Supreme Court of the United States

“ If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions. If there be any effect derived from the assertion, that the judges furnished their decisions to the reporter, the gift would be both irrevocable and uncontrollable, even by the judges themselves. The desires of the court to benefit the public, and the wishes and necessities of the public to receive the benefit, might alike be frustrated by a perverse or parsimonious spirit. ”

“ They justify the positive provisions, and manifest the wisdom of them which give existence to it among ourselves. It is not to be found in natural law or common law, and the deficiency is wisely and aptly supplied.
The inconveniences to the public that would be the consequence of mere common law assertion of the right would be endless. It would lead to perpetual strife. If the mere individual stamp of authorship would afford even a foundation for a claim, originality might be pretended to by numerous individuals, and a test of truth might not be obtained. ”

“ That a particular act of congress, or any number of acts of congress, could be made any man's exclusive property, has perhaps never been supposed. Yet the same labour is devoted to the construction of them-the same degree of talents is required for the due and proper composition of them. A particular individual receives them for publication, and the manuscripts may be said to belong to him ”

“ The possession is not more absolute and entire in the one case than the other. It is an artificial, and therefore arbitrary rule which draws the distinction; and in order to render it available, the lesson must be read in the statute, and the means must be resorted to which are there pointed out. Even in the face of statute backed by the constitution itself, let an inventor lose his possession, and his privilege is gone. The [p626] decision of this court as to the patent for fire hose, was to this effect. ”

“ If notice be required by statute, as, for example, preparatory to a suit against a magistrate for misconduct in office, not only is it never presumed, but nothing cas supply its proof; not even knowledge of the design to sue, which might be substantially the same thing. In such case, knowledge is not notice.
There is nothing against our construction in the principle which requires a strict interpretation of certain statutes. If the act be penal, we are not endeavouring to enforce the penalty. There is nothing penal as to the author claiming the copyright. ”

“ Nothing can be done, consistently with our free institutions, except to encourage and promote it. Every thing which the legislature or the court has done upon the subject is purely of that character and tendency.
The defendants contend, that to make "reports" the subject of exclusive ownership, would be directly to interfere with these fundamental principles and usages. They believe that no man can be the exclusive proprietor of the decisions of courts or the enactments of the legislature ”

“ Feudal principles apply to real estate. The notions of personal property of the common law, which is founded on natural law, depend materially on possession, and that of an adverse character, exclusive in its nature and pretensions. ”

“ All the penalties are against other persons. It is to be construed strictly when it is to be enforced against them. He claims the benefit of his copyright, which is a grant to be obtained only on conditions precedent and well defined. He attempts to enforce with rigour, if not the penal forfeitures, at least the penal prohibitions of the law against the defendant, whom he alleges to be a wrong doer. Against the defendant, thus, without (if it be without) bringing himself under the provisions of the law, the alleged proprietor denounces awful consequences. ”

“ When he has a duty to perform, it gives him wisdom and strength to perform it; but the duty itself it cannot create, enlarge, diminish or destroy.
This subject is well treated of by Mr Duponceau in his Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States. In his preface, page xi, he says, "the common law in the United States is no longer the source of power or jurisdiction, but the means or instrument through which it is exercised ”

“ It might become the interest of such a person to consign the whole edition to the flames, or to put it at inaccessible prices, or to suffer it to go out of print before the country or the profession is half supplied. These are evils incident to every publication which can be secured by copyright. Mere individual works, whether literary or religious, the authors can undoubtedly thus control. During the "limited time" for which they are constitutionally secured in an exclusive enjoyment of them, there is no remedy. ”

“ The patronage of American legislation then abridges the duration of the right, if it does not curtail its enjoyment, by imposing restraints and prescribing preliminary forms. It does more, it draws a distinction between the stranger and the citizen or resident ”

“ If the profession and the country are indebted to the individual exertions of the reporter for valuable notes, which may have been usefully inserted to increase his emoluments, or enlarge his literary reputation, they are not at all connected with the work as described and exclusively claimed in the proceedings before the court. ”

“ He certainly does not, by either combination or addition, appropriate to himself that which is neither the one nor the other; and his combination being untouched, and his additions discarded, a stranger may surely use as he pleases, that which at first was public property, and is public property still. ”

“ The states themselves at no time ever treated this as a common law right. Before the adoption of the federal constitution, accordingly, several of them are found to have made special provision by statute on the subject. New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland and North Carolina, [p628] each passed acts of assembly to secure to authors an exclusive enjoyment for a term of years. Why should they have secured a right already in full existence? They might have merely provided a penalty for an already perfect right. ”

“ If the book of reports of the complainants be susceptible of exclusive ownership, such ownership can be secured only by pursuing the provisions of certain acts of congress. The provisions of the acts of congress have not been observed and complied with, by the complainants or others in their behalf. 1. The character of the work in which the right to literary property is asserted by the complainants, is sufficiently described in their own bill. It consists, they say, of twelve [p619] books of reports of the decisions of the supreme court of the United States. ”

“ Can such a power be asserted, with all its consequences, over the decisions of the highest judicial tribunal of the land?
We are not to be told, that the interest of the proprietor would secure the country against so great an evil. ”

“ It would not be to promote, but to retard that progress, if it possessed already a more active stimulus. There would be no occasion to secure for a limited time, if the exclusive right already existed in perpetuity. ”

“ If delivered to be preserved, the presumption is, that the particular copy so left would be found. It will scarcely be contended that the second edition of the first volume can cure the defects of the first. It can have no copyright existence by itself. ”

“ It seems to me," says he, "that the act will admit of no other construction."
The case of Beckford v. Hood, 7 T.R. 620, has been relied on to show that the directions of the English statute are not necessary preliminaries to the establishment of the right. The judges of the king's bench were construing a very different statute from ours. The second section of the act of 8 Anne, c. 19, 12 Statutes at Large 82, recites, that "whereas many persons may, through ignorance, offend against this act, unless some provision be made whereby the property in every such book, &c. ”