The "law" is not copyrighted

    There is an argument floating around the freedom movement that the "law" is copyrighted, which is utterly crazy. The "law" is owned by the public and cannot be copyrighted. Back in 1834, two reporters for the U.S. Supreme Court got involved in a legal battle regarding the cases of the Supreme Court. In Wheaton v. Peters, 8 Pet. 591, 668, 33 U.S. 591 (1834), the Supreme Court declared that "no reporter ... can have any copyright in the written opinions delivered by this court". Decisions of the courts belong to the public and nobody can copyright those decisions. See State of Georgia v. The Harrison Company, 548 F.Supp. 110 (N.D.Ga. 1982). 

     West Publishing Company, one of the largest publishers of legal materials, knows that it cannot copyright cases. It places in its electronic versions of the cases the following caveat:

     But what about statutes? This is addressed in 17 U.S.C. §105: "Subject matter of copyright: United States Government works:" Those arguing that the "law is copyrighted" are utterly wrong. But this argument is an important part of the argument for those who promote the grand theory that "we are still subjects of the British crown" under the apparent contention that the "King" (or Queen Elizabeth) still today "owns" the law.

    As shown above, public documents belong to the public and cannot be copyrighted. When any court decides any case, anyone may go obtain a copy of that decision. I can get any decision, you can and West Publishing can. I may, you may and West does publish those cases. I could start  my own company publishing these cases and making them available to whoever would buy them. However, I doubt that I would stay in business long against West. It has hundreds of people employed by it who get these cases, read them, and make little "headnotes" about various legal points in the cases. It publishes these cases in nicely bound books. It takes the "headnotes" it generates for these cases and puts them into a legal encyclopedias which group all "headnotes" of all cases in specific categories. Using West, studying and finding "law" has been made a lot easier.

    West also has a competitor, Lawyers Co-op. The federal government publishes acts of Congress in a set of books called the Statutes at Large ("Stat."). In large university libraries, you can find the Statutes at Large. However, the feds also publish the United States Code, which is simply stated the Statutes at Large organized in a more methodical fashion via titles. You can find the "true blue" (but it is really red in color) U.S. Code in many libraries. However, since the Code is a public document, anybody can copy it. Here, West and Lawyers Co-op are fierce competitors, with one publishing USCA and the other USCS. Both contain accurate reprints of the various uncopyrightable sections and titles of the official U.S. Code. However, West employs hundreds of people who read and categorize cases. West puts summaries of many cases at the end of sections of the U.S. Code, so when you engage in legal research, cases regarding a specific statute are there at your fingertips. Lawyers Co-op does the same thing. All of this other writing in these versions of the Code was created by these companies and this is the material which is copyrighted in these books.

    I never use the official U.S. Code and neither does anyone else. It just sits up there on the top shelf in our local law library gathering dust. The reason nobody uses the official version is because of the absence of the handy research materials like case summaries and other references. If I have a conspiracy case, I pull USCS, turn to Title 18, U.S.C., §371, and start reading the very refined annotations at the end of the section which quickly point you to the relevant cases. It wasn't always this way, however. Years ago, the States officially published their own legal materials, cases and codes and West was the competitor. As time passed, West acquired dominant market share because its books were superior. Legislatures would appropriate funds for official case books, which were often large, expensive books with large print. West published smaller books with smaller print and its publications were obviously cheaper. Why would anyone buy from the State its publication of the cases when (for probably the same price) you could buy from West its regional reporter containing cases not only from your own State but also several others? In short, free enterprise beat the socks off the government. Today, many States just let West do all the publishing of cases. Of course, anyone could compete against West.

    But West is not fearful of copyright infringement from the public at large. I violate the copyright laws every time I go to the law library and so does everyone else. The law schools are perhaps the biggest violators and law students copy away at copyrighted materials. West does not care, in fact it wants everyone using its products. It fears, however, another competitor like Lexis. Lexis back in the early 80s started putting cases on computer, but it used West's page numbers from its case volumes. West sued and won for infringement, the court holding that the only thing West could copyright were its own page numbers from its books as well as the headnotes it wrote for the cases. As a result, West and Lexis formed a partnership and now cases are on CD. Formerly to buy all of West's Supreme Court Reporter, it would have cost you several thousands of bux. Now, two discs with all Supreme Court cases can be bought for a couple hundred bux. Private enterprise has thus run circles around government.

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