Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 11 of 47
precludes enforcement of copyright in works which have become government edicts and political facts as laws by incorporation; and (4) enforcement of the copyrights through the prior restraint that Plaintiffs seek case would violate the First, Fifth, and Fourteenth Amendments of the United States Constitution. See ECF No. 202 (citing ECF Nos. 120–126, 146–147, 149, 151, 160–161, 163–168).
In response to Plaintiffs’ trademark claim, Defendant argues that Plaintiffs have not offered evidence of consumer confusion and that its use of Plaintiffs’ marks constitutes nominative fair use because the standards are not readily identifiable without Plaintiffs’ marks, Defendant has included only what is necessary to identify the standards, and has not suggested that Plaintiffs sponsor or endorse Defendant’s postings. Def.’s 2d MSJ at 30–37.
- C. Supplemental Briefing: Georgia v. Public.Resource.Org, Inc.
After the parties submitted their summary judgment briefing, the Supreme Court decided Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020). At the court’s request, the parties submitted supplemental briefing on the impact of that decision on this case.
In Georgia, the Court considered whether annotations in the Official Code of Georgia Annotated, which is the authoritative version of Georgia’s statutes under Georgia law, were in the public domain along with the statutes themselves. Georgia, 140 S. Ct. at 1504–05. LexisNexis drafted the annotations pursuant to a work-for-hire agreement with a Georgia state commission, such that Georgia was considered the “author” of those annotations for copyright purposes. See id. at 1505. When PRO—the same defendant as in this case—copied the annotated code, Georgia sued, arguing that the annotations were not in the public domain because, unlike the statutes, they did not carry the “force of law.” See id. The district court
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