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

Filing 30

MOTION for Partial Summary Judgment with Brief In Support by Code Revision Commission, State of Georgia. (Attachments: #1 Brief in support, #2 Statement of Undisputed Material Facts, #3 Exhibit 1, #4 Exhibit 2, #5 Exhibit 3, #6 Exhibit 4)(Pavento, Lisa) --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.--

EXHIBIT 4

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

DEFENDANT PUBLIC.RESOURCE.ORG, INC.’S RESPONSES AND
OBJECTIONS TO PLAINTIFF CODE REVISION COMMISSION’S
FIRST SET OF INTERROGATORIES
Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure (the
“Federal Rules”), Defendant Public.Resource.Org, Inc. (“Public.Resource”) hereby
responds to the interrogatories contained in Plaintiff Code Revision Commission’s
(“Commission” or “Plaintiff”) First Set of Interrogatories to Public.Resource as
follows:
GENERAL OBJECTIONS

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1.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any interrogatory, definition, or instruction contained therein attempts to
impose on Public.Resource obligations beyond those required or authorized
by the Federal Rules.

2.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any interrogatory, definition, or instruction contained therein, seeks, or
could be construed to seek, information or documents that are within the scope
of the attorney-client privilege, the work product doctrine, the commoninterest privilege, or any other applicable privilege, protection, or immunity
from discovery as recognized by any applicable law.

Any inadvertent

disclosure of any such protected information is not to be deemed a waiver,
and Public.Resource expressly reserves the right to object to the introduction
at trial or other use of any such protected information.
3.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any interrogatory could be construed to seek the disclosure of information
or the production of documents covered by Rules 26(b)(3) and 26(b)(4) of the
Federal Rules without the requisite showings.

4.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any interrogatory is vague, ambiguous, overly broad, unduly burdensome,
or seeks the disclosure of information that is not relevant to any claim or
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defense in this action, or is not reasonably likely to lead to the discovery of
admissible evidence that is relevant to any claim or defense.
5.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any discovery sought by an interrogatory is duplicative and cumulative
of the discovery sought by any other interrogatory.

6.

Public.Resource objects to Plaintiff’s First Set of Interrogatories to the extent
that any interrogatory seeks information not within Public.Resource’s custody
or control.

7.

Public.Resource’s responses, statements, identification, or documents
referenced herein, are not intended to waive or prejudice any objections
Public.Resource may assert now or in the future, including, without limitation,
objections to the admissibility of any response or document, or category of
responses or documents, at trial or otherwise.

8.

Public.Resource’s responses to Plaintiff’s First Set of Interrogatories are
based on discovery available after reasonably inquiry.

Public.Resource

reserves the right to amend, revise, or supplement its responses pursuant to
the Federal Rules as additional responsive information becomes available.
Public.Resource makes these responses without prejudice to its right to rely
upon any subsequently discovered information.

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9.

Public.Resource repeats and incorporates the above General Objections into its
responses to each of the individual interrogatories as if fully contained therein,
whether or not expressly incorporated by reference. Without waiving the
above General Objections, Public.Resource

object and respond to the

individually numbered interrogatories as follows:
SPECIFIC OBJECTIONS AND RESPONSES
INTERROGATORY NO. 1: Explain the legal and factual bases of
Public.Resource’s Second, Third, Fourth, Fifth, Sixth and Eighth Affirmative
Defenses as set forth in Public.Resource’s Answer to the Amended Complaint and
Counterclaim, including an identification of all facts, evidence, documents and
witnesses upon which you intend to rely.
ANSWER TO INTERROGATORY NO. 1:
Public.Resource objects to this Interrogatory as a premature, to the extent it
seeks the complete factual and legal basis for Public.Resource’s claims prior to the
close of discovery. See In re Domestic Air Transp. Antitrust Litig., No. 1:90-CV2485-MHS, 1992 WL 120351, at *1-2 (N.D. Ga. Apr. 8, 1992) (permitting plaintiffs
to delay responses to contention interrogatories until after “meaningful discovery
has been completed”); McCarthy v. Paine Webber Group, Inc., 168 F.R.D. 448, 450

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(D. Conn. 1996). Subject to and without waiving the foregoing general and specific
objections, Public.Resource responds as follows:
(a) For its Second Affirmative Defense, Public.Resource relies on the legal
argument that the annotations and other additions to the statutory text
created by LexisNexis are not copyrightable because they lack sufficient
originality to constitute a copyrightable work and because the annotations
and other additions constitute the official law of Georgia and therefore are
not copyrightable. The texts that make up the law reside in the public
domain. 17 U.S.C. § 102(b) prohibits copyright protection for “any idea,
procedure, process, system, method of operation, concept, principle or
discovery. When a state promulgates an official code, the writings that
make up the code become facts under copyright law. The only way to
express codified laws is to use the language of the code itself.
(b) Public.Resource asserts its Third Affirmative Defense to the extent that
the Code Revision Commission cannot produce the proper documentation
establishing ownership of the asserted copyrights in the O.C.G.A.
annotations and additional materials. The annotations and other additions
are offered by the State together with the statutory text as the official
version of the Georgia statutes and as a product of the Georgia Assembly,
termed the O.C.G.A. The State cannot own copyright in the law of Georgia
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as embodied in the O.C.G.A., the official statutory promulgation of the
Georgia Assembly;
(c) Public.Resource asserts its Fourth Affirmative Defense based on the legal
theory of fair use. The purpose and character of Public.Resource’s use of
the O.C.G.A. favors fair use. Public.Resource’s mission is to help citizens
know the law. Public.Resource’s copying and posting is non-commercial.
The copying and posting is sufficiently transformative because
Public.Resource copies the annotations and other additional materials to
increase public access to the law and encourage scholarship, analysis and
other public engagement with the law. Expanding access to the law is
transformative. Public policy favors promoting the public’s access to the
law. The nature of the O.C.G.A. also favors fair use because all the code’s
components are facts and the law of fair use recognizes a greater need to
disseminate factual works than works of fiction. Public.Resource uses no
more of the O.C.G.A. than is necessary to accomplish its purpose.
Copying entire works is fair use when it reasonably fulfills the user’s
purpose.

Public.Resource’s copying and posting of the O.C.G.A.

annotations and other additional materials also does not harm the market
for Plaintiff’s works, as those accessing the copies of the O.C.G.A. online
at https://law.resource.org and www.archive.org are not true prospective
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purchasers of the O.C.G.A., which retails at $378 for a hard copy at
www.lexis.com;
(d) Public.Resource asserts its Fifth Affirmative Defense to the extent that the
Code Revision Commission cannot produce the proper documentation
establishing registration of the asserted copyrights in the O.C.G.A.
annotations and additional materials.
Public.Resource hereby withdraws its sixth and eighth affirmative defenses.
Public.Resource reserves the right to supplement these responses as its investigation
and discovery continues.
INTERROGATORY NO. 2: Describe the factual basis and identify all websites
onto which copies of O.C.G.A. volumes and supplements were or are posted by
Public.Resource including (i) the date of said posting; (ii) an identification of the
number and type of downloads and/or accesses of said copied volumes and
supplements from said websites from the date of said to posting [sic] to the present;
and (iii) Public.Resource’s control over or ability to remove said posting.
ANSWER TO INTERROGATORY NO. 2:
Public.Resource objects to this Interrogatory as vague and ambiguous to the
extent it asks Public.Resource to “describe the factual basis” of “websites onto
which copies of O.C.G.A. volumes and supplements” were posted by
Public.Resource.
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Subject to and without waiving the foregoing general and specific objections,
pursuant to Federal Rule 33(d), Public.Resource produces herewith documents
identified by the Bates Range PRO-000603 to PRO-000621 and PRO-000632 to
PRO-000635 sufficient to answer Interrogatory No. 2. Public.Resource responds
that it has the ability to remove the postings listed in the documents identified above.
Public.Resource reserves the right to supplement these responses as its investigation
and discovery continues.
INTERROGATORY NO. 3: Describe the factual basis and identify all documents
and things reflecting or relating to Public.Resource’s knowledge of copies of
O.C.G.A. volumes and supplements posted on a website by a Third Party including
(i) identification of the website and Third Party; (ii) Public.Resource’s knowledge
of its ability to remove said posting; and (iii) Public.Resource’s knowledge of the
number and type (e.g., a PDF access, an .xml access) of downloads or accesses of
said copied volumes and supplements from said websites.
ANSWER TO INTERROGATORY NO. 3:
Public.Resource objects to this Interrogatory as vague and ambiguous to the
extent it asks Public.Resource to “describe the factual basis” of Public.Resource’s
“knowledge of copies of O.C.G.A. volumes and supplements posted on a website
by a Third Party.” Public.Resource objects to this Interrogatory as overly broad and
unduly burdensome in that it asks Public.Resource to identify “all documents and
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things” “reflecting or relating to” Public.Resource’s “knowledge of copies of
O.C.G.A. volumes and supplements posted on a website by a Third Party.”
Public.Resource objects to this Interrogatory as seeking information not within
Public.Resource’s possession, custody, or control, to the extent the Interrogatory
seeks information regarding third parties.
Subject to and without waiving the foregoing general and specific objections,
Public.Resource responds that it is unaware of any Third Party Website, other than
that operated by Matthew Bender Co/LexisNexis., on which copies of O.C.G.A.
volumes and supplements are posted. Public.Resource is unaware of the number
and types of volumes/supplements of the O.C.G.A. available thereon.
Public.Resource does not have the ability to remove postings from the Matthew
Bender Co./LexisNexis website. Public.Resource reserves the right to supplement
these responses as its investigation and discovery continues.
INTERROGATORY NO. 4:

Describe the factual basis and identify all

documents and things reflecting or relating to why Public.Resource purchased the
O.C.G.A. in paper or a physical book format instead of a compact disc format.
ANSWER TO INTERROGATORY NO. 4:
Public.Resource objects to this Interrogatory as overly broad and unduly
burdensome in that it asks Public.Resource to identify “all documents and things”

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“reflecting or relating to” why Public.Resource purchased the O.C.G.A. in physical
book format instead of a compact disc format.
Subject to and without waiving the foregoing general and specific objections,
Public.Resource responds that it purchased the paper or physical book format of the
O.C.G.A. due to the printed book’s superior readability, ease of scanning, and
absence of the terms of use that accompany the compact disc format.
Public.Resource responds that it purchased a copy of the O.C.G.A. in compact disc
format on October 7, 2015.

Pursuant to Federal Rule 33(d), Public.Resource

produces herewith documents identified by the Bates Range PRO-000064 to PRO000080 as sufficient to identify why Public.Resource originally purchased the
O.C.G.A. in a paper or a physical book format. Public.Resource reserves the right
to supplement these responses as its investigation and discovery continues.
INTERROGATORY NO. 5: Describe the factual basis and identify all documents
and things reflecting or relating to Public.Resource’s contact with a state or
territory regarding that state or territory’s publication or dissemination of its
statutes.
ANSWER TO INTERROGATORY NO. 5:
Public.Resource objects to this Interrogatory as overly broad and unduly
burdensome in that it asks Public.Resource to identify “all documents and things”

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“reflecting or relating to” Public.Resource’s contact with a state or territory
regarding that state or territory’s publication or dissemination of its statutes.
Subject to and without waiving the foregoing general and specific objections,
pursuant to Federal Rule 33(d), Public.Resource identifies documents with the Bates
Range PRO-000636 to PRO-000901 produced herewith as sufficient to identify
“Public.Resource’s contact with a state or territory regarding that state or territory’s
publication or dissemination of its statutes” in response Interrogatory No. 5.
Public.Resource reserves the right to supplement these responses as its investigation
and discovery continues.
INTERROGATORY NO. 6: Identify each Person, including any Third Party, with
knowledge of any facts or assertions set forth in response to any Interrogatory in
Commission’s First Set of Interrogatories.
ANSWER TO INTERROGATORY NO. 6:
Subject to and without waiving the foregoing general objections,
Public.Resource

identifies

Carl

Malamud,

President

and

Founder

of

Public.Resource, as well as Tim Stanley and Ed Walters, current board members of
Public.Resource.
Respectfully submitted,

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By:

/s/ Sarah P. LaFantano
Sarah P. LaFantano
Georgia Bar No. 734610
[e-mail]
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.,
Defendant.

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

VERIFICATION
I, CARL MALAMUD, am President and Founder of Public.Resource.Org,
Inc. I have read Defendant Public.Resource.Org, Inc.’s Responses and
Objections to Plaintiff Code Revision Commission’s First Set of Interrogatories,
and know the contents thereof. The responses are true and correct to the best of
my information, knowledge, and belief formed after a reasonable inquiry.
Executed on the 16th day of February 2016.

/s/ Carl Malamud
CARL MALAMUD

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing “Defendant Public.Resource.Org, Inc.’s
Responses and Objections to Plaintiff Code Revision Commission’s First Set of
Interrogatories” were served on Plaintiff by sending a copy of same through UPS
Overnight to Plaintiff’s counsel at the following address and a courtesy copy via email to:
Anthony B. Askew
[e-mail]
Lisa C. Pavento
[e-mail]
Warren Thomas
[e-mail]
Meunier Carlin & Curfman LLC
999 Peachtree Street NE, Suite 1300
Atlanta, Georgia 30309

This 16th day of February, 2016,
By:

/s/ Sarah P. LaFantano______
Sarah P. LaFantano
Georgia Bar No. 734610
[e-mail]
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
Telephone [phone]
Fax [phone]

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