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

Filing 33

RESPONSE in Opposition re #30 MOTION for Partial Summary Judgment filed by Public.Resource.Org, Inc., Public.Resource.Org, Inc., Public.Resource.Org, Inc.. (Attachments: #1 Statement of Material Facts Defendant's Response to Plaintiff's Statement of Material Facts)(Parker, Sarah)

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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-RWS
)
)
)
)
)
)

DEFENDANT PUBLIC.RESOURCE.ORG, INC.’S
MEMORANDUM OF LAW IN OPPOSITION TO THE COMMISSION’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

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TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................................1
II. SUMMARY OF FACTS AND ARGUMENTS ....................................................................2
III. LEGAL ARGUMENTS ......................................................................................................4
A.

The Commission’s argument that the statutory text in the O.C.G.A. can be
treated differently from the annotations that make it the only official Code
of Georgia must fail. ............................................................................................4

B.

The O.C.G.A.’s selections and arrangements lack sufficient originality for
copyright to the extent they are mechanical, routine collections of facts or
simply follow the previous publisher’s format. .....................................................8

C.

To the extent any portion of the O.C.G.A. is copyrightable, Public
Resource’s scanning and posting the O.C.G.A. is a fair use. ............................... 12
i.

The purpose of Public Resource’s non-commercial use, to make
Georgia’s only official Code accessible to the public, favors fair
use. ......................................................................................................... 12

ii.

The nature of the copyrighted work favors fair use. ................................ 14

iii.

Public Resource used no more than necessary to serve the purpose
of making the official Code more available to citizens of Georgia
and the general public. ............................................................................ 14

iv.

The record contains no evidence of harm to the copyright holder or
the value of the O.C.G.A. ....................................................................... 16

IV. CONCLUSION ................................................................................................................. 21

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TABLE OF AUTHORITIES
Page(s)
CASES
Bellsouth Advert. & Publ’g Corp. v. Donnelly Info. Publ’g, Inc.,
999 F.2d 1436 (11th Cir. 1993) (en banc) ............................................................................ 10
Callaghan v. Myers,
128 U.S. 617 (1888) .......................................................................................................... 6, 7
Cambridge Univ. Press v. Patton,
769 F.3d 1232 (11th Cir. 2014)..................................................................................... passim
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ............................................................................................................ 16
Feist Publ’ns., Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) .............................................................................................................. 9
Golan v. Holder,
132 S. Ct. 873 (2012) .......................................................................................................... 12
Matthew Bender & Co., Inc. v. West Pub. Co.,
158 F.3d 674 (2d. Cir 1998) .............................................................................................. 8, 9
Wheaton v. Peters,
33 U.S. 591 (1834) ............................................................................................................ 5, 6

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I. INTRODUCTION
The Commission asks the Court to decide whether a state can own a
copyright in the original and creative annotations of its uncopyrightable state’s
laws. But that is not the issue the Court needs to decide to rule on the
Commission’s motion. The facts of this case are unique, and the critical issue is
much more narrow and fact-specific. This Court need only decide whether the
State of Georgia, having long ago decided that its only official Code should
include certain indexes, tables and other factual annotations, should be able to use
copyright law to enjoin anyone except its for-profit agent from distributing that
official Code. The answer must be no. First, the whole O.C.G.A. is one work that
is not subject to copyright because it is Georgia’s law. Second, even if the
mundane annotations enjoyed a thin copyright, given the undisputed facts and
circumstances in this specific case, Public Resource’s purchasing, scanning and
distributing the O.C.G.A. free to make it more available and more useful to inform
the public would constitute a fair use. Notably, even considering the submissions
of proposed Amicus Lexis/Nexis, three years after Public Resource first scanned
and posted the O.C.G.A. there is no evidence—only conjecture—that Public
Resource’s actions could materially impair the marketability of printed volumes of

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the O.C.G.A., CD-ROMs, or subscriptions to Lexis/Nexis’s online legal research
services.
II. SUMMARY OF FACTS AND ARGUMENTS
When Carl Malamud started Public.Resource.Org, Inc. (“Public Resource”),
he believed the Rule of Law would be strengthened by the wider availability on the
Internet of primary legal materials, the raw materials of our democracy. Malamud
Decl., Defendants Statement of Undisputed Material Facts (“DSUMF”) Ex. A at ¶¶
1, 14-15, 19. In order to promote public education and public safety, equal justice
for all, a better informed citizenry, more efficient markets, and the Rule of Law,
Public Resource has undertaken to make edicts of government, including the
O.C.G.A., available on a noncommercial basis. Id. at ¶ 45.
The State of Georgia enacts and promulgates its laws through its legislature.
Id. at ¶ 44. The Code Revision Commission assists the legislature in publishing
the laws it enacts in the O.C.G.A. Id. at ¶ 82. Most of the commissioners are
Georgia’s elected officials and the Commission’s work is supervised by elected
legislators. Ex. D, Ga. Code Ann., Foreword at ix-x. In 2006, the Commission
entered into an agreement for publication with Matthew Bender & Co., Inc.
(“Lexis/Nexis”). Ex. F at 1. The Commission, however, retained oversight and
ultimate control over publishing the O.C.G.A. Id. at 3. The agreement specifies

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the Commission’s and Lexis/Nexis’s respective roles in codifying, publishing, and
maintaining the O.C.G.A. It also specifies what the annotations Lexis/Nexis
prepares, under the Commission’s direct supervision, must contain. Id. at 2, 4-5.
In return, the State gives Lexis/Nexis exclusive rights to publish the printed
O.C.G.A., sell it on CD-ROMs, and provide paid subscribers access to it online.
Stip. at ¶¶ 84-85. This exclusivity produces the absurd result that Fastcase, which
partners with the State Bar of Georgia to provide its legal research service free to
the Bar’s 42,000 members, can only provide those lawyers with an “unofficial
compilation” of the Code of Georgia, with titles and catchlines written by Fastcase.
Declaration of Edward Walters (“Walters Decl.”), Ex. L at ¶¶ 8-13).
The publishing agreement also requires that Lexis/Nexis provide Georgia’s
statutes, stripped of their annotations, on a website that the public can access for
free, if they first agree to accept Lexis/Nexis’s terms of use. DSUMF Ex. F at 1112; Stip. at ¶ 73-75, 86-87; Dkt. 17-10; Dkt. 17-9. At least one citizen of Georgia
found the requirement to accept those terms of use distasteful, particularly a
provision requiring users to agree to jurisdiction in a New York court and
provisions prohibiting reuse (such as posting) of the laws on the site even by public
and non-profit users. Johnson Decl., DSUMF Ex. K at ¶ 10. The Lexis/Nexis

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website also suffers from technical limitations that make it difficult for users to
locate and read the laws of Georgia. Id. at ¶¶ 11-18.
In addition to these shortcomings, there are other good reasons why
Georgia’s citizens, and others wishing to know and understand Georgia’s laws,
might not find the Lexis/Nexis website as useful as the printed O.C.G.A. or another
website that provides functionality different from Lexis/Nexis’s website. While the
Lexis/Nexis free website displays the statutory text and numbering, without the
annotations the statutory text simply is not the one official Code of Georgia.

III. LEGAL ARGUMENTS
A.

The Commission’s argument that the statutory text in the
O.C.G.A. can be treated differently from the annotations that
make it the only official Code of Georgia must fail.

The Commission misconstrues Public Resource’s position as asserting that
annotations in the O.C.G.A., standing alone, are laws. Pl.’s Mem. at 16-18.
Instead, Public Resource argues that the O.C.G.A. is a single edict of government
with one author, Georgia’s General Assembly, acting through the Commission.
Deft’s Mem. at 8-11. This case is unusual because most official codes are not
annotated and most annotated codes are not official. The cases in which courts
have analyzed annotations and found them eligible for a copyright addressed

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annotations private companies created for themselves, not annotations that a State
commissioned and approved for its only official Code. As set out in Public
Resource’s opening brief and DSUMF, the State, particularly acting through its
general assembly, decided that the only official Code of Georgia should be
annotated. Deft’s Mem. at 3-4; DSUMF at ¶¶ 13-22, 24-29. To create that
annotated official Code, a committee recommended that the laborious editorial
process of publishing the O.C.G.A. should be outsourced to an appropriate
publisher of legal materials and the General Assembly agreed. Id. at ¶¶ 13-15.
This would be a different case if Lexis/Nexis decided to create and publish its own
unofficial, Code of Georgia, Annotated. The ship has sailed, however, and the
State cannot change the O.C.G.A’s nature to make its state-mandated annotations
“unofficial” by passing session laws saying they are not enacted as statutes. Public
Resource has never contended that legislative enactment of statutes is the sole
reason the O.C.G.A. is in the public domain as an edict of government. Nor does
Public Resource ask the Court to strike down as unconstitutional those session
laws, which Georgia passed in the two sessions between first asserting copyright
against Public Resource and filing this action. The law involved in Wheaton v.
Peters was judicial opinions, not statutes, and it is settled that such opinions are not
subject to copyright.
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The Commission’s reference to the reported decision of Wheaton v. Peters
(Pl.’s Mem. at 17) is misleading. In that case, the parties were private publishers
of Supreme Court reports. The remark that compilations “may be of great utility,
but they are not the law” was speaking of compilations of judicial opinions—
reporters. And, moreover, the language quoted in the Commission’s brief and
presented as the Supreme Court’s is actually in the argument of one of the
defendants’ attorneys, not the Court’s opinion, which begins at page 654. The
Supreme Court decided that Wheaton might have exclusive rights to publish his
reports under an act of Congress but remanded for a jury trial to determine whether
Wheaton had complied with requisite publication of his compliance with the
statute in a newspaper and delivery of a copy to the secretary of state. Wheaton v.
Peters, 33 U.S. 591, 667-68 (1834); see also Callaghan v. Myers, 128 U.S. 617,
648 (1888) (summarizing).
The Commission relies on Callaghan for its proposition that the official
nature of the O.C.G.A. does not “transform the annotations into the law to make
those annotations uncopyrightable.” Pl.’s Mem. at 17. This—and especially the
replacement of original language in the passage quoted with an ellipses—is
misleading. There is no official code of Illinois, annotated or otherwise. The
supplemental materials the Supreme Court found copyrightable by the Court
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Reporter, not by Illinois, were headnotes, syllabi of each opinion, lists of the
judges composing the court, names of counsel and sometimes their arguments and
an index, arranged alphabetically, consisting substantially of a reproduction of the
headnotes. Id., 128 U.S. at 633. The State of Illinois did not try what Georgia
does here—to commission annotations for the State’s only official publication of
the statutory law and then assert copyright to limit the public’s access to them.
“[T]here was no legislation of the state of Illinois which forbade the obtaining of a
copyright by [the reporter], or which directed that the proprietary right which
would exist in him should pass to the state of Illinois, or that the copyright should
be taken out for or in the name of the state, as the assignee of such proprietary
right.” Id. at 647. The Court therefore applied the “general proposition that the
reporter of a volume of law reports can obtain a copyright for it as an author, and
that such copyright will copy the parts of the book of which he is the author,
although he has no exclusive right in the judicial opinions published…” Id. at 649
(collecting authority).
Indeed, Public Resource does not argue that the annotations are transformed
from copyrightable to public domain works when they join the statutory text in the
O.C.G.A.’s volumes. Rather, the annotations are born in the public domain.
Lexis/Nexis’s editors’ numerous selections, coordination and arrangements carry
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out the General Assembly’s and the Commission’s deliberate instructions that
Georgia’s only official Code shall contain titles, catchlines, indexes, research
references and the other annotations at issue. Nor does Public Resource claim that
the word official, alone, can render any official document uncopyrightable. Here,
the undisputed facts, concerning how the O.C.G.A. came to contain the annotations
it does, support holding that the O.C.G.A. is an edict of government and therefore
not copyrightable.

B.

The O.C.G.A.’s selections and arrangements lack sufficient
originality for copyright to the extent they are mechanical, routine
collections of facts or simply follow the previous publisher’s format.
As discussed in Public Resource’s memorandum in support of its motion, (at

11-13), copyright does not protect expression in a compilation when the selection
or arrangement is conventional or dictated by practical considerations. Matthew
Bender & Co., Inc. v. West Pub. Co., 158 F.3d 674, 681-82 (2d. Cir 1998). Both
the Commission and Lexis/Nexis argue that because some annotated codes meet
the originality requirement for registration and copyright protection, the
O.C.G.A.’s annotations do too. Pl. Mem. at 13; Lexis/Nexis Mem. at 16. The
Court should see through this fallacy. A district court’s reasoning that “courts
have consistently held that telephone directories are copyrightable” instead of

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analyzing the selection and arrangement in the directory at issue was the error the
Supreme Court reversed in the Feist case. Feist Publ’ns., Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 344 (1991) (describing district court’s decision). Instead,
section 101 of the copyright act “instructs courts that, in determining whether a
fact-based work is an original work of authorship, they should focus on the manner
in which the collected facts have been selected, coordinated, and arranged.” Id. at
358.
The Commission and Lexis/Nexis unsurprisingly focus on the annotations
that are summaries of opinions. They point to differences between summaries of
the same case in the O.C.G.A. and West’s competing annotated code as evidence
that the summaries are creative. But this ignores the similarities that flow from the
court’s decision that some evidence supported the ALJ’s calculation of a
claimant’s weekly wage and award of workers’ compensation benefits based on the
claimant’s testimony. These are facts and, as one court put it, a publisher’s overall
choice of which procedural facts to include in a case report does not demonstrate
the requisite originality or creativity because “names of the parties, the deciding
court, and the dates of argument and decision are elementary items, and their
inclusion is a function of their importance, not West’s judgment.” Matthew
Bender, 158 F.3d at 683.
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More importantly, the Commission does not only assert copyright in the
summaries; it asserts copyright in numerous different parts of the O.C.G.A. such as
“catchlines of code sections; names of titles, Chapters, Articles, Parts, and
Subparts, history lines; editors’ notes; Code Commission notes; annotations;
research references; cross-references; indexes; and other such materials.” DSUMF
Ex. H. Catchlines are “descriptive headings …to denote the contents of a Code
section. DSUMF Ex. F, § 1.4. Names of titles, chapters, articles, parts, and
subparts are similar. Descriptive headings consisting of a few words have been
held to lack the requisite originality for copyright protection. Bellsouth Advert. &
Publ’g Corp. v. Donnelly Info. Publ’g, Inc., 999 F.2d 1436, 1442 (11th Cir. 1993)
(en banc). The Bellsouth court concluded that headings like “Attorneys” or
“Banks” represented such obvious labels for the matter appearing under them as to
lack the requisite originality for copyright and that any expressive act in choosing
headings for categories would merge with the idea of listing such entities as a class
of businesses in a directory. Id. at 1444. History lines show where a new Code
section appeared in prior official codes to trace that Code section back to its origin.
DSUMF Ex. E p. 104. The Code citations are facts and thus not protected
elements. Likewise, research references, cross-references and indexes, labor
intensive as they may be, are facts that are discovered by Lexis/Nexis’s editors, not
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creative expression. None of these parts of the O.C.G.A. are protectable by
copyright.
The Commission’s claim that Lexis/Nexis’s selection and arrangement in the
annotations is original should fail for another reason: the rules for selection and
arrangement were largely developed by the Commission and its staff as part of the
recodification process that began in 1978. DSUMF Ex. E at 102. At that time, the
Commission adopted the three unit numbering system combining title, chapter and
section numbers separated by a dash, which was already used in a number of other
state codes. Id. at 102 and n.4. At that time, the Commission and editors at the
Michie Company decided that case summary annotations would contain direct
quotations from the reported decisions, where possible, the full name of the case,
the full Georgia Reports, Georgia Appeals Reports, and Southeastern Reporter
citations and the year of decision. Id. at 104. Case annotations will generally be
arranged by subject matter, with cases involving the constitutionality of the statute
appearing first. Id. at 105-106. When Lexis/Nexis was awarded the current
contract— almost thirty years later—it agreed to “maintain the organization and
arrangement of the current Code in all supplements and replacement volumes
published under [the] Agreement.” DSUMF at ¶¶ 24, 26; Ex. F at § 1.4. The same
agreement spells out how to choose cases and compile case summary annotations
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and what research references, cross-references and indexes the O.C.G.A. must
include. DSUMF ¶¶ 27-29. Therefore, the overall selection and arrangement of
the annotations did not originate with Lexis/Nexis. For all these reasons, the
O.C.G.A.’s annotations are not sufficiently original or creative to be protected by
copyright.

C.

To the extent any portion of the O.C.G.A. is copyrightable, Public
Resource’s scanning and posting the O.C.G.A. is a fair use.
i.

The purpose of Public Resource’s non-commercial use, to make
Georgia’s only official Code accessible to the public, favors fair
use.

The Eleventh Circuit has stated that applying the fair use doctrine in a way
that promotes the dissemination of knowledge, not simply its creation, is consistent
with the goals of copyright. Cambridge Univ. Press v. Patton, 769 F.3d 1232,
1282 (11th Cir. 2014) (citing Golan v. Holder, 132 S. Ct. 873, 888 (2012)). The
Commission argues that Public Resource’s use of the O.C.G.A. was not
educational or transformative because it deliberately copied Georgia’s Code to
provoke this suit. Pl. Mem. at 19-20. Public Resource was not simply goading
Georgia and other states to make a point, but posted the O.C.G.A, the only official
Code of Georgia, for the benefit of citizens. Malamud Decl., ¶¶ 45-47. While its

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Proclamation of Promulgation has a lighthearted, even cheeky tone, Public
Resource tried every possible avenue to communicate with the Commission so it
might work together with Public Resource to exploit the Internet’s potential to
make the O.C.G.A. more readily useable by the public. For example, within days
of receiving the Commission’s cease-and-desist letter, Carl Malamud wrote back a
reasoned defense of Public Resource’s actions, concluding “I would be more than
happy to come to Georgia to discuss this matter with you.” Stip. Ex. D, Dkt. 17-4.
But the Commission has never once agreed to such a dialogue. Fastcase also tried
to obtain a license to make the O.C.G.A. available online to its bar association
subscribers, but the Commission would not talk with them either. Walters Decl.,
¶¶ 8-13.
The Commission and Lexis/Nexis defend Lexis/Nexis’s free statutory code
website and argue that the public has plenty of access to the statutory code and the
O.C.G.A. But whether the Lexis/Nexis free site is problematic is immaterial;
fundamentally, this case is about others’ rights to build other websites that speak
the official Code of Georgia. Even assuming Georgia’s websites and libraries
provide some public access to the statutory code and the O.C.G.A., Public
Resource’s posting the O.C.G.A. online still increases public access to the one

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official Code of Georgia, consistent with copyright’s goal to spread knowledge in
addition to providing incentives to create works.
.
ii.

The nature of the copyrighted work favors fair use.

As discussed in Public Resource’s memorandum in support of its own
motion for summary judgment, the O.C.G.A. is primarily a compilation of facts,
and therefore the scope of fair use is greater than it would be for a more creative
work. Deft’s Mem. at 18-19. The Commission asserts that the statutes are facts
but the annotations are opinions—without any explanation of why the Court should
consider them opinions. As discussed in section III B above, catchlines, history
lines, editor’s notes, research references, cross-references and indexes are nothing
but factual. Case annotations include summaries of opinions, but that does not
make them opinions. Additionally, the Court could properly consider that the
O.C.G.A. is the only official Code of Georgia as bearing on the second fair use
factor and weighing in favor of fair use.

iii.

Public Resource used no more than necessary to serve the
purpose of making the official Code more available to citizens of
Georgia and the general public.

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Public Resource purchased, scanned, posted and distributed the entire
O.C.G.A. because posting the statutory text would not serve the same purpose of
making the only official Code of Georgia more available and useful to the public.
Scholarship, analysis and other public engagement would be undermined without
free access to the complete official Code, which includes annotations by design.
Judges, lawyers and citizens treat the annotations as authoritative and rely on them
to interpret the Code. Therefore, Public Resource posts as much of the O.C.G.A.
as is necessary to fulfill its purpose.
The Commission offers no analysis of factor three beyond observing that
excessive verbatim copying weighs against fair use. It fails to acknowledge the
authorities explaining that verbatim copying of a work is sometimes necessary to
serve a fair use purpose. See Deft’s Mem. at 14-15; 19-20. Nor does it explain
why the Court should find Public Resource’s use of the whole O.C.G.A. excessive.
Amicus Lexis/Nexis tries a little harder but essentially argues that generally use of
an entire work may not constitute a fair use, so Public Resource’s nonprofit, public
interest use of the O.C.G.A., including its annotations, is not either. The Eleventh
Circuit, however, has expressly stated that a court abdicates its duty to analyze the
third factor for each instance of alleged infringement by applying a blanket rule or
benchmark. Cambridge at 769 F.3d at 1271-72. That court noted that “fair use
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analysis must be performed on a case-by-case/work-by-work basis.” Id. at 1272,
citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-85 (1994). The
Cambridge court invoked the Supreme Court’s instruction to avoid “hard
evidentiary presumption[s]” and “eschew a rigid, bright-line approach to fair use.”
Id. quoting Campbell. For the same reason, the district court properly considered
whether the individual instances of alleged infringement were excessive in relation
to the defendants’ pedagogical purpose. Id. at 1275. Here, Public Resource’s
educational and public interest purpose required using the whole O.C.G.A. and the
Court can find that this factor does not weigh against fair use.

iv.

The record contains no evidence of harm to the copyright holder
or the value of the O.C.G.A.

The Commission’s two-paragraph discussion of factor four is far too
conclusory to support a finding that this factor weighs against fair use. Instead of
describing the market for the O.C.G.A. and pointing to any scintilla of evidence of
likelihood of harm to it, the Commission and Lexis/Nexis essentially ask the Court
to apply a presumption of market harm from Public Resource’s scanning, posting
and distributing the O.C.G.A. But there is no precedent for such a presumption
and the law of fair use forbids it. The Commission cites and quotes the Cambridge
decision, but then essentially ignores what Cambridge teaches about how to
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identify the relevant market and analyze evidence relating to potential harm. That
case teaches that, in a sense, the copyright grant’s terms include a transaction cost:
an implied license to the public for fair use of the work. Cambridge, 769 F.3d at
1257. To determine the scope of fair use, courts should imagine a hypothetical
perfect market for the work in question and then ask how much of that market fair
users can capture without removing the copyright holder’s incentive to propagate
the work. Id. at 1258. Ideally, the copyright holder will sell the work to buyers
who can pay the market rate and tolerate secondary uses which do not undermine
the market for the work.
Here, the market for the O.C.G.A. is unusual, to say the least. The
Commission sets the price Lexis/Nexis can charge buyers and keeps it
low. DSUMF Ex. F at 19, 40; Howerton Decl., ¶ 6. The agreement treats
Lexis/Nexis’s online service and CD-ROM product differently than the printed,
bound volumes. DSUMF Ex. F at 23-25. West Publishing charges five times as
much for its competing Code of Georgia, annotated and presumably gets it—even
though it is an unofficial compilation and not State of Georgiaapproved. Howerton Decl. at ¶ 9. Lexis/Nexis must provide the Commission the
electronic database version of the O.C.G.A. DSUMF Ex. F at 12. Lexis/Nexis
cannot charge defined State Government Subscribers, who might otherwise
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purchase the printed, bound volumes, for subscriptions to the C.D.-ROM. Id. at
13. And it gets more complicated. State Government Subscribers can also copy,
print and sell, as books, the parts of the O.C.G.A. that relate to their own
department or agency. Id. The agreement describes the market for the CD-ROM
product as “the courts, government agencies, law libraries, law firms, members of
the Georgia Bar, legal assistants and other potential subscribers.” Id. at 37. The
Court can logically conclude, therefore, that neither the Commission nor
Lexis/Nexis considered Georgia citizens outside of the legal community an
important enough market to list in the agreement, much less such individuals who
reside outside of Georgia. When Fastcase sought to purchase a license to provide
the O.C.G.A. online as part of its online legal research service, however, it was
told no such license would be granted at any price. Walters Decl. at ¶ 8-13.
Lexis/Nexis’s printed O.C.G.A. also has qualities not achieved via online access or
thumb drive content. The agreement requires specified paper and binding
materials and sewing in a specified way “to produce a volume as strong as that
commonly known as ‘Library Editions.’” DSUMF Ex. F at 16. If these qualities
are important to the State, it follows that they are important to some potential
purchasers like courts, law libraries, and law firms and that these purchasers will
not consider scans or downloads of scans a competing substitute for the printed,
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bound O.C.G.A. Finally, Lexis/Nexis’s cost to publish O.C.G.A. rises every year,
making the printed publication “a struggle” every year. DSUMF Ex. I.
Lexis/Nexis blames the Commission’s refusal to let it raise the price of the printed
O.C.G.A. for its struggles. Id.
Because of the publishing agreement’s unusual nature, the State does not
receive revenue from royalties on the sale of printed, bound volumes of the
O.C.G.A. in the first place. Ex. O at 14. If any sales of books are lost, Lexis/Nexis
is deprived of revenues, but it is not the copyright holder. Assuming this were
true, it is not harm to the market for the O.C.G.A. It is a different kind of harm not
relevant to a fair use analysis.
Cambridge teaches that the scope of fair use in a given case is an evidentiary
question. 769 F.3d at 1258. Where the publishers offered no evidence showing
that they lost any book sales in or after 2009, the district court did not err in finding
that the defendants’ use did not affect the plaintiffs’ actual or potential sale of
books. Id. at 1276. The court also considered whether the defendants’ use
damaged the market for licenses for digital excerpts. Where a license was
available for digital excerpts, the district court properly weighed the fourth factor
against fair use. Where there was no evidence that a license for digital use of a
given work was available in the market, however, the district court properly
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weighed the fourth factor in favor of fair use. Id. at 1279. Although the alleged
infringer has the overall burden to show lack of substantial damages to the market,
the court reasoned that the publishers could reasonably be expected to have
evidence of a market for digital licenses. Id. It was reasonable, therefore, to place
the burden of going forward with such evidence on them and, where no such
evidence was offered, to presume that no market for digital permissions for a given
work existed. Here, neither the Commission nor Lexis/Nexis can point to any
evidence of lost sales—print, online subscription, or CD-ROM—in the three years
since Public Resource scanned, posted and distributed the O.C.G.A. Nor can it
show that Public Resource could have obtained a license to use the O.C.G.A. on its
website as it does. The Commission rejected Fastcase’s offer to do just that.
Importantly, the agreement between the Commission and Lexis/Nexis requires
Lexis to track use of the statutory code on its free site and report “the effect, if any,
on subscriptions to the Code in print and on CD-ROM.” DSUMF Ex. F at 12. But
neither the Commission nor Lexis/Nexis has not offered any such report.
Finally, as set forth in Public Resource’s memorandum in support of its
motion for summary judgment (at 22-24), in many cases a citizen’s ability to
consult the O.C.G.A. on its website for free would not displace a purchase from
Lexis/Nexis. As the Commission observes, people can read the entire O.C.G.A.
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for free if they have access to a state or county library, state university or county
law enforcement office within the State of Georgia. The Commission and
Lexis/Nexis do not contend that a citizen’s use at those Georgia facilities supplants
the normal market. Just like a library, Public Resource purchased the O.C.G.A.
sets that it scanned and posted. If exactly what Public Resource did was
widespread, Lexis/Nexis would sell more books, not fewer. For all these reasons,
the Court can properly find that Public Resource’s use has had no effect on actual
or potential sales of the O.C.G.A. Therefore, the fourth factor is neutral or favors
fair use.
IV. CONCLUSION
For the reasons set forth above, the Court should grant summary judgment in
favor of Public Resource on its counterclaim and both the Commission’s claims.

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Respectfully submitted this 7th day of June, 2016.

By: /s/ Elizabeth H. Rader
Jason D. Rosenberg
Georgia Bar No. 510855
[e-mail]
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]
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-RWS
)
)
)
)
)

Defendant.
CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to L.R. 5.1C and 7.1D of the Northern
District of Georgia, the foregoing Defendant Public.Resource.Org, Inc.’s
Memorandum of Law In Opposition to the Commission’s Motion for Partial
Summary Judgment 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 14point Times New Roman font.

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

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Case 1:15-cv-02594-RWS Document 33 Filed 06/07/16 Page 27 of 27

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-RWS
)
)
)
)
)

Defendant.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Defendant Public.Resource.Org, Inc.’s
Memorandum of Law In Opposition to the Commission’s Motion for Partial
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 P. LaFantano
Georgia Bar No. 734610

-1LEGAL02/36379790v4