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

Filing 34

RESPONSE in Opposition re #29 MOTION for Summary Judgment filed by Code Revision Commission, State of Georgia. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Plaintiff's Responses to Defendant's Statement of Undisputed Material Facts, #5 Plaintiff's Supplemental Statement of Additional Undisputed Material Facts in Support of Its Response to Defendant's Motion for Summary Judgment)(Pavento, Lisa)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CODE REVISION COMMISSION on
behalf of and for the benefit of THE
GENERAL ASSEMBLY OF
GEORGIA, and THE STATE OF
GEORGIA,
Plaintiff,

CIVIL ACTION NO.

v.

1:15-CV-02594-MHC

PUBLIC.RESOURCE.ORG, INC.
Defendant.

PLAINTIFF’S RESPONSES TO DEFENDANT’S STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 56.1(B)(2), Plaintiff and Counterclaim-Defendant the
Code Revision Commission, on behalf of and for the benefit of the General
Assembly of Georgia, and the State of Georgia (“Commission”), responds
Defendant’s Statement of Undisputed Material Facts as follows:
INTRODUCTION
PR includes many alleged facts in its Statement Of Undisputed Material
Facts that are not referenced in its Memorandum Of Law In Support Of Its Motion
For Summary Judgment (Dkt. 29-02). Alleged facts upon which PR does not rely

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in its arguments should not be considered material, and Commission objects
accordingly below. Any admissions made by Commission below are for the sole
purpose of responding to Defendant’s summary judgment motion.
COMMISSION’S RESPONSES AND OBJECTIONS
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.
RESPONSE: Admitted
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
those statutes (including the legislative hearings that led to those statues), and
federal regulations (including the underlying notices and comments leading to
those regulations). Malamud Decl., Ex. A at ¶¶ 15, 19.
RESPONSE: Commission admits that Mr. Malamud founded Public
Resource in 2007. Commission objects to the fact alleged in the remainder of
paragraph two as not material. PR does not rely on or even mention this alleged
fact in its summary judgment arguments. To the extent that the Mr. Malamud’s
opinion testimony is offered as a lay witness under Fed. R. Evid. 701, Commission

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objects that the cited paragraphs of Mr. Malamud’s Declaration do not support the
assertions of fact in the remainder of paragraph two. Otherwise, Commission
objects under Fed. R. Evid. 702 because these statements are supported by opinion
testimony of Mr. Malamud on a subject for which he has not been qualified as an
expert. Further, Commission objects under Fed. R. Civ. P. 26(a)(2) and 37(c)(1)
because Defendant did not timely disclose Mr. Malamud as an expert on whom it
would rely in accordance with the Court’s scheduling order, Dkt. 13. Subject to
these objections, Commission admits the remainder of paragraph two.
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.
RESPONSE: Commission admits paragraph three represents Mr.
Malamud’s opinion as stated. If PR submits the alleged facts in paragraph three as
expert testimony, Commission objects under Fed. R. Evid. 702 because these
statements are supported by opinion testimony of Mr. Malamud on a subject for
which he has not been qualified as an expert. Further, Commission objects under
Fed. R. Civ. P. 26(a)(2) and 37(c)(1) because Defendant did not timely disclose
Mr. Malamud as an expert on whom it would rely in accordance with the Court’s
scheduling order, Dkt. 13. Commission objects to the fact alleged in paragraph

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three as not material. PR does not rely on or even mention this alleged fact in its
summary judgment arguments.
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.
RESPONSE: Commission objects to the fact alleged in paragraph four as
not material. PR does not rely on or even mention this alleged fact in its summary
judgment arguments. To the extent that Mr. Malamud’s or Ms. Noveck’s opinion
testimony is offered as a lay witness under Fed. R. Evid. 701, Commission objects
that the cited paragraphs of Mr. Malamud’s and Ms. Noveck’s Declarations do not
support the assertions of fact in paragraph four. If PR submits the alleged facts in
paragraph four as expert testimony, Commission objects under Fed. R. Evid. 702
because these statements are supported by opinion testimony of either Mr.
Malamud or Ms. Noveck on a subject for which he or she has not been qualified as
an expert. Further, Commission objects under Fed. R. Civ. P. 26(a)(2) and 37(c)(1)
because Defendant did not timely disclose Mr. Malamud or Ms. Noveck as an
expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13. Subject to these objections, Commission admits paragraph four.

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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.
RESPONSE: Commission admits that 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. Commission objects to the fact alleged in
paragraph five as not material. PR does not rely on or even mention this alleged
fact in its summary judgment arguments. To the extent that the Mr. Malamud’s
opinion testimony regarding a “shortcoming” is offered as a lay witness under Fed.
R. Evid. 701, Commission objects that the cited paragraphs of Mr. Malamud’s
Declaration do not support the assertions of fact regarding the “shortcoming.”
Otherwise, Commission objects under Fed. R. Evid. 702 because this statement is
supported by opinion testimony of Mr. Malamud on a subject for which he has not
been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr. Malamud as
an expert on whom it would rely in accordance with the Court’s scheduling order,

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Dkt. 13. Subject to these objections, Commission admits the alleged fact of a
“shortcoming.”
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
Washington, D.C. and Chicago, city officials also were involved in the process.
RESPONSE: Commission admits the last sentence of paragraph six. To the
extent that the Mr. Malamud’s opinion testimony regarding the first sentence is
offered as a lay witness under Fed. R. Evid. 701, Commission objects that the cited
paragraphs of Mr. Malamud’s Declaration do not support the assertions of fact.
Otherwise, Commission objects under Fed. R. Evid. 702 because this statement is
supported by opinion testimony of Mr. Malamud on a subject for which he has not
been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr. Malamud as
an expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13. Commission denies the first sentence of paragraph six. Commission
further objects to the fact alleged in paragraph six as not material. PR does not rely
on or even mention this alleged fact in its summary judgment arguments. Id. at ¶¶

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31-41, 44. Subject to these objections, Commission admits the first sentence of this
paragraph.
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.
RESPONSE: Commission objects to the fact alleged in paragraph 7 as not
material. PR does not rely on or even mention this alleged fact in its summary
judgment arguments. To the extent that Ms. Noveck’s opinion testimony is offered
as a lay witness under Fed. R. Evid. 701, Commission objects that the cited
paragraphs of Ms. Noveck’s Declaration does not support the assertions of fact in
paragraph seven. If PR submits the alleged facts in paragraph 7 as expert
testimony, Commission objects under Fed. R. Evid. 702 because these statements
are supported by opinion testimony of Ms. Noveck on a subject for which she has
not been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Ms. Noveck as an
expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13. Subject to these objections, Commission admits paragraph seven.
8.

The State of Georgia enacts and promulgates its laws through its

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

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RESPONSE: Admitted.
9.

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

provide for the publication of the laws passed at each session.”
RESPONSE: Admitted. Commission objects to the fact alleged in
paragraph nine as not material. PR does not rely on or even mention this alleged
fact in its summary judgment arguments.
10.

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

Act to amend Article…Chapter…Titles 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.
RESPONSE: Commission admits that it is typical for bills introduced in
the General Assembly to begin, “an Act to amend Article…Chapter…Titles of the
Official Code of Georgia Annotated.” Commission denies the statement “as
required by Georgia’s Constitution, Ga. Const., Art. 3, Section 5, ¶ 4” because that
paragraph of the Georgia Constitution does not require that bills contain the quoted
wording “an Act to amend Article…Chapter…Tiles of the Official Code of
Georgia Annotated.” Paragraph four instead states: “No law or section of the Code
shall be amended or repealed by mere reference to its title or to the number of the
section of the Code; but the amending or repealing Act shall distinctly describe the

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law or Code section to be amended or repealed as well as the alteration to be
made.” Ga. Const., Art. 3, Section 5, ¶ 4. Commission objects to the fact alleged in
this paragraph as not material. PR does not rely on or even mention this alleged
fact in its summary judgment arguments.
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.
RESPONSE: Admitted. Commission objects to the fact alleged in
paragraph eleven as not material. PR does not rely on or even mention this alleged
fact in its summary judgment arguments.
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.
RESPONSE: Admitted.
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.
RESPONSE: Commission admits paragraph 13 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia

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Code Annotated. The citation should instead be to the O.C.G.A. Commission
further objects to the fact alleged in this paragraph as not material. PR does not
rely on or even mention this alleged fact in its summary judgment arguments.
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.
RESPONSE: Commission admits paragraph 14 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia
Code Annotated. The citation should instead be to the O.C.G.A. Commission
further objects to the fact alleged in this paragraph as not material. PR does not
rely on or even mention this alleged fact in its summary judgment arguments.
15.

Upon the Study Committee’s recommendation, the General Assembly

created the Commission to select a publishing firm and “resolve the myriad of
details connect with the code revision project.” Id. at ix.-x.
RESPONSE: Commission admits paragraph 15 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia

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Code Annotated. The citation should instead be to the O.C.G.A. Commission
further objects to the fact alleged in this paragraph as not material. PR does not
rely on or even mention this alleged fact in its summary judgment arguments.
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
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.
RESPONSE: Commission admits paragraph 16 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia
Code Annotated. The citation should instead be to the O.C.G.A.
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.
RESPONSE: Commission admits paragraph 17 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia
Code Annotated. The citation should instead be to the O.C.G.A. Commission
further objects to the fact alleged in this paragraph as not material. PR does not
rely on or even mention this alleged fact in its summary judgment arguments.

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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.
RESPONSE: Commission admits that the Commission contracted with
Michie and itself developed the uniform numbering system and rules of style used
in the new (1981) Code and adopted an arrangement into 53 Code titles.
Commission denies the term “despite” since it is not included in the OCGA
Foreward. OCGA, Foreword, Def’s Ex. D at xi. Commission further objects to the
fact alleged in paragraph 18 as not material. PR does not rely on or even mention
this alleged fact in its summary judgment arguments.
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.
RESPONSE: Commission objects in accordance with Local Rule
56.1(B)(2)(a)(2)(iii) because the cited document does not support that the
Commission has “regularly” asserted copyright in the stated materials.
Commission further objects to this alleged fact as not material. PR does not rely on

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or even mention this alleged fact in its summary judgment arguments. Subject to
these objections, Commission admits paragraph 23.
24.

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

numbering used by the previous publisher. Publication Agreement, Ex. F at 3.
RESPONSE: Commission admits paragraph 24 since the Agreement
requires Lexis/Nexis to maintain the State’s prior general organization and
arrangement of the OCGA. Publication Agreement, Def’s Ex. F at 3.Commission
objects to the fact alleged in paragraph twenty four as not material. PR does not
rely on or even mention this alleged fact in its summary judgment arguments.
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.
RESPONSE: Admitted.
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.

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RESPONSE: Admitted.
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 statue, whether such decisions
favor plaintiffs, defendants, or the prosecution.” Id. at 3.
RESPONSE: Commission admits that the Publication Agreement contains
the quoted statement in paragraph 27, but such statement does not establish
Defendant’s alleged fact: “Lexis/Nexis does not choose which cases to summarize
in the Code’s annotations.” Commission denies that Lexis/Nexis does not chose
which cases to summarize. Declaration of Anders P. Ganten, [Dkt. 30-05] ¶ 5.
Further, the Publication Agreement’s next sentence is “Additional annotations to
those required by the Paragraph may be included where determined useful as
determined or approved by the Commission.”
28.

The Agreement similarly requires that the Annotations include

research references and legislative history.” Id. at 4-5.
RESPONSE: Commission admits that the Agreement requires that research
references and legislative history are included in the OCGA, but the Agreement

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also indicates that the form arrangement and content of the research references and
form of the history lines can be chosen by Lexis/Nexis subject to the approval of
the Commission. Publication Agreement, Def’s Ex. F at 5.
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 78-79, 99-109.
RESPONSE: Commission admits that the Publication Manual provides nine
pages of instruction on proper formulation of amendment notes and ten pages of
instruction on editor’s notes, but since the substance of each amendment note and
editor’s note is different, the content of each note is not dictated by the Manual.
Def’s Ex. G at 78-79, 99-109. Commission objects to the fact alleged in paragraph
twenty nine as not material. PR does not rely on or even mention this alleged fact
in its summary judgment arguments.
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.
RESPONSE: Admitted.

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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.
RESPONSE: Admitted.
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.
RESPONSE: Commission admits that the Publication Agreement requires
that “The Publisher shall track usage of the Code on its Internet site, and after each
year of publication, the Publisher shall provide usage reports to the Commission
with usage and the effect, if any, on subscriptions to the Code in print and on CDROM.” Publication Agreement, Ex. F at 12. Commission admits that Def’s Exhibit
H is such a usage report, which reflects the effect of Lexis/Nexis providing the
Unnanotated Code on the internet.
33.

The Agreement requires Lexis/Nexis to provide appropriate copyright

notice on both the free public website for the unannotated Code and the online
O.C.G.A. available as part of the Lexis/Nexis for-profit online services and to

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notify visitors that any reproduction of the O.C.G.A. other than the statutory text
and numbering is prohibited. Id. at 12.
RESPONSE: Commission admits that the Agreement requires what
paragraph 33 states and after the term “is prohibited,” includes “unless permission
has been granted by the State.” Publication Agreement, Def’s Ex. F at 12.
Commission objects to the fact alleged in this paragraph as not material. PR does
not rely on or even mention this alleged fact in its summary judgment arguments.
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.
RESPONSE: Admitted. Commission objects to the fact alleged in this
paragraph as not material. PR does not rely on or even mention this alleged fact in
its summary judgment arguments.
35.

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

contracted as a fee for service arrangement.” Id.
RESPONSE: Commission admits that the statement in paragraph 35 was
made by Anders Ganten. Commission objects to the fact alleged in this paragraph
as not material. PR does not rely on or even mention this alleged fact in its
summary judgment arguments.

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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.
RESPONSE: Admitted.
37.

The Commission, however, only receives royalties from the licensing

fee for the CD-ROM and online versions of the O.C.G.A. Pl.’s Resp. to D.’s
Interrogatories, Ex. O at 14.
RESPONSE: Admitted.
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.
RESPONSE: Admitted.
39.

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

“the print publication is a struggle each year.”
RESPONSE: Commission admits that Anders Ganten made the statement in
paragraph 39. Commission objects to the fact alleged in this paragraph as not
material. PR does not rely on or even mention this alleged fact in its summary
judgment arguments.
40.

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

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

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RESPONSE: Admitted.
41.

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

the O.C.G.A. Id. at xvii
RESPONSE: Denied. The User’s Guide states on the cited page: “The
Official Code of Georgia Annotated may be cited as ‘O.C.G.A.’ See Code Section
1-1-8 as to citation of the Official Code of Georgia Annotated.” User’s Guide,
Def’s Ex. N. at xvii. Commission objects to the fact alleged in this paragraph as
not material.
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.
RESPONSE: Commission admits that the User’s Guide explains that some
annotations in the OCGA are indexes, tables and research references. Commission
denies Defendant’s characterization that the indexes, tables and research references
“advise the reader of other materials relevant to understanding the nuances and
interpretations of the statutory text itself.” Commission admits that the User’s
Guide states that the research references “aid in legal research” and that conversion
tables are included in Volume 41 (an OCGA volume not at issue in this case) to

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assist the user in converting citations between the OCGA and prior Code
publications. Commission objects to the fact alleged in this paragraph as not
material.
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.
RESPONSE: Commission admits paragraph 43 in substance but objects to
Defendant’s citation to Ga. Code. Ann., which is an indicator of West’s Georgia
Code Annotated. The citation should instead be to the O.C.G.A. Commission
objects to the fact alleged in this paragraph as not material.
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. 17-3.
RESPONSE: Admitted. Commission objects to the fact alleged in this
paragraph as not material.

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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 to the O.C.G.A. for the annotations. Commission Minutes, Ex. I at 2.
RESPONSE: Admitted. Commission objects to the fact alleged in this
paragraph as not material.
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 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.
RESPONSE: Commission admits paragraph 46 is one of the judicial
summary annotations for OCGA § 50-2-1 for the case Dep’t of Natural Resources
v. Joyner, 241 Ga. 390 (1978). Commission objects to Defendant’s citation to Ga.
Code. Ann., which is an indicator of West’s Georgia Code Annotated.
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

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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).
RESPONSE: Admitted.
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 named in the petition and served other than by the
advertisement “to whom it may concern,” and a land registration
judgement, if granted, would not be binding upon an adjoining
landowner who was not named and served.
Ga. Code Ann. § 50-2-1.
RESPONSE: Commission admits paragraph 48 is the judicial summary
annotation for OCGA § 50-2-1. Commission objects to Defendant’s citation to Ga.
Code. Ann., which is an indicator of West’s Georgia Code Annotated.
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 States
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 be
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
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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 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.
RESPONSE: Commission admits that paragraph 50 provides one of the
judicial summary annotations for OCGA § 50-2-1 for the case Ga. Ry. & Power
Co. v. Wright, 146 Ga. 29 (1916).
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)
RESPONSE: Admitted.
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

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use generally applicable to the Lexis/Nexis websites. Stip., Dkt. 17 at ¶ 86; Ex. I to
Stip., Dkt. 17-9.
RESPONSE: Admitted to the extent that “unannotated code” means
“statutory text and numbering in the OCGA.” Commission objects to the
fact alleged in this paragraph as not material.
53.

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

however, states that the Lexis/Nexis website 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.
RESPONSE: Admitted. Commission objects to the fact alleged in this
paragraph as not material to any argument offered by PR in its motion.
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.
RESPONSE: Admitted. Commission objects to the fact alleged in this
paragraph as not material.
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

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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.
RESPONSE: Admitted. Commission objects to the fact alleged in
paragraph fifty five as not material. PR does not rely on or even mention this
alleged fact in its summary judgment arguments.
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.
RESPONSE: Admitted. Commission objects to the fact alleged in
paragraph fifty six as not material. PR does not rely on or even mention this
alleged fact in its summary judgment arguments.
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. at ¶ 90.

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RESPONSE: Admitted. Commission objects to the fact alleged in
paragraph fifty seven as not material. PR does not rely on or even mention this
alleged fact in its summary judgment arguments.
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 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.
RESPONSE: Commission objects to the fact alleged in this
paragraph as not material. Commission admits the first sentence of this
paragraph. Commission objects that the second and third sentences are not
indicated as the personal opinion of a single individual, Mr. Clay Johnson.
To the extent that the Mr. Johnson’s opinion testimony is offered as a lay

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witness under Fed. R. Evid. 701, Commission objects that the cited
paragraphs of Mr. Johnson’s Declaration do not support the assertions of
fact in the second and third sentences of paragraph fifty-eight. Otherwise,
Commission objects to the second and third sentences of paragraph fiftyeight under Fed. R. Evid. 702 because these statements are supported by
opinion testimony of Mr. Johnson on a subject for which he has not been
qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr.
Johnson as an expert on whom it would rely in accordance with the Court’s
scheduling order, Dkt. 13. Commission denies the second and third
sentences of paragraph fifty-eight.
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.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph 59 is not material since it does not concern or relate to Defendant’s
copying or distribution of the OCGA or Defendant’s fair use arguments in this
case.

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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.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph sixty is not material since it does not concern or relate to
Defendant’s copying or distribution of the OCGA or Defendant’s fair use
arguments in this case.
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.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph sixty one is not material since it does not concern or relate to
Defendant’s copying or distribution of the OCGA or Defendant’s fair use
arguments.
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.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph 62 is not material since it does not concern or relate to Defendant’s

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copying or distribution of the OCGA or Defendant’s fair use arguments in this
case.
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.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph sixty three is not material since it does not concern Defendant’s
copying or distribution of the OCGA or Defendant’s fair use arguments.
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 ¶ 10.
RESPONSE: Admitted. Commission objects that the fact alleged in
paragraph sixty four is not material since it does not concern Defendant’s
copying or distribution of the OCGA or Defendant’s fair use arguments.
Commission objects to the remaining assertion that the OCGA is an “edict
of government” that is “promulgated” as stating a legal conclusion and as
mischaracterizing the OCGA as an edict of government having the force of
law. Commission denies the legal conclusion that the OCGA is an edict of
government promulgated by the State of Georgia.

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65.

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

Internet, Public Resource purchase the entirety of 186 printed volumes and
supplements of the O.C.G.A. and 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.
RESPONSE: Admitted.
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.
RESPONSE: Admitted.
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.
RESPONSE: Admitted.

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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
public about the laws that govern it, for educational purposes and to encourage
public engagement with the law. (Malamud Decl., Ex. A. at ¶ 45.
RESPONSE: Commission admits that Public Resource’s stated purpose in
scanning and posting the O.C.G.A. was to facilitate scholarship, criticism and
analysis of the official Code, to inform the public about the laws that govern it, for
educational purposes and to encourage public engagement with the law.
69.

After the Commission commenced this action, Public Resource

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

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RESPONSE: Admitted. Defendant’s statement has an apparent
typographical error in that it appears to refer to “optical character recognition.”
Commission objects to the allegation that creating a version of the OCGA having
optical character recognition makes it significantly more accessible to people who
are visually impaired. Defendant’s record evidence, Malamud Declaration, Ex. A ¶
46, does not establish this as a fact, but merely presents it as an opinion of a nonexpert declarant. Commission also objects to this statement under Fed. R. Evid.
703 because the cited testimony of Mr. Malamud is on a subject for which he has
not been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr. Malamud as
an expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13.
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.
RESPONSE: Admitted. Commission objects to the allegation that
each volume includes significant metadata, making them more easily
discovered using search engines. Defendant’s record evidence, Malamud
Declaration, Ex. A ¶ 46, does not establish this as a fact, but merely presents

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it as an opinion of a non-expert declarant. Commission also objects to this
statement under Fed. R. Evid. 703 because the cited testimony of Mr.
Malamud is on a subject for which he has not been qualified as an expert.
Further, Commission objects under Fed. R. Civ. P. 26(a)(2) and 37(c)(1)
because Defendant did not timely disclose Mr. Malamud as an expert on
whom it would rely in accordance with the Court’s scheduling order, Dkt.
13.
73.

The process of posting each volume creates a version that is

compatible with e-Book readers, smart phones, and tablets. Id.
RESPONSE: Admitted. Commission objects to the allegation in paragraph
73 because Defendant’s record evidence, Malamud Declaration, Ex. A ¶ 46, does
not establish this as a fact, but merely presents it as an opinion of a non-expert
declarant. Commission also objects to this statement under Fed. R. Evid. 703
because the cited testimony of Mr. Malamud is on a subject for which he has not
been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr. Malamud as
an expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13.

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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.
RESPONSE: Admitted.
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.
RESPONSE: Admitted.
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
terms, allowing a reader to quickly look for key phrases in different locations. Id.
RESPONSE: Admitted. Commission objects to the allegation in paragraph
76 because Defendant’s record evidence, Malamud Declaration, Ex. A ¶ 46, does
not establish this as a fact, but merely presents it as an opinion of a non-expert
declarant. Commission also objects to this statement under Fed. R. Evid. 703
because the cited testimony of Mr. Malamud is on a subject for which he has not
been qualified as an expert. Further, Commission objects under Fed. R. Civ. P.
26(a)(2) and 37(c)(1) because Defendant did not timely disclose Mr. Malamud as
an expert on whom it would rely in accordance with the Court’s scheduling order,
Dkt. 13.

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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.
RESPONSE: Admitted.
78.

This campaign ended on July 11, 2014 and raised

approximately $3000 Id. at ¶ 42, 62.
RESPONSE: Admitted.

Respectfully submitted, this 10th day of June, 2016.
/s/Lisa C. Pavento
Lisa C. Pavento (G.A. Bar: 246698)
Anthony B. Askew (G.A. Bar: 025300)
Warren Thomas (G.A. Bar: 164714)
Meunier Carlin & Curfman LLC
999 Peachtree Street, NE, Suite 1300
Atlanta, Georgia 30309
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for the Plaintiff, Code Revision
Commission on behalf of and for the benefit
of the General Assembly of Georgia, and the
State of Georgia

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CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to L.R. 5.1C and 7.1D of the Northern District
of Georgia, the foregoing PLAINTIFF’S OPPOSITION TO
DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL
FACTS IN SUPPORT OF ITS MOTION FOR 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 14-point
Times New Roman font.

/s/Lisa C. Pavento
Lisa C. Pavento (G.A. Bar: 246698)
Meunier Carlin & Curfman LLC
999 Peachtree Street NE, Suite 1300
Atlanta, Georgia 30309
Telephone: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
I certify that on Friday, June 10, 2016, I electronically filed the foregoing
PLAINTIFF’S OPPOSITION TO DEFENDANT’S STATEMENT OF
UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION
FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF
system, which constitutes service of the filed document on all counsel of record in
this proceeding under LR 5.1(A)(3), N.D. Ga.

By:

/s/Lisa C. Pavento
Lisa C. Pavento (G.A. Bar: 246698)
Anthony B. Askew (G.A. Bar: 025300)
Warren Thomas (G.A. Bar: 164714)
Meunier Carlin & Curfman LLC
999 Peachtree Street, NE, Suite 1300
Atlanta, Georgia 30309
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for the Plaintiff, Code Revision
Commission on behalf of and for the benefit
of the General Assembly of Georgia, and the
State of Georgia

37