and may be subject to a number of equitable and legal remedies, id. §§ 502–505. Reflecting copyright’s balance between private ownership and public welfare, the Act has long recognized that certain “fair use[s]” of a copyrighted work do not constitute infringement. Id. § 107. Not all uses of a copyrighted work are “within the exclusive domain of the copyright owner,” the Supreme Court has explained, “some are in the public domain.” Sony Corp., 464 U.S. at 438, 104 S.Ct. 774.
By its plain terms, the Copyright Act says nothing about what, if anything, happens when a copyrighted work is incorporated by reference into federal, state, or local statutes or regulations. The SDOs take this statutory silence, along with the fact that Congress enacted the current version of the Act just years after it authorized federal agencies to incorporate works by reference into federal regulations, see Act of June 5, 1967, Pub. L. No. 90-23, 81 Stat. 54, 54 (codified at 5 U.S.C. § 552(a)(1)) (providing that material “is deemed published in the Federal Register when incorporated by reference”), as proof positive that Congress intended to establish a comprehensive copyright regime that contemplates no effect on copyright when works are incorporated by reference into law. Accordingly, the SDOs contend that they have a straightforward claim of copyright infringement: they registered copyrights to ten ordinary works—the standards at issue in this appeal—and PRO invaded their exclusive rights when it reproduced and distributed copies of the works on a public website. Case closed.
Unsurprisingly, PRO sees it differently. As an initial matter, PRO argues that there is a triable question as to whether the standards at issue here were ever validly copyrighted given the Act's prohibition on copyrighting “work[s] of the United States Government,” 17 U.S.C. § 105, and the fact that government employees may have participated in drafting certain standards. PRO, however, failed to adequately present this claim to the district court and has thus forfeited it. See Keepseagle v. Perdue, 856 F.3d 1089, 1053 (D.C. Cir. 2017) (explaining that “legal theories not asserted” in the district court “ordinarily will not be heard on appeal” (quoting District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984))). In any event, given PRO 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,” 17 U.S.C. § 101 (defining “work the United States Government”), the argument is meritless.
Aside from the government-work issue, PRO advances two primary challenges to the SDOs’ copyright claim. First, in contrast to the SDOs’ view that standards remain copyrighted even after incorporation, PRO contends that incorporation by reference makes these works a part of the “law,” and the law can never be copyrighted. Allowing private ownership of the law, PRO insists, is inconsistent with the First Amendment principle that citizens should be able to freely discuss the law and a due process notion that citizens must have free access to the law. PRO also maintains that the Copyright Act itself, when viewed through the lens of these constitutional concerns, also supports extinguishing copyright, Second, PRO argues that, even assuming the incorporated standards remain copyrighted, PRO’s copying qualifies as a fair use because it facilitates public discussion about the law—a use within the “public domain.”
PRO and the SDOs each seek a bright-line rule either prohibiting (the SDOs) or permitting (PRO) all of PRO’s uses of every standard incorporated by reference into law. The district court, accepting this
