records open to inspection, digesting and compiling by anyone. Michie is not being given an exclusive franchise as to the
publication of laws in Georgia.”
While law should not be subject to copyright, some vendors (such as Casemaker), however, asserted the right to claim copyright in any copyrightable materials, electronic files, data, source code and/or anything in addition to the statutory text and numbering in the content of the site(s).
Leave a Reply