created the work needs an economic incentive to create or has a proprietary interest in creating the work and (2) whether the public needs notice of this particular work to have notice of the law.” See id. at 194.
As a testament to the unclear state of the law, both sides to the dispute before this Court devote numerous pages to discussion of Suffolk even though neither believes it should control. The Court agrees with ICC that the Suffolk test appears primarily directed to works by government authors, rather than to works by private authors like ICC. (See ICC Reply at 9–10.) However, the Suffolk test is not necessarily inconsistent with the more apposite case law detailed above, either. While the Court does not rely on Suffolk as setting forth the definitive test that controls here, the Court nevertheless considers the decision because it is binding precedent and its discussion remains relevant to this case more broadly.
The Court reads the Suffolk decision to contemplate a weighing of the two enumerated considerations listed above; where due process concerns are particularly high, as where a work is itself “the law,” an author’s economic incentives play a particularly low role in the analysis, if any. The Suffolk court thus noted that “if the existence and content
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