Banks & Bros. v. West Publishing Co.

Brewer, J. The complainants insist that the state owns,—is the “proprietor,” within the meahing of the term as found in section 4952, Eev. St., of the opinions of its judges; that as proprietor it may take out a copyright in those opinions; that chapter 60, Laws 1880, provides for such copyright; and that the contract transfers the benefit thereof to complainants. They further insist that if not within the scope of the act of congress, the state has a common-law property right in the opinions of its judges; that it can determine how they shall be published; and that having contracted with complainants for exclusive publication, the courts should protect them in the enjoyment of this property right. The defendant insists that there is no such thing as a copyright or other property right in the opinions of the judges; deny that the state ever contemplated claiming or contracting for any exclusive right of publication of the opinions; and claim, further, that if complainants ever had any rights, their laches have been such as to prevent the interference of a court of equity. Obviously, these cross-contentions present three important ques-' tions: Firit. The nature and extent of the rights of a state in the opinions of its judges. Second. What has the state by its legislation asserted, and what by its contract did it transfer to the complainants? Third. To what extent are complainants, by-their conduct, estopped from the remedy sought? 1. Has the state, either by virtue of the common law or the copyright acts of congress, any property right in the opinions of the judges of [57] the supreme court ? If this question was submitted to me as a new question independent of prior adjudications, I should unhesitatingly answer it in the negative. If such right exists, it carries with it the right of withholding publication. But it is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws, or the official interpretation of those laws, should be co-extensive with the sweep of the maxim. Knowledge is the only just condition of obedience. The laws of Borne were written on tablets and posted, that all might read, and all were bound to obedience. The act of that emperor who caused his enactments to be written in small letters, on small tablets, and then posted the latter at such height that none could read the letters, and at the same time insisted upon the rule of obedience, outraging as it did the relations of governor and governed under his own system of government, has never been deemed consistent with or possible under ours. This claim seems to rest upon the idea that the state, as an entity independent of its citizens, or as a whole combined of all its individuals, has a property right in the laws and judicial opinions outside of and beyond that vested separately in each citizen. I conceive this to be an error. Each 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. Could a majority of a legislative assembly debar the minority from participation in the deliberations or a knowledge of the action of the assembly? The majority may bind the minority to the action it determines, but cannot withhold knowledge thereof. So, the majority of the citizens of a state—in a larger sense, the law-makers—may determine the conduct of all; but can knowledge of what is determined be withheld. This, of course, is more emphatically true, as to the statutes, but also true as to judicial opinions, which, though not laws, are official interpretations of law. The mere judgment for or against the plaintiff of course decides the case; but that often furnishes little insight into the questions considered and determined. The opinions, at least those of the highest tribunal, are always considered as official interpretations of law, both statute and common, and as such binding upon all citizens. The same argument which supports the state’s claim of property in judicial opinions supports that of property in statutes. The state pays the judges, and therefore owns the product of their official toil. The same is true as to legislators. But though such would be my views in the absence of prior adjudications, I find that the English courts generally sustain the crown’s proprietary rights in judicial opinions. The first case in the order of time was that of Atkins v. Stationers’ Co., decided in the eighteenth year of Charles II., being the year 1666. Atkins, having a patent from the crown, claimed the exclusive right to print law books. The defendants had printed Bolles’ Abridg [58] ment. A bill was brought by the plaintiff asking an injunction, jyhich the lord chancellor granted. The case was appealed to the house of lords. It was there argued that law reports were the king’s property because he pays the judges who pronounce the law. The house of lords took this view of the case, and affirmed the decree below. The case will be found reported in Carter’s Report, page 89. On page 91 of the opinion it is said: “The salaries of the judges are paid by the king, and the reporters in all courts at Westminster were paid by the king formerly.” The next case was that of Roper v. Streater, decided in the year. 1672, cited at length in 6 Bac. Abr. 507, and in 10 Mod. 106, and in 2 Show. 260. Roper purchased of the executors of Croke a third part of his reports. Defendant, Streator, had á patent or copyright from the king, and printed these reports. Roper brought action against the defendant for wrongfully printing the reports. Defendant, Streator, pleaded the king’s grant as an owner of the copyright, the question being whether the king or Croke was the owner of the reports. The case was decided in the court of king’s bench in favor of the plaintiff, and appeal was taken to the house of lords, and the judgment of the king’s bench was reversed, upon the ground that the ldng was the owner of the copyright, and that the executors of the author of the reports could convey nothing. See 4 Burr. 2316; 6 Bac. Abr. 507. In the case of Company of Stationers v. Parker, reported in Skinner’s Reports, 233, Holt, who argued the case for defendant, said, on page 236, that he agreed that the king had power to grant the printing of books concerning religion and law. In the case of Basket v. University of Cambridge, reported in 1 W. Bl. 105, and decided in the year 1758, the court of king’s bench held that the right to print the acts of parliament belonged to the king. Hale, C. J., in deciding the case, said: “So the year-books, taken at the expense of the crown, gave the king the property by purchase.” The chief justice in this case gives the history of the king’s right to print and publish certain books at great length, and says : “The king claimed copyrights of acts of parliament before the grant of Henry VIII., and the copyright of the king was still asserted as well to books of religion as acts of parliament; ” and in conclusion, on this subject, the lord chief justice says: “The crown, therefore, has no prerogative at common law over the art of printing, but is' merely entitled to especial copyrights.” In the case of Eyre v. Carnan, decided in 1781, and reported in 5 Bac. Abr. 509, the lord chief baron says.: “In the case of Basket v. University of Cambridge it was held that the right of printing acts of parliament rests in the king.” In the case of Millar v. Taylor, 4 Burr. 2305, the copyright of the king to all reports and acts of parliament was fully affirmed by Lord Mansfield in a very elaborate and able opinion. Shortt, in the Law of Copyright, on page 36, states that the ex59 elusive right was vested in the king to print the reports of judicial proceedings, statutes, orders of the privy council, translation of the Bible, etc. He further says that the claim of the crown to this copyright has by some been based upon the right of property, by others on naked prerogative; by others on the ground that the expense of the publication is borne by the crown; as to the Bible, that the sovereign is the head of the church. Some of the decisions place the right upon the crown, that the crown is bound to see that correct copies of the Bible, laws, and judicial opinions are furnished the people. Others that the crown pays the judges who pronounce the opinions. Blackstone rests the right on grounds of political and public convenience. The king, he says, as executive magistrate, possesses the right of promulgating to the people the acts of state and government. See 2 Bl. Comm. 410. In view of this consensus of opinion on the other side of the waters, of the fact that the common law is in force in this country so far as compatible with our system of government and the condition and wants of society, and that a mere change in the locus of the governing power from the crown to the people ought not to work material change in the extent of that power, it may be that due regard for settled law forbids a decision in accord with the views I have expressed. It is worthy of remark, however, that on this side of the waters the proprietary right of the state in statutes or judicial opinions has never been affirmed, unless in a late case in the supreme court of errors of Connecticut. In it the court says : “The judges and the reporter are paid by the state, and the product of their mental labor is the property of the state, and the state, as it might lawfully do, has taken to itself the copyright. ” On the other hand, in the ease of Davidson v. Wheelock, post, 61, decided in this district in 1866 by Judge Nelson, the court refused an injunction to restrain the publication of the constitution and the laws of Minnesota as revised and re-enacted by the legislature. In the course of his opinion the learned judge uses this language: “It is true that such compilation may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the combination and analysis; but such compiler could obtain no copyright for the publication of the laws only; neither could the legislature confer any such exclusive privilege upon- him.” When we bear in mind the fact that for years law magazines have been constantly printing in advance of official reports opinions of the various courts, the silence of judicial decision is significant of a doubt, at least, whether the doctrine as recognized in England obtains under our system of government. But I forbear further comment upon this question, and pass to the second. The contract must be interpreted by the legislation of the state. Nothing passed to complainants save as authorized by statute; and to determine the scope of the act under which this contract was made [60] we must construe it in connection with other legislation in pari materia. The Laws of 1873 prescribed the duties of the clerk of the supreme court, and also provided for the publication of the reports. They directed the clerk to record all opinions as soon as filed, (section 149, c. 2, tit. 3, Code Iowa 1873;) required him to permit any one to take a copy; and to himself make and certify a copy when requested, (section 147, Id.) No larger liberty of access could well be given,—no clearer expression of the intent of the legislature to make •the opinions free to all. At the same time those laws provided for the publication of the reports and vested the copyright thereof in the state. Section 158, c. 4, Id. The publication was given to the reporter, and the contents of each volume were prescribed. In addition to the opinions, he was to prepare and include syllabi, abstracts of the facts and law questions in each case, table of cases, and index. Sections 155, 156, e. 4, Id. It was this completed volume which was to be copyrighted, a part of its contents being the official interpretations of law by the judges, and the balance mere matters of convenience to the public prepared by the reporter. Construing these different portions of the same statute together, could it be seriously contended that the copyright of the reports nullified or limited the general and unrestricted access to the opinions? Is not the-only fair construction that the opinions were to be free to all, and the security of the copyright only cast upon the completed volume ?' Such would be the construction, under any circumstances; and especially when, as in this case, the matter declared free is the official interpretation of laws,—matter the most general knowledge of which is of vital importance. Now, the act of 1880 makes no change in the duties of the clerk,, repeals no section giving freedom of access to the opinions, and only changes the manner of publishing the Reports. Instead of leaving it with the reporter, it is done by contract. If the opinions were free before, they still are. There is nothing in the act which either directly or by implication asserts on the part of the state a broader or more extensive copyright, or purports to give to the contractor any other-rights than were claimed for the state by the Statutes of 1873. How, then, can complainants claim the exclusive right to the publication of the opinions separately ? I think the state has made them the common property of all. I indorse fully the language of the learned district judge of the Southern district of Ohio in the case of Banks v. Manchester, reported in 23 Fed. Rep. 143, and think it pertinent-to the case at bar: [61] It protects only the work of the reporter; that is to say, the indexes, the tallies of cases, and the statement of points made and the authorities cited by counsel. Wheaton v. Peters, 8 Pet. 653; Little v. Gould, 2 Blatchf. 165, 362; Chase v. Sanborn, 4 Clif. 306; Myers v. Callaghan, 5 Fed. Rep. 726; S. C. 10 Biss. 139; Myers v. Callaghan, 20 Fed. Rep. 411.” [60] “It is in accordance with sound public policy, in a commonwealth where every person is presumed to know the law, to regard the authoritative expositions of the law by the regularly constituted judicial tribunals as public property, to be published freely by any one who may choose to publish them, and such publications may be of everything which is the work of the judges, including the syllabus and the statement of the ease, as well as the opinion. The copyright of the-volume does not interfere with such free publication. [61] The conclusion to which I have come upon this second, question avoids the necessity of considering the third question. The application for an injunction will be denied.