divides Banks into two holdings and concludes that either holding must be squared with the policies and purposes of copyright law. This not insubstantial mode of analysis must be carefully reviewed.
The first holding of Banks is said to deny copyright to judicial opinions because judges, whose salaries are paid by the government, cannot claim to be "authors" of their official works. SBCCI contends that this discussion shows only that judges have no need of the Copyright Act's economic incentives in order to author judicial opinions. Banks, it is implied, articulates a utilitarian rationale for denying copyright protection to judicial opinions. SBCCI contrasts government employees with the private "authors" of model codes who allegedly depend on copyright incentives in order to perform their public service. SBCCI concludes that this "prong" of Banks does not apply to private code-writing organizations whose work has been adopted or incorporated into statutes, ordinances, or government regulations. Two courts, in addition to the panel that originally heard this case, have identified the consideration of authorship incentives as a "holding" of Banks. See Practice Management Info. Corp. v. American Medical Ass'n, 121 F.3d 516, 518 (9th Cir. 1997), opinion amended by 133 F.3d 1140 (9th Cir. 1998);[1] County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179, 194 (2d Cir. 2001).
- ↑ Practice Management declares, "The copyright system's goal of promoting the arts and sciences by granting temporary monopolies to copyright holders was not at stake in Banks because judges' salaries provided adequate incentive to write opinions." Id.
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