policies strongly predict that, were Congress to address the issue here presented, it would preserve the protection of SBCCI's copyright, at least under circumstances like those we consider today.[1]
As for the Supreme Court, its most analogous opinion, Banks v. Manchester, falls markedly short of answering the question.[2] The Court grounded its century-and-one-quarter old Banks holding—that judicial opinions cannot be copyrighted[3]—in the logic that, as the product of judges who are paid from public coffers and elected or appointed for the sole purpose of interpreting and applying the law, judicial opinions can never be copyrighted.33 Thus Banks turns not on the nature of the work but on the nature of the author. By its own terms, the Banks holding is obviously limited to the work of taxpayer-paid public officials who produce or interpret the law. The majority's stretching of Banks to the facts of the instant case constitutes a clear overreaching that finds no definitive support from any controlling authority.
- ↑ See, e.g., National Technology and Transfer Act of 1995, P.L. 104-113,? 12(d), 110 Stat. 783 (1996); OMB Circular A-119, 63 Fed. Reg. 8545, 8555 (Feb. 19, 1998).
- ↑ Banks v. Manchester, 128 U.S. 244, 253 (1888) (holding judicial opinions uncopyrightable because they are created by judges paid from the public's coffers); see also Wheaton v. Peters, 33 U.S. 591, 668 (1834) (same).
- ↑ This rationale is also applicable to statutes created by legislators paid by public funds.
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