Code Revision Commission et al v. Public.Resource.Org, Inc.

Filing 28

First MOTION for Leave to File An Amicus Curiae Brief in Support of Plaintiff with Brief In Support by Matthew Bender & Company, Inc. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Bowler, John)

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AMICUS EXHIBIT 1

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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,
v.
PUBLIC.RESOURCE.ORG,
INC.,
Defendant.

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CIVIL ACTION NO.
1:15-cv-2594-MHC

AFFIDAVIT OF ANDERS GANTEN
I, Anders Ganten, state as follows:
1.

I am over the age of 18.

2.

I currently serve as Senior Director Government Content Acquisition

at LexisNexis, which oversees amicus Matthew Bender & Company, Inc. (for
purposes of this Affidavit, “LexisNexis”).
3.

LexisNexis is a leading global provider of content-enabled workflow

solutions designed specifically for professionals in the legal, risk management,
corporate, government, law enforcement, accounting, and academic markets.
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LexisNexis originally pioneered online information with its Lexis® and Nexis®
services. LexisNexis also provides and publishes analytic legal research materials.
4.

LexisNexis has executed a contract (the “Contract”) with the Code

Revision Commission on Behalf of and For the Benefit of the General Assembly of
Georgia and the State of Georgia Commission (the “Commission”) under which
LexisNexis is responsible for researching, managing, creating, publishing, and
distributing an annotated version of State laws as the Official Code of Georgia
Annotated (“O.C.G.A.”).
5.

The Contract is awarded under an open bid process, whereby

LexisNexis and third parties may present bids to administer the Commission’s
project to publish and distribute the laws of the state of Georgia in both hard bound
book and electronic format.
6.

Under the Contract, LexisNexis provides two functions: (1) publically

and freely distributing the statutory texts of Georgia and (2) researching, creating,
managing, publishing, and distributing annotations to the O.C.G.A. as a work for
hire.
7.

To distribute the statutory portion of the codification of Georgia’s

laws as required in the Contract, LexisNexis provides online 24/7/365 access to the
statutory text of Georgia laws and the Georgia Constitution via a link to the State
of Georgia website located at www.legis.ga.gov.

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8.

All statutory text and numbering, numbers of titles, chapters, articles,

parts and subparts, captions and history lines are included in this publication. This
online resource is entirely free to users.
9.

The online electronic version of Georgia’s laws includes robust

features and capabilities, such as “terms and connectors” searching and “natural
language” searching.
10.

Online Georgia code users may also print copies, save it to their hard

drive in PDF format, or e-mail copies to others.
11.

As part of its obligations under the Contract with the Commission,

LexisNexis’s team of attorney-editors creates annotations for the relevant statutes
in the O.C.G.A. (the “Annotations”).
12.

These editors create substantive original Annotations on select legal

cases regarding the constitutionality, purpose, intent, and meaning of words and
phrases, as well as illustrations of particular statutory provisions.
13.

These Annotations generally provide a brief description of the

application or interpretation of statutes, rules, laws or constitution, as well as
analysis and guidance of the legal holdings within a case that have relevance to
those provisions.

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14.

The attached document labeled Amicus Exhibit 2 provides an example

of the statutory text and LexisNexis’s Annotations to Official Georgia Code § 107-21. Amicus Exhibit 2 is a true and accurate copy of the material.
15.

The creation of the Annotations for the entire Georgia code requires a

labor-intensive, creative process.
16.

The LexisNexis editors, who are all attorneys (which is required under

the Contract), begin by reading case law opinions to identify discussion points and
interpretation issues regarding the Georgia code, court rules, and constitutional
provisions at issue.
17.

The material is subjectively analyzed for noteworthiness, along with a

determination of whether the court or other authority’s discussion is relevant to an
understanding of the provision.
18.

After cases are culled and selected for inclusion, the editors then

verify each potential source to ensure validity and to gain an understanding of how
the statutory provision relates to the issue being discussed.
19.

Upon verification, the editors draft the Annotation focusing on

succinctness, accuracy, and guidance for future readers.
20.

Each Annotation is an original and creative work of authorship that is

protected by copyrights owned by the State of Georgia as a work for hire.

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21.

The Annotation often includes a written analysis of the court’s

application of the law to the particular facts of the case law opinion, or describing
the court’s interpretation or construction of the provision.
22.

Certain cases are selected for an in-depth review and analysis by a

quality review team and further editing.
23.

For those Annotations created by the editors in the specialized

Prospective Case Law Enhancements group, LexisNexis forwards the Annotations
to Georgia legal analysts for additional review and editing.
24.

Once the Annotation is checked for accuracy, style , and jurisdictional

requirements, the most on-point and specific classification, as selected by the
editors, is assigned to the Annotation from the LexisNexis taxonomy scheme for
indexing. Upon completion, the Annotation is included for online and print
product publication.
25.

The O.C.G.A. is subject to continuous review to ensure that the

information is accurate. LexisNexis also makes additions to the statutory text of
state laws previously approved and enacted by the legislature of the State of
Georgia. When appropriate, subsequent history is added to each case Annotation.
When LexisNexis determines that the Annotation is no longer relevant due to
negative treatment, it is removed or limited.

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26.

As shown in Amicus Exhibit 2, the Annotations created by LexisNexis

not only include case notes, but also Attorney General opinions, advisory opinions
of the State Bar, law reviews, and bar journals. The Annotations contain
evaluative, analytical or subjectively descriptive analysis and guidance. Moreover,
the analysis and guidance, selection are carefully crafted by LexisNexis’ editors,
who have years of legal and statutory experience to illustrate and interpret the
texts.
27.

The LexisNexis editorial staff regularly reviews these materials and

subjectively selects those it deems the most noteworthy for inclusion in its
Annotations to the statutory and constitutional texts.
28.

The Official Code of Georgia Annotated series also includes the

United States Constitution, commentary from the Corporate Code Committee of
the Business Law Section of the State Bar of Georgia, the Rules and Regulations of
the State Board of Workers’ Compensation, and the Rules and Regulations of the
Subsequent Injury Trust Fund. These secondary and regulatory materials are
selected, compiled and assimilated by the LexisNexis editorial staff.
29.

Pursuant to the Contract, the State of Georgia owns the copyright in

the Annotations as a work for hire, which it exclusively licenses to LexisNexis.
LexisNexis does not charge the Commission any fee to create the Annotations.
Instead in recognition of the significant time, expertise and creativity required to

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generate the O.C.G.A., the Contract authorizes LexisNexis to charge a fee to
customers accessing online copies of and to sell hardcopy books and CD’s of the
work. However, the Commission places a contractual cap on the amount
LexisNexis may charge for such access and works. Contractually, LexisNexis
must also incur the expense of keeping inventory on hand to provide a reasonable
supply of complete sets of hard copies of the O.C.G.A. so that it may fill any
request within two weeks.
30.

If the Annotations were not subject to copyright protection or if the

PRO and the public could freely access the O.C.G.A. as a fair use under the
Copyright Act, LexisNexis could not recoup its significant investment of creativity
and resources in developing the Annotations, and it would lose all incentive to
remain in the Contract or create the Annotations unless it were directly paid for
such services.
31.

PRO does not transform the Annotations. PRO does not add, edit,

modify, comment on, criticize or create any analysis or notes of its own. The
Annotations are already made available electronically by LexisNexis with a robust,
fully searchable engine. PRO’s use of the Annotations is for exactly the same
purpose as LexisNexis and the Commission makes the Annotations available—for
legal and scholarly research and public and judicial review. The activities of PRO
destroy the marketplace and economic incentives for LexisNexis to create the

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Annotations. No person will pay for annotations when the identical annotations
are available online for free.
32.

LexisNexis’s sole revenue to recoup these costs is through hard copy

sales, and licensing online access to the O.C.G.A. as permitted by the Contract, and
which are easily and economically offered to the public. Because PRO has copied
every word of every Annotation verbatim and posted them free of charge, PRO’s
misappropriation destroys LexisNexis’s ability to recover these costs.
33.

Since 2003, Thomson West has created its own annotations to the

Official Georgia Code in its West’s® Code of Georgia Annotated, and it sells
hardcopies and licenses access to its annotations to recoup the costs and profit from
the efforts.
[valediction and signature on following page]

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FURTHER AFFIANT SAYETH NAUGHT
The undersigned declares under penalty of perjury that the foregoing is true and
correct.
______________________________
Anders Ganten
Date: _5/17/16________

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