What Banks and other opinions undeniably teach about assessing the copyright protection of works like the codes here at issue is that "[t]he question is one of public policy...."[1] Accordingly, these decisions that do not stand for the abstract and of generic proposition all law qua law regardless its, form, authorship, or content, is automatically unprotected fair game as to all copiers, without distinction. Hence, courts are given the weighty task of balancing, on the one hand, the policy concerns that favor the constitutionally mandated retention of copyright protection for privately authored works and, on the other hand, the policy concerns that would permit stripping the author of a privately created work of copyright protection once that work is enacted into law. I do not dismiss lightly the policy considerations supporting this latter concern. Yet, when properly limited to the narrow set of facts before us, the scale of countervailing policy considerations is tipped—slightly yet undeniably—in favor of enforcing SBCCI's copyright, vis-a-vis Veeck and any others (but only they) who are identically situated.
- ↑ Banks, 128 U.S. at 253; see also CCC, 44 F.3d at 68: We reach this conclusion [reversing summary judgment in favor of a publisher who copied portions of appellant's used car valuations which were referenced by state statutes] based on the need to balance the conflicts and contradictions that pervade the law of copyright, and the need, where elements of copyright law conflict, to determine, as a policy judgment, which of its commands prevails over the other. (emphasis added).
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