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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EXHIBIT A
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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.
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CIVIL ACTION
NO. 1:15-cv-2594-MHC
DECLARATION OF CARL MALAMUD IN SUPPORT OF
PUBLIC.RESOURCE.ORG’S MOTION FOR SUMMARY JUDGMENT
I, Carl Malamud, declare as follows:
1.
I am the founder of Public.Resource.Org ("Public Resource”). I have
personal knowledge of the facts stated in this declaration and know them to
be true and correct. I could competently testify to them if called as a
witness.
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2.
I wish to explain why I purchased, scanned, and posted on the Internet
the Official Code of Georgia Annotated.
3.
As plaintiffs have mentioned that my name was considered for
appointment as Public Printer of the United States and that President Obama
did not appoint me to that position, I will explain the circumstances.
4.
From 2005-2006, I served as Chief Technology Officer to John D.
Podesta, the President and CEO of the non-profit research organization, the
Center for American Progress (“CAP”). Although my main job was to help
the institution and its people use technology effectively, John encouraged me
to undertake initiatives around national technology policy.
5.
My approach has always been hands-on, focused on building systems
that provide solutions to real problems.
6.
I am a self-taught computer expert, which affects my approach to
technology policy. In the 1980s, I consulted for a number of federal
agencies, such as the Department of Defense and the Board of Governors of
the Federal Reserve System, on the use of databases and networks. I wrote
eight advanced professional reference books and taught many engineers how
these technologies work in practice. I have since placed all my books in the
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public domain and they are available at http://catalog.hathitrust.org/Search/
Home?adv=1&type[]=author&lookfor[]=Carl+Malamud
7.
In 1993, I created the first radio station on the Internet, under the
auspices of a 501(c)(3) nonprofit I founded called the Internet Multicasting
Service. I was inspired to make the radio station non-profit by the examples
of National Public Radio and of Brian Lamb, who created C-SPAN. The
New York Times described this effort in an article entitled “Turning the
Desktop PC Into a Talk Radio Medium” which may be viewed at http://
www.nytimes.com/1993/03/04/us/turning-the-desktop-pc-into-a-talk-radiomedium.html
8.
As part of our programming, we did live streaming of speeches held at
National Press Club luncheons, and also joined the Public Radio Satellite
system, produced original programming such as my talk show “Geek of the
Week,” and received rights from Harper Audio to post audio of authors such
as T.S. Elliot and Robert Frost reading their own work. The archives of our
programming are still available on the net and may be viewed at http://
museum.media.org/radio/
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9.
In 1993, I applied for and was granted membership in the Radio TV
Gallery of the U.S. House of Representatives and connected a feeds of the
floors of the House and Senate to the Internet by installing dedicated lines
from the basement of the U.S. Capitol to our offices. The Washington Post
described this project in an article entitled “Superhighway Routed Through
Capitol Hill” which may be viewed at https://www.washingtonpost.com/
archive/politics/1994/09/19/superhighway-routed-through-capitol-hill/
0aba8ac6-e154-4bd5-8cb3-0a3b30b0e762/
10.
Being located in Washington, D.C. was fortuitous. Internet Service
Providers UUNET and MFS Datanet donated a free 10 million bit per
second link into the core of the Internet, one of the fastest links in
Washington at the time. When President Clinton’s staff wanted to do an
Internet demonstration but had not yet been able to get their own link
installed, we ran an infrared link down to the White House lawn so the
President could give his demonstration.
11.
I always considered the Internet to be a new medium, and “radio” was
only a metaphor. We did not hesitate to explore other ways of using the
Internet. In 1993, Congressman Edward J. Markey asked me why the
Securities and Exchange Commission’s EDGAR database was not available
on the Internet. I told him I didn’t see any reason why it wasn’t. I proceeded
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to get a grant from the National Science Foundation and put that database on
the Internet. Dr. Eric Schmidt, then at Sun Microsystems, gave us equipment
so we could run the service. The New York Times described the project in
an article entitled “Plan Opens More Data To Public” which may be found at
http://www.nytimes.com/1993/10/22/business/plan-opens-more-data-topublic.html
12.
We also put the full U.S. Patent database on the Internet with full text
capabilities. Not only the public, but also many patent examiners used this
service extensively., Two years later, I loaned the SEC hardware and donated
all our software so that they were able to take over the service. Our loaner
agreement with the SEC and a letter of thanks from them is available at
https://public.resource.org/sec.gov/
13.
With this background in mind,2006, when I moved back to D.C. to
work for John Podesta, I set out looking for a new policy initiative that
would further open government proceedings to the public. I decided to focus
on the proposition that video from all congressional hearings should be
streamed live on the Internet as high resolution video with closed captions
and other modern features. As part of my investigation, I met with numerous
congressional staff, and with Mr. Bruce James, the Public Printer of the
United States, and became familiar with the working of the Government
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Printing Office and their publication of the Official Journals of Government,
including the Federal Register and the Code of Federal Regulations.
14.
In 2007, I had moved the Center for American Progress from having
no technical staff,being dependent on high-priced outside consultants and
having only rudimentary capabilities to a full department working with
modern technologies, such as the Python programming language and a
properly hosted web system. I told John that my work was done, and moved
back to California where I founded my current non-profit,
Public.Resource.Org (“Public Resource”), where I have worked exclusively
since then.
15.
At Public Resource, I continued my interest in better access
throughout the country to the proceedings of Congress. After C-SPAN issued
a DMCA takedown notice to Speaker Nancy Pelosi for posting video of
herself testifying in front of the House of Representatives, I was able to
convince C-SPAN to allow far more liberal use of records of government
proceedings. James Fallows described this incident in the Atlantic, a copy of
which may be read at http://www.theatlantic.com/technology/archive/
2007/03/another-win-for-carl-malamud-or-news-you-won-apos-t-see-in-themay-2007-issue-of-the-atlantic/7543/
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16.
I continued my efforts from 2007-2010 to get Congress to make more
video available. I began posting video of congressional hearings obtained
from the few committees that were online and from C-SPAN, and wrote an
unsolicited report to Speaker Pelosi. Those efforts are documented on the
Public Resource web site at https://public.resource.org/house.gov/
17.
In 2011, one of the first acts of Speaker Boehner on taking office was
to ask me to work with Chairman Darrell Issa and his staff on congressional
video. As part of that effort, we worked with the Committee on Oversight
and Government Reform to post a full archive of their proceedings and to
develop techniques to use official transcripts to create closed-captions, the
first time Congressional video was accessible in this manner. We copied over
14,000 hours of video from all committees, an archive spanning the 100th to
the 112th Congress and furnished that data to C-SPAN and the Internet
Archive, as well as maintaining an extensive YouTube presence. A copy of
the letter from Speaker Boehner may be viewed at https://law.resource.org/
rfcs/gov.house.20110105.pdf
18.
During this same period, from 2007-2011, we worked with David
Ferriero, the Archivist of the United States. Public Resource donated
equipment to the National Archives, and we sent in volunteers to duplicate
approximately 6,000 government videos and post them to YouTube and the
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Internet Archive, where they have received over 50 million views. The New
York Times described this program in “Duplicating Federal Videos for an
Online Archive” which can be viewed at http://www.nytimes.com/
2010/03/15/technology/15fedflix.html
19.
While online video and other government databases were important
initiatives, when I started Public Resource, I felt the public suffered from the
the absence on the Internet of primary legal materials, the raw materials of
our democracy. These materials include judicial opinions (and the
underlying dockets leading to those opinions), statutes and the codifications
of those statutes (and the underlying hearings that led to those public laws)
of the legislature, and regulations (and the underlying notices and comments
that led to those regulations) of the executive branch.
20.
In 2008, working with Professor Lawrence Lessig and Creative
Commons, Public Resource posted on the Internet 1.8 million pages of case
law, including all U.S. Court of Appeals opinions from 1950 on, as well as
all U.S. Supreme Court opinions. This was the first time these judicial
opinions were freely available on the Internet. A copy of that announcement
may be viewed at https://bulk.resource.org/courts.gov/
0_Press_20080211.pdf
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21.
Public Resource went on to post all the text of the First Series of the
Federal Reporter, all of the Federal Cases, and to scan three million pages of
briefs from the Ninth Circuit of the U.S. Court of Appeals dating from the
beginning of the court to 1970. All of these materials are available for use
without restriction. In addition, all of the Federal Cases and the first forty
volumes of the Federal Reporter were retyped into HTML files so they can
be viewed as web pages in the same format we used for other court opinions.
An example is Banks v. Manchester, 128 U.S. 244, 9 S.Ct. 36, 32 L.Ed. 425
(1988) which may be viewed at https://law.resource.org/pub/us/case/
reporter/US/128/128.US.244.html
22.
In 2008, as part of posting the U.S. Court of Appeals opinions on the
Internet, a member of the public alerted me that numerous Social Security
Numbers appeared in court opinions. I redacted those privacy violations and
sent a copy of my audit to the Committee on Rules and Practice of the
Judicial Conference and to the Chief Judges of the Circuits. This effort
received a letter of thanks form the Judicial Conference is available at
https://public.resource.org/scribd/7512576.pdf
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23.
In 2008, I discovered Social Security Numbers (SSNs) of 232,000
military officers in the Congressional Record. I alerted the Government
Printing Office, the Defense Department, and the Federal Trade
Commission. The government redacted those Social Security Numbers from
their computer systems and, after I contacted them, both West and Lexis
redacted this information from their commercial services. The privacy
breach was the subject of a front-page article in Stars and Stripes entitled
“Military lags in safeguarding officers’ identities” which may be found at
http://www.stripes.com/news/military-lags-in-safeguarding-officersidentities-1.96079
24.
In 2008, an audit of the PACER system unveiled a large number of
privacy violations in District Court dockets. A comprehensive audit of 20
million pages of filings from 32 District Courts was sent to the Chief Judges
and the Judicial Conference. This effort led to changes in the privacy
procedures for the PACER system as a whole and in specific District Courts.
A copy of the letter of acknowledgement from the Honorable Royce C.
Lamberth of the District Court for the District of Columbia may be found at
https://public.resource.org/scribd/11851306.pdf
25.
In 2010, Public Resource led a national effort entitled “Law.Gov,”
which consisted of a series of fifteen workshops examining the availability
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of primary legal materials in the United States. Major law schools, such as
Harvard, Stanford, Duke, Cornell, and Colorado hosted these workshops.
Over 600 people attended them, and speakers included government officials
such as the Law Librarian of Congress, the Archivist of the United States,
the Director of the Office of the Federal Register, several White House
officials, and Professor Laurence Tribe from the Department of Justice. At
the conclusion of the workshops, we posted a set of consensus principles
with recommendations for access to legal materials. Details may be viewed
at https://law.resource.org/index.law.gov.html
26.
During this period, I continued to visit Washington and met on
numerous occasions with officials responsible for the Official Journals of
Government, including Mr. Ray Mosley of the Office of the Federal
Register, and Robert C. Tapella, the Public Printer of the United States, and
his Chief Technology Officer, Mr. Michael Wash. I came to appreciate the
important role that the Government Printing Office plays and saw great
potential in transforming the office to meet the needs of the Internet era.
27.
When Barack Obama was elected President, I spent considerable time
developing those ideas into a series of concrete actions the Government
Printing Office could take, and published those ideas in a series of papers. I
announced that I would be delighted to be considered as a possible candidate
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for Public Printer, and posted a web site called “Yes We Scan.” A number of
prominent individuals agreed to lend their name as supporters. A copy of that
web page may be found at https://yeswescan.org/index.gpo.html
28.
Advancing one’s name publicly for an appointed office is somewhat
unusual, but one of my goals was to raise public awareness of the important
role the Government Printing Office played since its founding in 1861. My
campaign did so: a large number of people read the position papers and
expressed their “tweets of support.” A “flip book” with 1,017 of those tweets
may be found at at https://yeswescan.org/tweets_for_net.pdf
29.
I had several interviews at the Office of Presidential Personnel and
was informed that I was on the short list. While I was not named to the
position, I was asked by the Obama-Biden Transition effort to serve as a
consultant and expand my thoughts on how the Federal Register could be
transformed. A copy of the paper I submitted in January, 2009 may be
viewed at https://public.resource.org/change.gov/reboot.register.pdf
30.
That effort led to far-reaching changes in the publication of the
Federal Register. I was pleased to help support Mr. Raymond Mosley of the
Office of the Federal Register (OFR) in those efforts and to serve as the
nominator for OFR as the winner of the first Walter Gellhorn Award for
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innovation in government services from the Administrative Conference of
the United States. A copy of the statement from the Office of the Federal
Register may be viewed at https://www.federalregister.gov/blog/2011/12/
federalregister-gov-wins-award-for-innovation-best-practices
31.
Although availability of Federal information has been my primary
focus since 1993, at Public Resource I also looked at the availability of
primary legal materials published by states and municipalities. In 2008,
Public Resource posted a copy of the California Code of Regulations, which
previously was not available on the Internet. We also posted a copy of Title
24 of the California Code of Regulations, which consists of the building,
electrical, fire, plumbing, and other public safety codes.
32.
Since 2008, we have continued our efforts to post the public safety
codes incorporated into law by state governments. In 2012, that effort was
expanded to include technical public safety codes that are incorporated by
reference into the Code of Federal Regulations. Neither of these actions was
undertaken lightly, and I read deeply into the issue of promulgation of the
law through history.
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33.
In most states, I found that state statutes and regulations, as well as the
codification of the statutes and regulations, were available in some form on
the Internet. In many cases, however, the technology employed did not make
the information in a very useful fashionor take advantage of the Internet and
its potential.
34.
In 2008, the State of Oregon tried to prevent Internet sites, including
the one run by Public Resource, from posting the Oregon Revised Statutes,
and initially threatened to sue them. I was pleased to be invited, however,
along with citizens of Oregon, to testify before a joint session of the
Legislative Counsel Committee on June 19, 2008. At the conclusion of that
hearing, the Legislative Counsel Committee resolved unanimously not to
assert copyright over the Oregon Revised Statutes. Copies of my testimony,
and press reports about the Oregon situation may be viewed at https://
public.resource.org/oregon.gov/
35.
A lecture I gave at Lewis & Clark Law School and the University of
Oregon entitled “Three Revolutions In American Law” about the Oregon
situation and the principle that the law has no copyright in the United States
may be viewed at https://public.resource.org/oregon.gov/
3revolutions_pamphlet.pdf
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36.
After Oregon ceased asserting copyright in its laws, a student at Lewis
& Clark Law School who had majored in computer science as an
undergraduate, was able to create a vastly better web presence for the
Oregon Revised Statutes. Public Resource was pleased to provide some
financial support and technical advice for this effort. The web site may be
viewed at http://www.oregonlaws.org/
37.
A similar situation occurred in April 2013 in the District of Columbia,
where the D.C. Code was unavailable to download and had restrictions on
use asserting copyright. I spent $803 and purchased the Official DC Code,
scanned the documents, and sent them on a USB Drive to V. David
Zvenyach, the General Counsel of the DC Council, with a letter detailing the
reasons D.C.’s copyright assertions were unfounded.
38.
Mr. Zvenyach looked into the situation and in a September 13, 2013
letter to me acknowledged the importance to an informed citizenry of
promulgation of the law. But, he went further. A few days later, the DC
Council issued an unofficial version of the code that could be downloaded in
bulk, and then Mr. Zvenyach and local volunteer programmers created a far
better version of the Code on a public web site. A July 8, 2014 article in
Government Executive described the project and may be viewed at http://
www.govexec.com/state-local/2014/07/ultimate-open-government-
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unlocking-laws/87997/. The DC Code site they created may be viewed at
http://dccode.org/
39.
I have repeatedly seen that making an official code available in bulk
enables volunteers in the community to create a better web. In Chicago, for
example, I worked with American Legal Publishing, the official codification
contractor for the Chicago City Council, to make a copy of the Chicago
Code available for download, with the active support of the City Clerk of
Chicago, the Honorable Susana Mendoza. In August, 2013, Todd Meyers,
the Vice President for Client Services of American Legal Publishing, worked
with me to provide a custom version of the Chicago Code in bulk as a series
of RTF files, making it easy for me to transform the entire code into other
formats, such as HTML. We posted quarterly snapshots of the Chicago
Building, Municipal and Zoning Codes from 2007-2013 on our site at
https://law.resource.org/pub/us/code/city/il/Chicago/
40.
After the data was made available, a nonprofit organization in
Washington, D.C., the OpenGov Foundation, took that raw data and put
together a beautiful web site which may be found at http://chicagocode.org/
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41.
I was pleased to be a speaker, along with Clerk Mendoza, when this
new site was unveiled on November 25, 2013. Her press release about the
event may be viewed at http://www.chicityclerk.com/news/clerk-mendozajoins-open-government-movement-leaders-tonight-help-crack-chicagomunicipal-code
42.
In 2013, purchased paper copies of the official state codes of a number
of states, including Arkansas, Colorado, Idaho, Mississippi, and Arkansas. I
had those documents scanned. Then I put the files on a George Washington
USB “thumb drive,” and sent them to the state officials charged with
codification and promulgation of state law. On May 30, 2015, I sent such a
letter to the Honorable David Ralston, Speaker of the House of the Georgia
House of Representatives and Mr. Wayne R. Allen, the Legislative Counsel.
That letter may be viewed at https://law.resource.org/pub/us/code/ga/ga.gov.
20130530.pdf
43.
I have encountered assertions, like the State of Georgia’s, that the
State owns copyright in its Official Code, before. For example, in 2007, I
created a mirror of the U.S. Copyright records, data used in services such as
Google Book Search and the Internet Archive’s Open Library. The Library
of Congress asserted copyright over that database. It was only after the
Register of Copyrights, Marybeth Peters, stepped in and disclaimed
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copyright protection for works of government that the Library of Congress
dropped its assertions. The letter from Ms. Peters may be viewed at https://
public.resource.org/scribd/3319365.pdf
44.
During a break in the 2008 hearing before the Legislative Counsel
Committee of Oregon, I was approached by Senate President Peter
Courtney, who served seven terms in the Oregon House of Representatives
before serving five terms in the Oregon Senate. Senator Courtney asked me
why it was not enough that the State had a web site already for the Oregon
Revised Statutes. He seemed unimpressed when I explained some of the
technical flaws in the state-run site. I explained then that many of us that had
a dream of being able to post the state laws of all states and allow people to
compare them;if each state had special license agreements and restrictions,
that could never be possible. Senator Courtney’s eyes lit up. He told me that
when he goes to write a law, the first thing he does is looks at similar laws in
neighboring states, and that the service I described would be immensely
useful.
45.
By purchasing, scanning, and posting the O.C.G.A. volumes, we are
striving to provide a significantly more useful version of the Official Code
for people to read and share. Public Resource’s purpose in scanning and
posting the O.C.G.A. was to facilitate scholarship, criticism and analysis of
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the official Code, to inform the public about the laws that govern it, for
educational purposes and to encourage public engagement with the law.
46.
A significant transformation in the O.C.G.A. is performed during this
process, increasing the usability and accessibility of the Official Code. Each
volume that is scanned also has Optical Character Recognition (OCR),
which means it becomes significantly more accessible to people who are
visually impaired. 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. In the process of posting
the each volume, a version is created that is compatible with e-Book readers,
smart phones, and tablets. In addition, the user interface provided on the
Internet Archive allows users to search a volume, with “pins” being
displayed for each page that contains the search term, allowing a reader to
quickly look for key phrases in different locations. The user interface also
allows a user to “bookmark” a particular page and send that link via email or
social media, allowing other readers to quickly pull up that location. In
addition, Public Resource provides on our own servers all the volumes in
bulk, allowing a user to quickly access the entire code or a specific volume,
then copy and paste relevant sections into their own documents.
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