Code Revision Commission et al v. Public.Resource.Org, Inc.
Filing
11
AMENDED COMPLAINT FOR INJUNCTIVE RELIEF against Public.Resource.Org, Inc., filed by State of Georgia, Code Revision Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Askew, Anthony) Please visit our website at http://www.gand.uscourts.gov/commonly-used-forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form.
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CODE REVISION COMMISSION on
behalf of and for the benefit of THE
GENERAL ASSEMBLY OF
GEORGIA, and THE STATE OF
GEORGIA,
Plaintiff,
CIVIL ACTION NO.
v.
1:15-CV-02594-MHC
PUBLIC.RESOURCE.ORG, INC.
Defendant.
AMENDED COMPLAINT FOR INJUNCTIVE RELIEF
Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Plaintiff Code Revision Commission
on Behalf of and For the Benefit of the General Assembly of Georgia and the State
of Georgia (“Commission”), hereby states its first amended complaint for
injunctive relief against Public.Resource.Org, Inc. (“Defendant”) and alleges, on
information and belief, the following against Defendant:
NATURE OF THIS ACTION
1.
This action for injunctive relief arises from Defendant’s systematic,
widespread and unauthorized copying and distribution of the copyrighted
annotations in the Official Code of Georgia Annotated (“O.C.G.A.”) through the
distribution of thumb drives containing copies of the O.C.G.A. and the posting of
the O.C.G.A. on various websites. Defendant has facilitated, enabled, encouraged
and induced others to view, download, print, copy, and distribute the O.C.G.A.
copyrighted annotations without limitation, authorization, or appropriate
compensation. On information and belief, Defendant has also created
unauthorized derivative works containing the O.C.G.A. annotations by re-keying
the O.C.G.A. in order to make it possible for members of the public to copy and
manipulate the O.C.G.A., thereby also encouraging the creation of further
unauthorized derivative works.
2.
The copyrighted annotations include analysis and guidance that are
added to the O.C.G.A. by a third party publisher of the O.C.G.A. as a work for
hire. These annotations include synopses of cases that interpret the O.C.G.A.,
summaries of Opinions of the Attorney General of Georgia, and summaries of
research references related to the O.C.G.A. Each of these annotations is an
original and creative work of authorship that is protected by copyrights owned by
the State of Georgia. Without providing the publisher with the ability to recoup its
costs for the development of these copyrighted annotations, the State of Georgia
will be required to either stop publishing the annotations altogether or pay for
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development of the annotations using state tax dollars. Unless Defendant’s
infringing activities are enjoined, Plaintiff and citizens of the State of Georgia, will
face losing valuable analysis and guidance regarding their state laws.
JURISDICTION AND VENUE
3.
This is a civil action seeking injunctive relief for copyright
infringement under the Copyright Act of 1976, as amended, specifically 17 U.S.C.
§§ 101, et seq.
4.
This Court has jurisdiction in and over this copyright infringement
action pursuant to 17 U.S.C. §§ 101, et seq., and 28 U.S.C. §§ 1331 and 1338(a).
5.
This Court has personal jurisdiction over Defendant. Defendant has
infringed the State of Georgia’s copyright in Georgia by distributing infringing
copies of the O.C.G.A including copyrighted annotations to persons in Georgia, to
Georgia Speaker of the House David Ralston and Georgia Legislative Counsel
Wayne R. Allen at locations within the State of Georgia on or about May 30, 2013.
On or about September 24, 2013, Defendant further distributed infringing copies of
the O.C.G.A. including copyrighted annotations on thumb drives to at least eight
(8) institutions in and around the State of Georgia. Defendant further presented
copies of the O.C.G.A. including copyrighted annotations on at least one Internet
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website (https://public.resource.org, https://bulk.resource.org, and/or
https://law.resource.org) that attracts citizens from Georgia as viewers and actively
encourages all such individuals to copy, use, and disseminate to others in Georgia
and elsewhere, and to create derivative works of the O.C.G.A. Defendant still
further solicited and continues to solicit funds on one of its own websites
(https://yeswescan.org) and a crowd funding website
(www.indiegogo.com/projects/the-laws-of-georgia) to help Defendant scan and
post the O.C.G.A. including copyrighted annotations, which websites attract and
affect citizens from the State of Georgia. Defendant’s website at
https://yeswescan.org indicates that $3,035 dollars were raised as of June 15, 2015
to assist Defendant in infringing the State of Georgia’s copyrights in the O.C.G.A.
copyrighted annotations. Individual visitors are also encouraged to provide
financial donations on several of the Defendant’s websites via a PayPal account,
and Defendant offers for sale multiple products via the Internet, including phone
cases, caps, stickers, stamps, mugs, bags, and prints at
http://www.zazzle.com/carlmalamud/.
6.
Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 and 1400
since a substantial number of the claims recited in this Complaint arose in the State
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of Georgia and the Defendant does business in this state. Paragraph 5 above is
incorporated by reference as if set forth fully herein.
PARTIES
7.
Plaintiff Georgia Code Revision Commission is acting on behalf of
and for the benefit of the General Assembly of Georgia and the State of Georgia.
The Georgia Code Revision Commission is composed of fifteen members selected
from the Georgia House, the Georgia Senate and the State Bar of Georgia
including a judge of the superior courts and a district attorney. The Georgia Code
Revision Commission compiles and obtains the publication of the O.C.G.A. The
Georgia General Assembly enacts laws on behalf of the State of Georgia.
8.
Defendant Public Resource.Org is a California corporation with its
principal place of business located at 1005 Gravenstein Highway North,
Sebastopol, California 95472.
ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
Plaintiffs and Their Infringed Copyrighted Works
9.
The State of Georgia enacts and promulgates the laws of the state
through its legislature. The state laws are provided in Code sections. Periodically,
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typically annually, the Georgia General Assembly (“Legislature”) revises,
modifies, and amends its laws through supplemental laws and amendments. The
Georgia General Assembly is assisted by the Code Revision Commission in
publishing the Georgia state laws.
10.
The Legislature contracts with a publisher, currently Matthew Bender
and Company, Inc., a member of the LexisNexis Group (“LexisNexis”), a division
of Reed Elsevier Properties, Inc., to publish an annotated version of the State laws
as the O.C.G.A. Pursuant to this contract (“Code Publishing Contract”), and in
order to allow LexisNexis to recoup its publishing costs, LexisNexis is permitted to
sell the O.C.G.A., with the copyrighted annotations, in both hard bound book and
electronic format for a set fee.
11.
In its capacity as publisher of the O.C.G.A., and through its own
original creation, selection, coordination and/or arrangement, LexisNexis makes
additions to the statutory text of the state laws previously approved and enacted by
the Legislature. One example of additions made by LexisNexis is a summary of a
judicial decision that relates to a particular Code section and illustrates and informs
as to an interpretation of that Code section. This judicial summary is added at the
end of the relevant Code section under the heading “Judicial Decisions.” See
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Exhibit 1 for examples of O.C.G.A. judicial summaries. The judicial summary is
only added in the annotated publication and is not enacted as law.
12.
In order to create judicial summaries as original and creative works of
authorship, LexisNexis selects and reads relevant judicial decisions. LexisNexis
then distills each relevant decision down to a single paragraph. The succinctness
and accuracy of the judicial summaries are in large part what make them valuable
to attorneys and others researching the Code. Accordingly, the text of the judicial
summaries of the O.C.G.A. must be and is carefully crafted by LexisNexis in order
to illustrate and interpret the Code sections of the O.C.G.A.
13.
These judicial summaries, along with notes and other original and
creative non-statutory text added by LexisNexis to the Georgia statutory text, and
the compilations thereof, are prepared as works made for hire for the State of
Georgia and are protected by copyright. These judicial summaries and additional
non-statutory text are further selected, coordinated and/or arranged in an original
manner in the O.C.G.A and protected by compilation copyright. Accordingly, the
O.C.G.A. contains individual judicial summaries, non-statutory text, and
compilations thereof, which are separately copyrightable and copyrighted. The
judicial summaries and other non-statutory text together with the compilations
thereof are referred to herein as the “Copyrighted Annotations.” The Copyrighted
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Annotations are created by LexisNexis for the State of Georgia pursuant to the
state’s Code Publishing Contract with LexisNexis. Therefore, each of Plaintiff’s
Copyrighted Annotations, as to which infringement is specifically alleged below,
are original works of authorship protected by copyright, and exclusive rights under
these copyrights are owned by Plaintiff. These copyrights have been registered
with the United States Copyright Office, or have an application for registration
pending with the United States Copyright Office.
14.
Plaintiff does not assert copyright in the O.C.G.A. statutory text itself
since the laws of Georgia are and should be free to the public. The Code
Publishing Contract between LexisNexis and the State of Georgia requires that
LexisNexis publish on the internet, free of charge, the statutory text of the
O.C.G.A. These free Code publications are available 24 hours each day, 7 days a
week, and include all statutory text and numbering; numbers of titles, chapters,
articles, parts, and subparts; captions and headings; and history lines. The free
Code publications are fully searchable, and the catchlines, captions and headings
are accessible by links from the table of contents. The free Code publication of the
State of Georgia is accessible via a website link found on the State of Georgia
website www.legis.ga.gov.
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Defendant’s Copying and Distribution of Plaintiffs’ Copyrighted
Annotations
15.
On information and belief, Defendant has, without authorization,
copied at least 140 different volumes/supplements containing the O.C.G.A.
Copyrighted Annotations, including the original selection, coordination and
arrangement therein, the copyrights for which are owned by the State of Georgia.
Each of these copied works has been posted by the Defendant on at least one of its
websites, https://public.resource.org, https://law.resource.org, and
https://bulk.resource.org, and is available to members of the public for
downloading, viewing, and printing. See
https://law.resource.org/pub/us/code/ga/georgia.scan.2013/. The electronic nature
of these documents, and their availability on the Internet, magnifies the ease and
speed with which they may be copied and distributed to others.
16.
On information and belief, Defendant has, without authorization,
copied or “rekeyed” at least some of Plaintiff’s Copyrighted Annotations prior to
posting them on Defendant’s website(s) to make the Copyrighted Annotations
easier for members of the public to copy and manipulate, thereby encouraging the
creation of works that are derivative of Plaintiff’s Copyrighted Annotations.
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17.
On information and belief, Defendant has, without authorization,
distributed/uploaded hundreds of Plaintiff’s Copyrighted Annotations to the
website www.archive.org (“Internet Archive Website”). On information and
belief, Defendant has further falsely indicated that PublicResource.Org is the
owner of Plaintiff’s Copyrighted Annotations by uploading those works to the
Internet Archive Website with an indication that Defendant has dedicated the work
to the public and with an instruction that members of the public “can copy, modify,
distribute and perform the work, even for commercial purposes, all without asking
permission.” See, for example, https://archive.org/details/govlawgacode392000,
which indicates that O.C.G.A. Volume 39, 2000 Edition, Title 51 is subject to a
“CC0 1.0 Universal” license. Following the CCO 1.0 Universal link on that web
page directs one to http://creativecommons.org/publicdomain/zero/1.0/ where the
quoted language can be found. As a result, Plaintiff’s Copyrighted Annotations
have been downloaded by the public from the Internet Archive Website thousands
of times. See
https://archive.org/search.php?query=georgia%20code%20and%20public%20reso
urce.
18.
On information and belief, subsequent to the filing of Plaintiff’s
original Complaint (Dkt. No. 1), Defendant has, without authorization, copied at
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least 52 different volumes/supplements containing the 2015 O.C.G.A. Copyrighted
Annotations, including the original selection, coordination and arrangement
therein, the copyrights for which are owned by the State of Georgia. Each of these
copied works has been posted by the Defendant on at least one of its websites,
https://public.resource.org, https://law.resource.org, and https://bulk.resource.org,
and is available to members of the public for downloading, viewing, and printing.
See https://law.resource.org/pub/us/code/ga/georgia.scan.2015/?C=N;O=A. The
electronic nature of these documents, and their availability on the Internet,
magnifies the ease and speed with which they may be copied and distributed to
others.
19.
On information and belief, Defendant’s ongoing and widespread
copying and distribution of Plaintiff’s Copyrighted Annotations are deliberate and
willful acts of copyright infringement that are part of a larger plan designed to
challenge the letter of U.S. copyright law and force government entities (in the
U.S. and elsewhere) to expend tax payer dollars in creating annotated state codes
and making those annotated codes easily accessible by Defendant. Defendant’s
websites https://public.resource.org and https://yeswescan.org are dedicated to
these efforts, and in January of 2014, Carl Malamud, Defendant’s founder and
president, testified in front of the U.S. House of Representatives, House Judiciary
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Committee, to advance an amendment to the U.S. Copyright Act making state and
local official legal documents uncopyrightable for reasons of public policy. No
such amendment has been adopted by Congress. On information and belief, Carl
Malamud has engaged in an 18 year-long crusade to control the accessibility of
U.S. government documents by becoming the United States’ Public Printer – an
individual nominated by the U.S. President and who is in control of the U.S.
Government Printing Office. Carl Malamud has not been so nominated.
20.
On information and belief, Defendant is employing a deliberate
strategy of copying and posting large document archives such as the O.C.G.A.
(including the Copyrighted Annotations) in order to force the State of Georgia to
provide the O.C.G.A., in an electronic format acceptable to Defendant.
Defendant’s founder and president, Carl Malamud, has indicated that this type of
strategy has been a successful form of “terrorism” that he has employed in the past
to force government entities to publish documents on Malamud’s terms. See
Exhibit 2.
21.
Consistent with its self-described strategy of mass publication
terrorism, Defendant freely admits to the copying and distribution of massive
numbers of Plaintiff’s Copyrighted Annotations on at least its
https://yeswescan.org website. See Exhibit 3. Defendant also announced on the
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https://yeswescan.org website that it has targeted the States of Mississippi,
Georgia, and Idaho and the District of Columbia for its continued, deliberate and
willful copying of copyrighted portions of the annotated codes of those
jurisdictions. Defendant has further posted on the https://yeswescan.org website,
and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its
deliberate and willful copying and distribution of Plaintiff’s Copyrighted
Annotations would be “greatly expanded” in 2014. Defendant has further
instituted public funding campaigns on a website www.indiegogo.com to support
its continued copying and distribution of Plaintiff’s Copyrighted Annotations.
Defendant has raised thousands of dollars to assist Defendant in infringing the
O.C.G.A. Copyrighted Annotations.
22.
Defendant deliberately and willfully distributed USB thumb drives
containing scanned copies of Plaintiff’s Copyrighted Annotations to members of
the State of Georgia Legislature.
23.
Defendant mailed at least ninety (90) different volumes/supplements
of the O.C.G.A. Copyrighted Annotations published over several years to
Honorable David Ralston, Speaker of the House, Georgia House of
Representatives and Mr. Wayne Allen, Legislative Counsel, Office of Legislative
Counsel, Georgia General Assembly, and, on information and belief, later mailed
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USB thumb drives containing copies of the same O.C.G.A. Copyrighted
Annotations to at least eight (8) institutions in and around the State of Georgia.
24.
Plaintiff has not authorized Defendant to copy, distribute or make
derivative works of Plaintiff’s Copyrighted Annotations. The State of Georgia
demanded that Defendant cease and desist its infringement of the O.C.G.A.
Copyrighted Annotations on at least July 25, 2013 (see Exhibit 4). Defendant has
refused to remove any and all copies of Plaintiff’s Copyrighted Annotations from
its website(s) (see Exhibit 5).
CLAIMS FOR RELIEF
First Claim
Direct Copyright Infringement in Violation of 17 U.S.C. § 106
25.
Paragraphs 1 through 23 above are incorporated by reference as set
forth fully herein.
26.
By scanning, copying, displaying, distributing, and creating derivative
works of Plaintiff’s Copyrighted Annotations—including but not limited to each
copyrighted work identified on Exhibit 6—on a widespread and continuing basis
via Defendant’s website(s) and the Internet Archive Website, Defendant’s conduct
constitutes infringement of Plaintiff’s copyrights and exclusive rights under
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copyright in violation of one or more of Sections 106, 501-503, and 505 of the
Copyright Act, 17 U.S.C. §§ 106, 501-503, 505.
27.
By scanning, copying and distributing Plaintiff’s Copyrighted
Annotations in at least twenty one (21) different volumes/supplements of the
O.C.G.A. identified on Exhibit 6 on USB thumb drives via a mail service to
multiple entities, Defendant’s conduct constitutes infringement of Plaintiff’s
copyrights and exclusive rights under copyright in violation of one or more of
Sections 106, 501-503, and 505 of the Copyright Act, 17 U.S.C. §§ 106, 501-503,
505.
28.
Defendant’s acts have been and continue to be willful, intentional and
purposeful, in violation of Plaintiff’s rights.
29.
As a direct and proximate result of Defendant’s infringement of
Plaintiff’s copyrights and exclusive rights under copyright, and because there is no
adequate remedy at law, Plaintiff is entitled to injunctive relief. Unless enjoined
by the Court, Defendant’s conduct will continue to cause severe and irreparable
harm to Plaintiff.
30.
Plaintiff is entitled to recover its attorneys’ fees and costs pursuant to
17 U.S.C. § 505.
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Second Claim
Indirect Copyright Infringement in Violation of 17 U.S.C. § 106
31.
Paragraphs 1 through 23 above are incorporated by reference as set
forth fully herein.
32.
By facilitating, encouraging and inducing members of the public to
copy, display, distribute, and create derivative works of Plaintiff’s Copyrighted
Annotations—including, but not limited to each copyrighted work identified on
Exhibit 6—on a widespread and continuing basis via Defendant’s website(s) and
the Internet Archive Website, Defendant has contributorily infringed Plaintiff’s
copyrights and exclusive rights under copyright in violation of one or more of
Sections 106, 501-503, and 505 of the Copyright Act, 17 U.S.C. §§ 106, 501-503,
505.
33.
Defendant has actual and constructive knowledge that members of the
public have copied and displayed Plaintiff’s copyrighted material, and Defendant
knowingly encouraged members of the public to do so.
34.
Defendant’s acts have been and continue to be willful, intentional and
purposeful, in violation of Plaintiff’s rights.
35.
As a direct and proximate result of Defendant’s infringement of
Plaintiff’s copyrights and exclusive rights under copyright, and because there is no
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adequate remedy at law, Plaintiff is entitled to injunctive relief. Unless enjoined
by the Court, Defendant’s conduct will continue to cause severe and irreparable
harm to Plaintiff.
36.
Plaintiff is entitled to recover its attorneys’ fees and costs pursuant to
17 U.S.C. § 505.
WHEREFORE, Plaintiff prays:
1.
That this Court enter an order pursuant to 17 U.S.C. § 502 granting
permanent injunctive relief enjoining Defendant and all of its representatives,
agents, servants, employees, related companies, successors and assigns, and all
others in privity or acting in concert with any of them, now or in the future,
without seeking the appropriate authorization from Plaintiff, from creating
derivative works of, or copying, displaying, or distributing electronic or paper
copies of, any of Plaintiff’s copyrighted works to anyone, in the manner described
above—namely, via the posting on a website or the distribution of a USB thumb
drive or otherwise;
2.
That this Court enter an order pursuant to 17 U.S.C. § 502 granting
permanent injunctive relief enjoining Defendant and all of its representatives,
agents, servants, employees, related companies, successors and assigns, and all
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others in privity or acting in concert with any of them, now or in the future,
without seeking the appropriate authorization from Plaintiff, from facilitating or
encouraging others to create derivative works of, or copy, display or distribute
electronic or paper copies of, any of Plaintiff’s copyrighted works to anyone, in the
manner described above—namely, via the posting on a website or otherwise;
3.
That this Court enter an order pursuant to 17 U.S.C. § 503 for seizure
to recover, impound, and destroy all things infringing Plaintiff’s copyrighted works
that are in the custody or control of Defendant;
4.
That this Court award Plaintiff the costs of this action and reasonable
attorneys’ fees and expenses pursuant to 17 U.S.C. § 505; and
5.
That this Court grant such other and further relief as it deems just and
proper.
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Respectfully submitted, this 8th day of October, 2015.
/s/ Anthony B. Askew
Anthony B. Askew (G.A. Bar: 025300)
Lisa C. Pavento (G.A. Bar: 246698)
Warren Thomas (G.A. Bar: 164714)
Meunier Carlin & Curfman LLC
999 Peachtree Street NE
Suite 1300
Atlanta, Georgia 30309
Telephone: 404-645-7700
Email: taskew@mcciplaw.com
lpavento@mcciplaw.com
wthomas@mcciplaw.com
Counsel for the Plaintiff, Code Revision
Commission on behalf of and for the benefit
of the General Assembly of Georgia, and the
State of Georgia
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CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to L.R. 5.1C and 7.1D of the Northern District
of Georgia, the foregoing Amended Complaint for Injunctive Relief complies with
the font and point selections approved by the Court in L.R. 5.1C. The foregoing
pleading was prepared on a computer using 14-point Times New Roman font.
/s/ Anthony B. Askew
Anthony B. Askew (G.A. Bar: 025300)
Meunier Carlin & Curfman LLC
999 Peachtree Street NE
Suite 1300
Atlanta, Georgia 30309
Telephone: 404-645-7700
Email: taskew@mcciplaw.com
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CERTIFICATE OF SERVICE
I certify that on Thursday, October 8, 2015, I electronically filed the
foregoing Amended Complaint for Injunctive Relief with the Clerk of Court using
the CM/ECF system, which constitutes service of the filed document on all counsel
of record in this proceeding under LR 5.1(A)(3), N.D. Ga.
By:
/s/ Anthony B. Askew
Anthony B. Askew (G.A. Bar: 025300)
Lisa C. Pavento (G.A. Bar: 246698)
Warren Thomas (G.A. Bar: 164714)
Meunier Carlin & Curfman LLC
999 Peachtree Street, NE, Suite 1300
Atlanta, Georgia 30309
Phone: 404-645-7700
Fax: 404-645-7707
taskew@mcciplaw.com
lpavento@mcciplaw.com
wthomas@mcciplaw.com
Counsel for the Plaintiff, Code Revision
Commission on behalf of and for the benefit
of the General Assembly of Georgia, and the
State of Georgia
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