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

Filing 29

MOTION for Summary Judgment with Brief In Support by Public.Resource.Org, Inc., Public.Resource.Org, Inc., Public.Resource.Org, Inc.. (Attachments: #1 Statement of Material Facts, #2 Brief Memorandum of Law In Support, #3 Exhibit Ex. A, #4 Exhibit Ex. B, #5 Exhibit Ex. C, #6 Exhibit Ex. D, #7 Exhibit Ex. E, #8 Exhibit Ex. F, #9 Exhibit Ex. G, #10 Exhibit Ex. H, #11 Exhibit Ex. I, #12 Exhibit Ex. J, #13 Exhibit Ex. K, #14 Exhibit Ex. L, #15 Exhibit Ex. M, #16 Exhibit Ex. N, #17 Exhibit Ex. O)(Parker, Sarah) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.--

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IN THE UNITED STATES DISTRICT COURT
FOR THE 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.

)
)
)
)
)
) CIVIL ACTION
)
) FILE NO. 1:15-CV-2594-MHC
)
)
)
)
)
)

DEFENDANT PUBLIC.RESOURCE.ORG, INC.’S
LOCAL RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
A.

Public Resource and Its Mission

1.

Carl Malamud is the founder of the nonprofit Public.Resource.org

(“Public Resource”). Declaration of Carl Malamud (“Malamud Decl.”), Ex. A at ¶¶
1, 14; Ex. B.
2.

Mr. Malamud founded Public Resource in 2007 to address an absence

of primary legal materials on the Internet, including judicial opinions (and the
underlying dockets leading to those opinions), statutes and the codifications of

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those statutes (including the legislative hearings that led to those statutes), and
federal regulations (including the underlying notices and comments leading to
those regulations). Malamud Decl., Ex. A at ¶¶¶ 15, 19.
3.

Mr. Malamud found that most states’ statutes, regulations, and the

codification of those statutes and regulations were publicly available in some form
on the Internet. Id. at ¶ 33.
4.

The technology employed to make those materials available to the

public, however, did not provide the information in a user-friendly fashion or take
advantage of the features of the Internet and its potential. Id.; see also Declaration
of Beth Noveck (“Noveck Decl.”), Ex. C at ¶ 14.
5.

In an effort to remedy this shortcoming, Public Resource has made

publicly available on the Internet, for example, copies of the Oregon Revised
Statutes, California Code of Regulations, District of Columbia Code, and the
Chicago Building, Municipal and Zoning Codes. Malamud Decl., Ex. A at ¶¶ 31,
34, 37, 39.
6.

In each of the above instances, Public Resource’s posting of these

edicts of government resulted in an improved web presence coded by individuals
and volunteers and increased public access for the materials. In the cases of

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Washington, D.C. and Chicago, city officials also were involved in the process. Id.
at ¶¶ 31-41, 44.
7.

Indeed, making edicts of government, such as legal codes, available in

bulk leads to more innovation, a better-informed citizenry, and a better democracy.
Noveck Decl., Ex. C at ¶ 14.
B.

History of the Code Revision Commission & the Official Code of
Georgia Annotated

8.

The State of Georgia enacts and promulgates its laws through its

legislature. Stipulation of Facts (“Stip.”), Dkt. 17 at ¶ 44.
9.

Georgia’s Constitution provides that “[t]he General Assembly shall

provide for the publication of the laws passed at each session.” Ga. Const., Art. 3,
Section 5, ¶ 1.
10.

It is typical for bills introduced in the General Assembly to begin, “an

Act to amend Article…Chapter…Title of the Official Code of Georgia,
Annotated,” Stip., Dkt. 17 at ¶ 81, as required by Georgia’s Constitution, Ga.
Const., Art. 3, Section 5, ¶ 4.
11.

Each year the General Assembly passes a bill to reenact the statutory

portions of the O.C.G.A. Senate Bill 340 (2014), Ex. M.

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12.

The Code Revision Commission assists the legislature in publishing

the laws it enacts in the Official Code of Georgia (“O.C.G.A.”). Stip., Dkt. 17 at
¶ 82.
13.

The Commission was created by the General Assembly in 1977 and

tasked with selecting a publishing firm “possessing the necessary expertise and
manpower to accomplish a complete recodification [of the state’s laws] as quickly
as possible.” Ga. Code Ann., Foreword, Ex. D at ix-x.
14.

The Code Revision Study Committee, also created by the General

Assembly, concluded that a complete revision and recodification of the state’s laws
was “long overdue” and that “the most economical and satisfactory method to
accomplish code revision within the State of Georgia is through a negotiated
contract with a publishing firm possessing the necessary expertise and manpower
to accomplish a complete recodification as quickly as possible.” Id. at ix.
15.

Upon the Study Committee’s recommendation, the General Assembly

created the Commission to select a publishing firm and “resolve the myriad of
details connected with the code revision project.” Id. at ix-x.
16.

The Commission is composed of the Lieutenant Governor, four

members of the Senate, the Speaker of the House of Representatives and four
additional members of the House of Representatives, and four members appointed
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by the State Bar of Georgia, one of whom is a judge or senior judge of the State
Superior Courts and one of whom is a State district attorney. Id. at x.
17.

From five law publishers, the Commission selected The Michie

Company to prepare and publish what would become the O.C.G.A., and entered
into a contract. Id.
C.

The Publication Agreement between Lexis/Nexis & the
Commission Regarding the O.C.G.A.

18.

Despite contracting with Michie, the Commission itself developed the

uniform numbering system and rules of style used in the new (1981) Code and
adopted an arrangement into 53 Code titles. Id. at xi.
19.

Upon completion of the editorial process, a manuscript entitled the

Code of Georgia 1981 Legislative Edition, was prepared, presented to the General
Assembly, and enacted at the 1981 extraordinary session of the General Assembly.
Annotations, indexes, editorial notes and other materials have been added to that
manuscript to produce the Official Code of Georgia Annotated, the first official
Code to be published under authority of the State of Georgia since the Code of
1933. Id.; Terry A. McKenzie, The Making of A New Code, 18 Ga. St. B.J. 3
(1982), Ex. E at 2.
20.

On October 3, 2006, the Commission issued a Request for Proposals,

and on December 27, 2006, entered into a new Agreement for Publication
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(“Agreement”) with Matthew Bender & Co. Inc. (“Lexis/Nexis”). Publication
Agreement, Ex. F at 1.
21.

The Agreement requires the official Code to include not only the

statutory provisions, but also “annotations, captions, catchlines, headings, history
lines, editorial notes, cross-references, indices, title and chapter analyses, research
references, amendment notes, Code Commission notes, and other material related
to or included in such Code at the direction of the Commission.” Id. at 2.
22.

Each O.C.G.A. volume and supplement therefore contains statutory

text and non-statutory annotation text, including judicial decision summaries,
editor’s notes, research references, notes on law review articles, summaries of the
opinions of the Attorney General of Georgia, indexes, and title, chapter, article,
part and subpart captions, and others (collectively, “annotations”) that are prepared
by Lexis/Nexis under the requirements of the agreement. Stip., Dkt. 17 at ¶ 1-3, 9,
18, 26.
23.

The Commission has regularly asserted copyright in the “catchlines of

Code sections; names of Titles, Chapters, Articles, Parts, and Subparts; history
lines; editor’s notes; Code Commission notes; annotations; research references;
cross-references; indexes; and other such materials.” Dkt. 17-8 at 1.

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24.

The Agreement requires Lexis/Nexis to adhere to the organization and

numbering used by the previous publisher. Publication Agreement, Ex. F at 3.
25.

The Agreement also provides that the Commission, not its hired

publisher, has “the ultimate right of editorial control” both over all material
contained in the O.C.G.A. and over what material is selected to become part of the
O.C.G.A. Id. at 2.
26.

The Agreement requires Lexis/Nexis to follow the Commission’s

detailed publication manual, which “reflect[s] those specific content, style and
publishing standards of the Code as adopted, approved or amended from time to
time by the Commission or its staff pursuant to Code Section 28-9-3 of the Official
Code of Georgia Annotated.” Id..
27.

Lexis/Nexis does not choose which cases to summarize in the Code’s

annotations, as the Agreement requires Lexis/Nexis to summarize “all published
opinions of the Georgia Supreme Court and the Court of Appeals of Georgia, and
all published opinions of the United States Supreme Court and other federal courts
that arose in Georgia and construed Georgia general statues, whether such
decisions favor plaintiffs, defendants, or the prosecution.” Id. at 3.
28.

The Agreement similarly requires that the Annotations include

research references and legislative history. Id. at 4-5.
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29.

The Commission’s Publication Manual is even more detailed in its

directions to Lexis/Nexis, for example providing nine pages of instruction in the
proper formulation of amendment notes and ten pages to that of Editor’s Notes.
Publication Manual, Ex. G at 78-87, 99-109.
30.

The Agreement requires that Lexis/Nexis provide Georgia’s statutes

unannotated (“Unannotated Code”) on a website that the public can access for free
using the Internet. Id. at 11-12; Stip., Dkt. 17 at ¶ 73-75.
31.

The free public website contains only the statutory text and numbering

of the O.C.G.A., stripped of its Annotations. Stip., Dkt. 17 at ¶¶ 73, 75.
32.

The Agreement requires Lexis/Nexis to track usage of the

Unannotated Code on the public website and to report annually to the Commission
the amount of usage and whether its sales of, or subscriptions to, the printed
O.C.G.A, the C.D. ROM version and similar commercial versions have decreased.
Publication Agreement, Ex. F at 12; 2015 Usage Report, Ex. H..
33.

The Agreement requires Lexis/Nexis to provide appropriate copyright

notices on both the free public website for the unannotated Code and the online
O.C.G.A. available as part of Lexis/Nexis for-profit online services and to notify
visitors that any reproduction of the O.C.G.A. other than the statutory text and
numbering is prohibited. Id. at 12.
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34.

According to Lexis/Nexis’s representative, Anders Ganten, the

Agreement between Georgia, through the Commission, and the O.G.C.A.’s
publisher is unique. Commission Minutes, Ex. I at 2.
35.

“In other states, the work on annotations is done in house or

contracted as a fee for service arrangement.” Id.
36.

In Georgia, Lexis/Nexis has the exclusive right to publish and sell the

O.C.G.A. as a printed publication, on CD-ROM, and in an online version and
receives income from its sales of the O.C.G.A. Stip., Dkt. 17 at ¶¶ 84-85.
37.

The Commission, however, only receives royalties from the licensing

fees for the CD-ROM and online versions of the O.C.G.A. Pl.’s Resp. to D.’s
Interrogatories, Ex. O at 14.
38.

In fiscal year 2014, the Commission received $85,747.91 in licensing

fee royalties. Mar. 29, 2016 Letter from L. Pavento, Ex. J at 1.
39.

For Lexis/Nexis, “the cost of publishing the Code rises each year” and

“the print publication is a struggle each year.” Commission Minutes, Ex. I at 2.
40.

The Legislative Counsel publishes the User’s Guide to the Official

Code of Georgia, Annotated. User’s Guide, Ex. N.
41.

The User’s Guide instructs those citing to the Code of Georgia to cite

to the O.C.G.A. Id. at xvii
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42.

The User’s Guide explains that some annotations are indexes, tables

and research references that advise the reader of other materials relevant to
understanding the nuances and interpretations of the statutory text itself. Id. at xxixxii.
D.

The O.C.G.A. as the only Official Code

43.

The Annotations to the O.C.G.A. include a summary of a vacated

Northern District of Georgia case that quotes “[a]ttorneys who cite unofficial
publications of 1981 code do so at their peril.” The heading of that summary
reads: “Official Code publication controls over unofficial compilation.” Ga Code
Ann. § 1-1-1, note (Judicial Decisions); Stip., Dkt. 17 at ¶ 94.
44.

Lexis/Nexis markets its printed O.C.G.A. stating “the Official Code of

Georgia Annotated (O.C.G.A) provides users with the official Georgia statutes,
fully annotated.” Stip., Dkt. 17 at ¶ 95; Ex. M to Stip., Dkt. 17-13.
45.

The Honorable Johnnie Caldwell, Representative, Chairman of the

Commission and a lawyer in Georgia for at least 43 years, told the Commission
that he buys the O.C.G.A. for the annotations. Commission Minutes, Ex. I at 2.
46.

The judicial summary annotation for Ga. Code Ann. § 50-2-1 for the

case Dep’t of Natural Resources v. Joyner, 241 Ga. 390 (1978) reads:
Salt waters of this state extend from the mean low watermark of the
foreshore three geographical miles offshore; except where a low tide
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elevation is situated within three nautical miles seaward of the low
water line along the coast, the state's three mile boundary is measured
from such low tide elevation.
Ga. Code Ann. § 50-2-1 ann.
47.

The judicial summary annotation for West’s Code of Georgia

Annotated for the same case reads: “Salt waters of Georgia extend from mean low
water mark of foreshore three geographical miles offshore, except where a low tide
elevation is situated within three nautical miles seaward of low waterline along
coast, in which case state's three-mile boundary is measured from such low tide
elevation.” Ga. Code Ann. § 50-2-1 ann. (West 2016).
48.

The judicial summary annotation for Ga. Code. Ann. § 50-2-1 for the

case State v. Bruce, 231 Ga. 783 (1974) reads:
Whichever line is correct, low tide or high tide, as the dividing line
between private property sought to be registered and the state's
property, the state is still an adjoining landowner and should have
been so named in the petition and served other than by the
advertisement "to whom it may concern," and a land registration
judgment, if granted, would not be binding upon an adjoining
landowner who was not named and served.
Ga. Code Ann. § 50-2-1.
49.

The judicial summary annotation for West’s Code of Georgia

Annotated for the same case reads:
Regardless of whether the low-tide line or the high-tide line was
the dividing line between property sought to be registered and the
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State's property as the owner of the ocean within three
geographical miles of ordinary low-water mark, State was an
“adjoining landowner” and should have been so named in the
petition and served other than by advertisement, despite contention
that by reason of statute and revision of the Constitution petitioners
were already owners of land between the high and low-tide marks
and that the land which they were seeking to register, which had
been built up by accretion, was only land above the high-tide line.
Ga. Code Ann. § 50-2-1 ann. (West 2016).
50.

The judicial summary annotation for O.C.G.A. § 50-2-1 for the case

Ga. Ry. & Power Co. v. Wright, 146 Ga. 29 (1916) reads:
That part of the Savannah River which is broken by islands,
located between an island and the Georgia mainland, is within the
jurisdiction and sovereignty of this state by virtue of this section,
and a dam constructed across the river from an island to the
Georgia shore is subject to taxation in this state.
Ga. Code. Ann. § 50-2-1.
51.

The judicial summary annotation for West’s Code of Georgia

Annotated for the same case reads:
Under Beaufort Convention 1787 and Civ. Code 1910, § 16, that
part of the Savannah river which is broken by islands, located
between an island and the Georgia mainland, is in Georgia, and a
dam from an island to the Georgia shore is subject to taxation in
Georgia.
Ga. Code Ann. § 50-2-1 (West 2016).
E.

Limitations on Public Access to the Unannotated Code

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52.

To access the unannotated code via the website link found on the

Georgia website, www.legis.ga.gov, one must accept the terms and conditions of
use generally applicable to the Lexis/Nexis websites. Stip., Dkt. 17 at ¶ 86; Ex. I
to Stip., Dkt. 17-9.
53.

The access page that allows users to access the online publication,

however, states that the Lexis/Nexis website use terms and conditions do not apply
to the O.C.G.A. statutory text and numbering. Stip., Dkt. 17 at ¶ 86; Ex. J to Stip.,
Dkt. 17-10.
54.

The Lexis/Nexis website use terms and conditions are governed by

New York state law and require the user to submit to the personal jurisdiction of
New York state courts for the purpose of litigating any action arising out of or
relating to the Lexis Nexis website use terms and conditions. Stip., Dkt. 17 at ¶ 87.
55.

Until at least May 28, 2014, the notice displayed before users could

access the unannotated code on the public access Lexis/Nexis site included a
banner page that the user had to acknowledge to gain access to the Lexis/Nexis
site. Id. at ¶ 92; Ex. L to Stip., Dkt. 17-12. This banner page stated “the latest
print version of the O.C.G.A. is the authoritative version.” Stip., Dkt. 17 at ¶ 92.

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56.

This 2014 banner page also did not explicitly state that the

Lexis/Nexis terms and conditions of use do not apply to the Georgia Code statutory
text and numbering Id. at ¶ 93; Ex. L to Stip., Dkt. 17-12.
57.

Once within the Lexis/Nexis public access site, one notice on the

website is a hyperlink to the terms and conditions specific to the Georgia Code
materials. Stip., Dkt. 17at ¶ 88; Ex. K to Stip., Dkt. 17-11. These terms and
conditions explain that a user may copy Georgia Code sections’ text and
numbering. Stip., Dkt. 17 at ¶ 90.
58.

At least one citizen of Georgia found the requirement to accept the

Lexis/Nexis terms of use before being able to access the Georgia statutory
materials “distasteful,” particularly the provision agreeing to jurisdiction in a New
York court and the provisions prohibiting use of the data even by “public and nonprofit users.” Declaration of Clay Johnson (“Johnson Decl.”), Ex. K at ¶ 10. The
Lexis/Nexis free online site also suffers from technical challenges, including
generating unwarranted security errors, displaying a blank screen in certain web
browsers, lack of bookmarking function, lack of permanent links, HTML and CSS
errors, and limited accessibility for the visually impaired. Id. at ¶¶ 11-18. Finally,
it is unclear to users what Lexis/Nexis is doing with their search terms and
navigation history. Id. at ¶ 18.
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F.

Alternatives for Access to the O.C.G.A.

59.

Fastcase, Inc. (“Fastcase”) provides subscribers a comprehensive legal

research service, including cases, statutes, regulations, court rules and constitutions
for all 50 states. Declaration of Edward Walters (“Walters Decl.”), Ex. L at ¶ 8.
60.

The Fastcase service is often offered to end users as part of an

arrangement with state and local bar association, which contract with Fastcase so
they may offer the service as a free benefit to their members. Id. at ¶ 9.
61.

In January 2011, Fastcase and the State Bar of Georgia announced a

partnership that made the Fastcase service available to the 42,000 members of the
State Bar of Georgia. Id. at ¶ 10.
62.

Fastcase has attempted on numerous occasions to license the

O.C.G.A. from the State of Georgia and Lexis/Nexis, but has been informed that
no license would be granted, at any price. Id. at ¶ 11.
63.

Instead, Fastcase offers its subscribers a version of the Code of

Georgia, but it is what O.C.G.A. § 1-1-1 terms an “unofficial compilation.” Id. at
¶ 12.
64.

Fastcase would prefer to offer the O.C.G.A. to its subscribers because

it is the version of these edicts of government promulgated by the State of Georgia.
Id. at ¶ 13.

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G.

Public Resource’s Posting of the Code

65.

To make the O.C.G.A., including the annotations, available on the

Internet, Public Resource purchased the entirety of 186 printed volumes and
supplements of the O.C.G.A. and copied them all, including their front and back
covers, and then posted those copies on its website: https//law.resource.org. Stip.,
Dkt. 17 at ¶¶ 34-36.
66.

At least one copy of each O.C.G.A. volume and supplement that

Public Resource posted on its https://law.resource.org website is in an electronic
format that displays an image of the printed publication as copied by Public
resource, which image allows for electronic page turning of the printed publication.
Id. at ¶ 37.
67.

Public Resource distributed copies of the entirety of the O.C.G.A,

contained on USB thumb drives, to the Speaker of the House, Georgia House of
Representatives, Mr. Wayne Allen, Legislative Counsel, Office of Legislative
Counsel, Georgia General Assembly, and other members of the State of Georgia
Legislature. Id. at ¶¶ 63-64.
68.

Public Resource’s purpose in scanning and posting the O.C.G.A. was

to facilitate scholarship, criticism and analysis of the official Code, to inform the

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public about the laws that govern it, for educational purposes and to encourage
public engagement with the law. (Malamud Decl., Ex. A at ¶ 45.
69.

After the Commission commenced this action, Public Resource

purchased and copied the 2015 volumes and supplements of the O.C.G.A. and
copied and posted them on its website. Stip., Dkt. 17 at ¶ 46.
70.

In addition to posting volumes of the O.C.G.A. on its own website,

Public Resource also posted them on the Internet Archive website,
www.archive.org. Id. at ¶¶ 50-52, 54-56.
71.

Each scanned copy has optimal character recognition, making it

significantly more accessible to people who are visually impaired. Malamud
Decl., Ex. A at ¶ 46.
72.

The process of posting each volume includes significant metadata,

such as the names of the titles included in each volume, making them more easily
discovered using search engines. Id.
73.

The process of posting each volume creates a version that is

compatible with e-Book readers, smart phones, and tablets. Id.
74.

Public Resource actively encourages all citizens to copy, use, and

disseminate the O.C.G.A. volumes and to create works containing them. Id.

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75.

Public Resource also provides all the volumes in bulk on its servers,

allowing users to quickly access the entire Code or a specific volume, and copy
and paste relevant sections into their own documents. Id.
76.

The Internet Archive’s user interface allows readers to search a

volume of the O.C.G.A., displaying “pins” for each page that contain the search
term, allowing a reader to quickly look for key phrases in different locations. Id.
77.

In 2014, Public Resource solicited crowd funding on the website

<indiegogo.com> to support its scanning and posting of the O.C.G.A. Id. at ¶ 42.
78.

This campaign ended on July 11, 2014 and raised approximately

$3,000 Id. at ¶ 42, 62.

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Respectfully submitted this 17th day of May, 2016.

By: /s/ Elizabeth H. Rader
Jason D. Rosenberg
Georgia Bar No. 510855
[e-mail]
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
Telephone [phone]
Fax [phone]
Elizabeth H. Rader
Admitted pro hac vice
[e-mail]
ALSTON & BIRD LLP
950 F Street, NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE 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.,

)
)
) CIVIL ACTION
)
) FILE NO. 1:15-CV-2594-MHC
)
)
)
)
)

Defendant.
CERTIFICATE OF SERVICE
I hereby certify that I have filed the foregoing Defendant
Public.Resource.Org, Inc.’s Local Rule 56.1 Statement of Undisputed
Material Facts in Support of Its Motion for Summary Judgment was
electronically filed with Clerk of Court using the CM/ECF system which will
automatically send notification of such filing to all attorneys of record.

/s/ Sarah P. LaFantano
Sarah Parker LaFantano
Georgia Bar No. 734610