Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 19 of 47
burden to prove the contrary”); United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011) (infringer “has the burden of rebutting the facts set forth in the copyright certificate”). Defendant makes three arguments challenging validity, none of which are persuasive.
First, Defendant questions whether the standards at issue were ever validly copyrighted given the Act’s prohibition on copyrighting “work[s] of the United States Government.” 17 U.S.C. § 105(a). According to Defendant, “[m]any federal government employees were among the volunteers [who collaborated with non-government employees and Plaintiffs to write the standards], so the employees (or the federal government itself) are among the joint authors.” See Def.’s 2d MSJ at 44 (emphasis in original).
Defendant made this argument for the first time on appeal, and the Circuit rejected it as untimely and because Defendant “submitted no evidence that specific language in any of the works was ‘prepared by an officer or employee of the United States Government as part of that person’s official duties.’” ASTM, 896 F.3d at 446. While Defendant has now raised the argument with this court, see Def.’s 2d MSJ at 45 n.20, it has proffered no evidence that an officer or employee of the government prepared specific language in any of Plaintiffs’ standards as part of their official duties. See id. at 44. Without such evidence, Defendant’s argument is “meritless.” ASTM, 896 F.3d at 446.
For the same reason, Defendant’s second and related argument—that the standards are “government edicts”—fails. The government edicts doctrine applies only to state works and is narrower than the bar on copyright protection for federal works. See Georgia, 140 S. Ct. at 1509–10. For instance, the doctrine applies only to works of a judge or legislator, id. at 1513, whereas the Act’s bar on copyrighting “work[s] of the United States Government,” in 17 U.S.C.
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