Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 20 of 47
§ 105, applies to works created by all federal “officer[s] or employee[s],” without regard to the nature of their position or scope of their authority, id. at 1509–10.
Defendant does not offer any evidence that a judge or legislator wrote any of Plaintiffs’ standards. Instead, it argues that “once incorporated into law, [Plaintiffs’ standards] are recreated as—transformed into—government edicts.” Def. Supp. Br. at 3–4 (citing Georgia, 140 S. Ct. at 1504). For support, Defendant relies on Georgia v. Public.Resource.Org, 140 S. Ct. at 1503, in which the works in question were prepared by a private company, Lexis, pursuant to a work-for-hire agreement with Georgia’s Code Revision Commission. Georgia, 140 S. Ct. at 1508. Unlike in Georgia, there is no evidence here that that state legislators hired Plaintiffs to draft the standards. The Copyright Act’s use of the term “author[]” “presuppose[s] a degree of originality” and “[o]riginal, as the term is used in copyright, means … that the work was independently created by the author (as opposed to copied from other works).” Feist, 499 U.S. at 345–46. A government body that merely incorporates a standard by reference does not independently create any content, and therefore does not become an “author” of the standard. Defendant points to no authority to the contrary.
Third, Defendant attempts to overcome the presumption that Plaintiffs own copyrights in the standards by arguing that Plaintiffs failed to list all joint authors in their registration applications. Def.’s 2d MSJ at 45. The court has already considered and rejected this argument. See ASTM, 2017 WL 473822, at *7. “Beyond showing that Plaintiffs’ recordkeeping could perhaps be more thorough, Defendant has not identified any evidence that [Plaintiffs] do not own the copyrights of the standards.” Id.; see also Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., 747 F.3d 673, 685 (9th Cir. 2014) (upholding the validity of copyright registrations that did not list all joint authors); Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc.,
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