Getting tough with UW and Wisconsin’s Jury Instruction Committees

Knightly studies copyright law

I’ve long complained that eleven sitting Wisconsin judges write our criminal jury instructions (JIs) and then somehow take and transfer a copyright in those JIs to the University of Wisconsin (UW), which then turns around and sells them back to us after we’ve already paid the judges’ salaries!  Worse yet, we lawyers have to pay annual update fees or the instructions quickly go out of date.  As I wrote in a recent blog post, I don’t think this is legal:

The “government edicts doctrine” states that court decisions and even “non-binding, explanatory legal materials are not copyrightable when created by judges who possess the authority to make and interpret the law.” (Georgia v. Public Resource, P. 4.)

Now, the UW-JI Committee gravy train could be coming to an end.  A non-profit California group called Public Resource just wrote a letter to the JI Committee members and UW stating this:

I am writing to inform you that my organization, Public Resource, a 501(c)(3) non-profit corporation based in California, has recently purchased a set of the Wisconsin Jury Instructions, and we plan to make those materials publicly available. I want to give you an opportunity to respond and raise any facts or issues you believe are relevant. . . . .

It is a long-held common law doctrine that work produced by judges as part of their official duties is not eligible for copyright. This edicts of government doctrine goes back to the Golden Age of the Marshall Court in the case of Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), where it was held that “the Court is unanimously of opinion that 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.” The U.S. Supreme Court further elaborated on the edicts of government doctrine when it stated that no copyright may be obtained by a judge and that this principle “extends to whatever work they perform in their capacity as judges.” Banks v. Manchester, 128 U.S. 244, 253 (1888).

The Court has recently considered the edicts of government doctrine in the case Georgia et. al. v. Public.Resource.Org, Inc.,140 S.Ct. 1498 (2020), in which my organization prevailed after being sued by the State of Georgia for having purchased and posted the Official Court of Georgia Annotated [statutes]. . . .

After carefully studying the Wisconsin Jury Instructions and their history, it appears that they fall squarely within the boundaries of the edicts of government doctrine.

Public Resource plans to post not just the Wisconsin criminal jury instructions for free on the web, but also the civil and juvenile law instructions.  UW and the various JI Committees have been reaping huge profits for many, many decades by selling these public domain JIs under an invalid (or nonexistent) copyright.  Just think: one to three sets of jury instructions (all three together cost $510), plus the digital versions thereof which double the cost (but are necessary as explained in my last post), plus the annual update fees on each and every set of print and digital JIs—all times the number of lawyers and libraries that purchase them!

Thanks to the group called Public Resource, what appears to be an obvious and intentional racket perpetrated by UW and the three JI Committees will hopefully be coming to an end.  Then again, given the sorry state of legal education, it’s entirely possible that the committee-member judges, the UW, and even its law school had no idea that their copyright claim in the JIs might be completely invalid.

Stay tuned for further updates.