Cite as 906 F.3d 1229 (11th Cir. 2018)
ters/Atlanta No. 1 L.P. v. T-C Assocs., Ltd., 269 Ga. 522, 501 S.E.2d 209 (1998) (citing OCGA comment as establishing the scope of a statutory definition); Quinn v. Cardiovascular Physicians, P.C., 254 Ga. 216, 326 S.E.2d 460 (1985) (citing OCGA comment as stating “the purpose” of a statutory provision); Chaney v. Burdett, 274 Ga. 805, 560 S.E.2d 21 (2002) (citing OCGA comment as stating the purpose behind a revision to a statutory provision); Grace Bros. v. Farley Indus., Inc., 264 Ga. 817, 450 S.E.2d 814 (1994) (citing OCGA comment as defining the nature of a statutory remedy); Magner v. One Sec. Corp., 258 Ga. App. 520, 574 S.E.2d 555 (2002) (citing OCGA comment as giving the definition of a statutory term); VSI Enterprises, Inc. v. Edwards, 238 Ga. App. 369, 518 S.E.2d 765 (1999) (citing OCGA comment as stating the “intent of the legislature” and what the “legislature expected” when enacting a statutory provision); Leventhal v. Post Properties, Inc., 276 Ga. App. 742, 624 S.E.2d 223 (2005) (citing OCGA comment as showing the meaning of statutory provision); Rosenfeld v. Rosenfeld, 286 Ga. App. 61, 648 S.E.2d 399 (2007) (citing OCGA comments as establishing the burden of proof that a party must carry under a statutory provision); Weir v. Kirby Const. Co., 213 Ga. App. 832, 446 S.E.2d 186 (1994) (citing OCGA comment as stating the purpose of a statutory provision).
The nature and authoritativeness of the work, like the identity of the author, are material in determining whether the work is attributable to the constructive authorship of the People. After all, the decision in Banks not only emphasized the identity of the creator of the work but also the nature of the work, reasoning that the work was uncopyrightable precisely because it was an “authentic exposition and interpretation of the law [] binding [on] every citizen.” Banks, 128 U.S. at 253, 9 S.Ct. 36.
Many other courts applying the rule in Banks, or a rule like it, have emphasized that the law, as an authoritative work that governs people’s lives, is uncopyrightable. See, e.g., Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (1886) (“The decisions and opinions of the justices are the authorized expositions and interpretations of the laws, which are binding upon all the citizens… justice requires that all should have free access to the opinions, and [] it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices.”); West Publishing, 27 F. at 57 (“But it is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws, or the official interpretation of those laws, should be co-extensive with the sweep of the maxim. Knowledge is the only just condition of obedience.”); State of Connecticut v. Gould, 34 F. 319, 319 (C.C.N.D.N.Y. 1888) (“[C]onsiderations of public policy which, it is said, demand, in a country where every person is presumed and required to know the law, that the fullest and earliest opportunity of access to the expositions of the judicial tribunals should be afforded to all.”).
By way of contrast, a judge might create a work in his capacity as an employee of the government that bears little relation to his role as an official expositor of the law. A speech delivered by a judge, depending on the circumstances of the address, may or may not count as a work created by a government employee. See Pub. Affairs Assocs., Inc. v. Rickover, 268 F.Supp. 444 (D.D.C 1967). But such a work assuredly does not count as a work made in the exercise of the sovereign power to make or interpret the law. A judicial speech is assigned no authoritative weight -- it binds no one and has no official effect on the law or on how it is understood. Only those
