Page:Code Revision Commission v. Public.Resource.Org, Inc. (F.3d).djvu/8

1236 equitable relief for abuse of discretion, considering questions of law de novo and findings of fact for clear error. Preferred Sites, LLC v. Troup Cty. , 296 F.3d 1210, 1220 (11th Cir. 2002).

In order to establish a prima facie case of copyright infringement, “a plaintiff must show that (1) it owns a valid copyright in the [work] and (2) defendants copied protected elements from the [work].” Peter Letterese And Assocs., Inc. v. World Inst. of Scientology Enters. , 533 F.3d 1287, 1800 (11th Cir. 2008). A valid copyright registration “constitute[s] prima facie evidence of the validity of the copyright.” 17 U.S.C. § 410(c). Once the plaintiff has produced a valid copyright registration, the burden shifts to the defendant to establish that the copyright is invalid. See Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1233 (11th Cir. 2010). There is no dispute that the State of Georgia has a registered copyright in the OCGA annotations. Nor do the parties contest that PRO copied the OCGA in its entirety. Thus, at the heart of this case is the question whether Georgia’s copyright in the OCGA is valid; on this issue PRO carries the burden of proof.

The Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, Sec. 8, cl. 8. Congress has exercised this power by passing the Copyright Act. 17 U.S.C. § 101 et seq. Under the Copyright Act:

"Copyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

17 U.S.C. § 102.

As this provision makes clear, “authorship” is central to the statutory scheme. Only “original works of authorship” are eligible for copyright protection. What’s more, authorship generally determines who has a possessory interest in a work. “Copyright in a work… vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). Indeed, authorship allows a person to claim copyright protection regardless of whether the work has been registered with the United States Copyright Office. As we have explained, “[c]opyright inheres in authorship and exists whether or not it is ever registered.” Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1531 (11th Cir. 1994). In consequence, to ascertain who holds a copyright in a work, we ordinarily must ascertain the identity of the author.

The meaning of authorship takes on special significance in cases like this where we consider the copyrightability of a government edict. A long line of authority, stretching back more than 180 years, establishes that, with respect to certain governmental works, the term “author” should be construed to mean “the People,” so that the general public is treated as the owner of the work. This means that a work subject to the rule is inherently public domain material and thus not eligible for copyright protection. The foundations of the case law establishing this doctrine are far from clear. Few courts have fully explained the basis for this idea and the Supreme Court last addressed the question in 1888. Thus, before explaining why we construe the “author” of the OCGA to mean “the People,” it’s worth examining the principal cases in some detail in order to understand the considerations that guided them.