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

Filing 44

ORDER denying 29 Defendant's Motion for Summary Judgment and granting 30 Plaintiffs' Motion for Partial Summary Judgment. The parties are ORDERED to confer and to submit to the Court, within 14 days, a proposed briefing schedule to address the injunctive relief to which Plaintiffs are entitled as a result of the foregoing decision. Signed by Judge Richard W. Story on 3/23/2017. (bdb)

IN T H E UNITED STATES DISTRICT COURT
F O R T H E NORTHERN DISTRICT OF G E O R G I A
ATLANTA DIVISION
CODE REVISION COMMISSION
and STATE OF GEORGIA,
Plaintiffs,
CIVIL ACTION NO.
l:15-CV-2594-RWS

V.

PUBLIC.RES0URCE.ORG, INC.,
Defendant.
ORDER
This matter is before the Court on Defendant's Motion for Summary
Judgment [Doc. No. 29] and Plaintiffs' Motion for Partial Summary Judgment
[Doc. No. 30].
I.

Factual Background
Plaintiff Code Revision Commission ("Commission") is composed ofthe

Lieutenant Governor, four members of the Senate, the Speaker ofthe House of
Representatives, 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.

O.C.G.A., Foreword at x.

The Commission assists the Georgia

legislature in publishing the laws it enacts in the Official Code of Georgia
("O.C.G.A.") [Doc. No. 29-1,

12, admitted; Doc. No. 17, ^ 82].

The

Commission was created by the General Assembly in 1977 and was tasked with
selecting a publishing firm "possessing the necessary expertise and manpower to
accomplish a complete remodification [of the state's laws] as quickly as possible."
O.C.G.A., Foreword at ix-x. 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, at x.
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. Upon completion of the editorial process, a manuscript entitled
the Code of Georgia 1981 Legislative Edition was prepared, presented to the
General Assembly, and enacted at the 1981 extraordinary session of the General
Assembly [Doc. No. 29-1,

19, admitted]. Annotations, indexes, editorial notes,

and other materials have been added to that manuscript to produce the O.C.G.A.,
the first official Code to be published under authority ofthe State of Georgia since
the Code of 1933 [Id,].
On October 3, 2006, the Commission issued a Request for Proposals, and
2
A O 72A
{Rev.8/8
2)

on December 27,2006, the Commission entered a new Agreement for PubUcation
("Agreement") with Matthew Bender & Co. Inc. ("Lexis/Nexis") [Doc. No. 29-1,
^ 20, admitted; Doc. No. 29-8]. The Agreement requires the official Code to
include not only the statutory provisions, but also "annotations, captions,
catchlines, headings, history lines, editorial notes, cross-references, indices, title
and chapter analyses, research references, amendment notes. Code Commission
notes, and other material related to or included in such Code at the direction ofthe
Commission" [Doc. No. 29-8, p. 2]. Each O.C.G.A. volume and supplement
therefore contains statutory text and non-statutory annotation text, including
judicial decision summaries, editor's notes, research references, notes on law
review articles, summaries of the opinions of the Attomey General of Georgia,
indexes, and title, chapter, article, part, and subpart captions, which are all
prepared by Lexis/Nexis under the requirements of the Agreement [Doc. No. 17,

^ T | l - 3 , 9, 18, and 26].
The Agreement 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 ofthe O.C.G.A. [Doc.
No. 29-8, p. 2]. The Agreement requires Lexis/Nexis to follow the Commission's

A O 72A
(Rev.8/8
2)

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" [ I d ] . Additionally, the Agreement requires
that Lexis/Nexis 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 statutes, whether such decisions favor plaintiffs, defendants, or
the prosecution" [ I d , p. 4]. The Agreement similarly provides that research
references and legislative history are included in the O.C.G.A. [ I d , pp. 5-6].
The Agreement requires that Lexis/Nexis provide Georgia's statutes in an
un-annotated form on a website that the public can access for free using the
Internet [Doc. No. 29-8, pp. 12-13; Doc. No. 17,

73-75]. The free public

website contains only the statutory text and numbering of the O.C.G.A. [Doc. No.
17, Ift 73, 75]. The Agreement requires Lexis/Nexis to track usage of the unannotated Code and to report annually to the Commission the amount of usage and
the effect of subscriptions to the Code in print and on CD-ROM [Doc. No. 29-8,
p. 13]. The Agreement requires Lexis/Nexis to provide appropriate copyright
4

notice on both the free pubhc website and the onhne O.C.G.A. available as part
of the Lexis/Nexis for-profit online services and to notify visitors that any
reproduction of the O.C.G.A. other than the statutory text and numbering is
prohibited [Doc. No. 29-8, p. 13].
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
Lexis/Nexis receives income from its sales of the O.C.G.A. [Doc. No. 17, Tf^f 8485]. The Commission, however, only receives royalties from the licensing fee for
the CD-ROM and online versions ofthe O.C.G.A. [Doc. No. 29-1, ^f 37, admitted].
In fiscal year 2014, the Commission received $85,747.91 in licensing fee royalties
[ I d , p 8 , admitted].
To make the O.C.G.A., including the annotations, available on the Internet,
Public Resource purchased all 186 printed volumes and supplements of the
O.C.G.A., scanned them all, and then posted those copies on its website:
https://law.resource.org [Doc.No. 17,^T|34-36]. Pubhc Resource also 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,
5

and other members of the State of Georgia legislature [ I d , f^f 63-64]. Public
Resource actively encourages all citizens to copy, use, and disseminate the
O.C.G.A. volumes and to create works containing them [Doc. No. 29-1, ^ 74,
admitted].
This action was filed on July 21, 2015 [Doc. No. 1]. On October 8, 2015,
Plaintiffs filed an Amended Complaint with claims for direct and indirect
copyright infringement [Doc. No. 11]. Plaintiffs seek injunctive relief and
removal of any infringing materials from the Internet [Id]. Defendant filed a
Counterclaim which seeks a judgment of non-infringement [Doc. No. 16].
After the Commission commenced this action. Public Resource purchased
and copied the 2015 volumes and supplements of the O.C.G.A. and posted them
on its website [ I d , ^ 46]. In addition. Public Resource posted the copies on the
Internet archive website, www.archive.org [ I d , f^f 50-52, 54-56].
II.

Legal Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be

granted " i f the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law." FED. R. CiV. P.
56(a). "The moving party bears 'the initial responsibility of informing the . . .
6

court of the basis for its motion, and identifying those portions ofthe pleadings,
depositions, answers to inten-ogatories, and admissions on file, together with the
affidavits, i f any, which it believes demonstrate the absence of a genuine issue of
material fact.'" Hickson Corp. v. N. Crossarm Co.. 357 F.3d 1256, 1260 (11th
Cir. 2004) (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (internal
quotations omitted)). Where the moving party makes such a showing, the burden
shifts to the non-movant, who must go beyond the pleadings and present
affirmative evidence to show that a genuine issue of material fact does exist.
Anderson v. Libertv Lobbv. Inc.. 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id, at
248. A fact is not material i f a dispute over that fact will not affect the outcome
of the suit under the governing law. Ld, An issue is genuine when the evidence
is such that a reasonable jury could retum a verdict for the non-moving party. Id,
at 249-50.
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Patton v. Triad Guar. Ins. Corp.. 277 F.3d 1294, 1296 (11th Cir.
2002). But the court is bound only to draw those inferences that are reasonable.
7
A O 72A
(Rev,8/8
2)

"Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial." Allen v. Tyson
Foods. Inc.. 121 F.3d 642, 646 (11th Cir. 1997) rguoting Matsushita Elec. Indus.
Co.v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986)). " I f the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted."
Anderson. 477 U.S. at 249-50 (internal citations omitted); see also Matsushita.
475 U.S. at 586 (once the moving party has met its burden under Rule 56(a), the
nonmoving party "must do more than simply show there is some metaphysical
doubt as to the material facts").
III.

Analysis
Defendant has filed a Motion for Summary Judgment [Doc. No. 29].

Plaintiffs have filed a Motion for Partial Summary Judgment [Doc. No. 30;
because Plaintiffs do not request judgment as to the 2015 works, which at the time
of briefing were yet to be registered. In support of its motion. Defendant contends
that the Court should grant summaryjudgment for two reasons: (1) the annotations
to the O.C.G.A. are not copyrightable due to the unusual circumstances in Georgia
in which the O.C.G.A., the only official Code of Georgia, includes the
annotations; and (2) even i f the annotations are copyrightable, Defendant's use
8

constitutes a non-infringing fair use of tlie copyrighted work.
A.

Copyrightability of the O.C.G.A.

In order to establish a case of direct copyright infringement, Plaintiffs must
demonstrate that: (1) they own a valid copyright in the allegedly infringing works,
and (2) that Defendant copied the protected elements ofthe works. Peter Letterese
& Assocs. V. World Inst, of Scientologv Enters.. I n t ' l 533 F.3d 1287,1300 (11th
Cir. 2008) (citing Feist Publ'ns. Inc. v. Rural Tel. Serv. Co.. 499 U.S. 340, 361
(1991)). The parties have stipulated that, outside ofthe works pubHshed in 2015,
each of the O.C.G.A. works is the subject of a copyright registration [Doc. No. 17,
^ 1 7 ] . A certificate of copyright registration made within five years after first
publication of the work constitutes "prima facie evidence of the validity of the
copyright and of the facts stated in the certificate." Latimer v. Roaring Toyz. Inc..
601 F.3d 1224, 1233 (11th Cir. 2010); 17 U.S.C. § 410(c). Production of these
registrations shifts the burden to Defendant to establish that the registered works
are not copyrightable. Latimer. 601 F.3d at 1233.
The Copyright Act extends protection to copyright owners "in original
works of authorship fixed in any tangible medium of expression, now Imown or
later developed, from which they can be perceived, reproduced, or otherwise

A O 72A
(Rev.8/8
2)

communicated, either directly or with the aid of a machine or device." 17 U.S.C.
§ 102(a). The Supreme Court instructs that the amount of originality required to
extend copyright protection to a work is exceedingly low, that only a "modicum
of creativity" is needed, and that copyright protection will be provided to the work
"no matter how crude, humble or obvious it might be." Feist. 499 U.S. at 345-46.
The Copyright Act itself specifically lists "annotations" in the works
entitled to copyright protection. 17 U.S.C. § 101. A long line of cases recognizes
copyright protection for annotated cases and statutes. See, e^g,, W.H. Anderson
Co. V. Baldwin Law Pub. Co.. 27 F.2d 82 (6th Cir. 1928); Lawrence v. Dana. 15
F. Cas. 26 ( C C D . Mass. 1869). Moreover, the United States Copyright Office's
own treatise expressly recognizes the protectability of annotations.

U.S.

COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § §

313.6(C)(2), 717.1 (3d ed. 2014) (stating also that "[a] legal publication that
analyzes, annotates, summarizes, or comments upon a legislative enactment, a
judicial decision, an executive order, an administrative regulation, or other edicts
of government may be registered as a non-dramatic literary work"). In fact, the
Copyright Office has a long history of registering annotated statutes, such as
Copyright Reg. AA000020419 for Vernon's Annotated Statutes ofthe State of
10

Texas and Copyright Reg. TX0008001813 for Annotated Statutes of New Mexico
2015 Advance Code Service. Defendant admits that annotations in an unofficial
Code would be copyrightable [Doc. No. 17-4, p. 2].
Here, Defendant argues that these annotations to the O.C.G.A. are not
copyrightable, but the Court disagrees. The Court acloiowledges that this is an
unusual case because most official codes are not annotated and most annotated
codes are not official. The annotations here are nonetheless entitled to copyright
protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in
which the Court found annotations in a legal reporter were copyrightable by the
publisher, is instructive. Defendant itself has admitted that annotations in an
unofficial reporter would be copyrightable, and the Court finds that the Agreement
does not transform copyrightable material into non-copyrightable material.
Furthermore, a transformation of an annotation into one uncopyrightable
unit with the statutory text would be in direct contradiction to current Georgia law.
The U.S. Copyright Office has stated: "As a matter of longstanding public pohcy,
the U. S. Copyright Office will not register a government edict that has been issued
by any state." Compendium of U.S. Copyright Office Practices § 313.6(0(2) f3d
ed. 2014). However, the Copyright Compendium makes clear that the Office may
11

register annotations that summarize or comment upon legal materials unless the
annotations have the force of law. Only those government documents having the
force of law are uncopyrightable. Id,
The entire O.C.G.A. is not enacted into law by the Georgia legislature and
does not have the force of law. The Georgia General Assembly has passed not just
one but three different statutes to make clear that the O.C.G.A. contains both law
and commentary. O.C.G.A. § 1-1-1 distinguishes the statutory and non-statutory
commentary portions of the O.C.G.A.:
The statutory portion of the codification of Georgia laws prepared by
the Code Revision Commission and the Michie Company pursuant
to a contract entered into on June 19,1978, is enacted and shall have
the effect of statutes enacted by the General Assembly of Georgia.
The statutory portion of such codification shall be merged with
annotations, captions, catchlines, history lines, editorial notes, crossreferences, indices, title and chapter analyses, and other materials
pursuant to the contract and shall be published by authority of the
state pursuant to such contract and when so published shall be known
and may be cited as the "Official Code of Georgia Annotated."
O.C.G.A. § 1-1-7 first enacted as a session law in 1982 further states:
Unless otherwise provided in this Code, the descriptive headings or
catchlines immediately preceding or within the text of the individual
Code sections of this Code, except the Code section numbers
included in the headings or catchlines immediately preceding the text
of the Code sections, and title and chapter analyses do not constitute
part of the law and shall in no manner limit or expand the
12
A O 72A
(Rev.8/8
2)

construction of any Code section. All historical citations, title and
chapter analyses, and notes set out in this Code are given for the
purpose of convenient reference and do not constitute part ofthe law.
Finally, the State of Georgia sessions laws include the following:
Annotations; editorial notes; Code Revision Commission notes;
research references; notes on law review articles; opinions of the
Attorney General of Georgia; indexes; analyses; title, chapter, article,
part, and subpart captions or headings, except as otherwise provided
in the Code; catchlines of the Code sections or portions thereof,
except as otherwise provided in the Code; and rules and regulations
of state agencies, departments, boards, commissions, or other entities
which are contained in the Official Code of Georgia Annotated are
not enacted as statutes by the provisions of this Act.
2014 Ga. Laws 866, 2015 Ga. Laws 5, § 54.
Finally, Defendant has argued that the merger doctrine applies here and bars
copyrightability. Under the merger doctrine, "expression is not protected in those
instances where there is only one or so few ways of expressing an idea that
protection ofthe expression would effectively accord protection to the idea itself"
BUC Inf 1 Corp. v. Inf 1 Yacht Council Ltd.. 489 F.3d 1129,1142 (11th Cir. 2007)
(internal quotation marks omitted). Such is not the case here. The mere fact that
the judicial summaries in the O.C.G.A. are distinctly different from corresponding
annotations in West's Code Annotated belies the applicability of the merger
doctrine. There is no question that there are a multitude of ways to write a
13
A O 72A
(Rev,8/8
2)

paragraph summarizing a judicial decision, and further, a multitude of ways to
compile the different annotations throughout the O.C.G.A. Therefore, the Court
finds that the merger doctrine is inapplicable here.
For the reasons discussed above, the Court finds that the annotations ofthe
O.C.G.A. are copyrightable.
B.

Fair Use

Since the Court has found that the armotations of the O.C.G.A. are entitled
to copyright protection, the Court will now address Defendant's arguments
regarding fair use. A claim of fair use is an affirmative defense with the burden
of proof on the putative infringer. See Harper & Row, Publishers v. Nation
Enters.. 471 U.S. 539, 562 (1985); Cambridge Univ. Press v. Patton. 769 F.3d
1232, 1280 (11th Cir. 2014). In determining whether application of the fair use
doctrine is appropriate, the Copyright Act mandates the review of four factors: (1)
the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work. 17 U.S.C. § 107. These four
14

statutory factors are not to be treated in isolation from one another. See Campbell
V. Acuff-Rose Music. Inc.. 510 U.S. 569, 578 (1994). Rather, "[a]ll are to be
explored, and the results weighed together, in light of the puiposes of copyright."
I d at 578.
i.

Purpose and character of the use

The first factor that the Court must consider is the purpose and character of
Defendant's use of the copyrighted work. The Court must consider multiple
factors, including (1) the extent to which the use is "transformative" rather than
merely a superseding use of the original work, and (2) whether the use is for a
nonprofit educational purpose, as opposed to a commercial purpose. Peter
Letterese & Assocs. v. World Inst, of Scientologv Enters.. 533 F.3d 1287, 1309
(11th Cir. 2008). The Eleventh Circuit instructs:
A transformative work is one that adds something new, with a further
purpose or different character, ahering the first work with new
expression, meaning or message. On the other hand, a work that is
not transformative, and that merely supersedes the objects ofthe
original creation, is less likely to be entitled to the defense of fair use
because of the greater likelihood that it will supplant the market for
the copyrighted work, fulfilling demand for the original.
I d at 1310 (internal citations and quotation marks omitted).
Defendant does not transform the annotations. It does not add, edit, modify,
15
A O 72A
(Rev.8/8
2)

comment on, criticize, or create any analysis or notes of its own. Defendant's
justification in support of its verbatim copying and free distribution without
authorization is that it purports to provide wider distribution of the annotations.
Courts have routinely rej ected arguments that this is transformative use. See, e^g,,
Author's Guild. Inc. v. HathiTrust. 755 F.3d 87,101 (2d Cir. 2014) ("[Tjhe district
court concluded that the 'use of digital copies to facilitate access for print-disabled
persons is a transformative' use. This is a misapprehension; providing expanded
access to the print disabled is not 'transformative'") (citation omitted)); Seltzer v.
Green Dav. Inc.. 725 F.3d 1170, 1177 (9th Cir. 2013) ("In the typical 'nontransformative' case, the use is one which makes no alteration to the expressive
content or message of the original work." (emphasis omitted)). Defendant's
verbatim copying and posting of the annotations is expressly designed to supplant
the O.C.G.A. as already distributed and made available online by Lexis/Nexis,
which is not transformative.
The Court must also consider whether Defendant's use is for a nonprofit
educational purpose, as opposed to a commercial purpose. That Defendant is a
nonprofit does not end the inquiry pursuant to § 107(1). The Supreme Court has
explained that" [t]he crux of the profit/nonprofit distinction is not whether the sole
16

motive of the use is monetary gain but whether the user stands to profit from
exploitation of the copyrighted material without paying the customary price."
Hai-per & Row. 471 U.S. at 562.

Courts in several cases have found that

educational use of copyrighted works by a nonprofit entity (or an individual
associated with such an entity) was commercial even though the secondaiy user
was not selling the items in question; "profif' may take the form of an indirect
economic benefit or a non-monetary, professional benefit. See, e.g.. Soc'yofHoly
Transfiguration Monastery. Inc. v. Gregory. 689 F.3d 29, 61 (1st Cir. 2012)
(finding that the first factor weighed against fair use where an archbishop used
copyrighted translations of a religious text on his website; although the use was
educational, the archbishop profited from the use, in part, in the form of enhanced
professional reputation; Worldwide Church of God v. Phila. Church of God. Inc..
227 F.3d 1110,1118 (9th Cir. 2000) (finding the first factor weighed against fair
use where a religious organization distributed copies of a copyrighted book for use
in its religious observance; the use was nontransformative, and although the use
was educational, the organization profited indirectly by using the work to attract
new members who would tithe ten percent of their income); Weissmarm v.
Freeman. 868 F.2d 1313,1324 (2d Cir. 1989) (finding that the first factor weighed
17

against fair use where a professor claimed an assistant's paper as his own work
and copied it for use in his class, under the professor's name, because the
professor profited from the use by enhancing his professional reputation and
gaining a valuable authorship credit).
In this case. Defendant's business involves copying and providing what it
deems to be "primary legal materials" on the Internet. Defendant is paid in the
form of grants and contributions to further its practice of copying and distributing
copyrighted materials. Defendant has also published documents that teach others
how to take similar actions with respect to government documents. Therefore, the
Court finds that Defendant "profits" by the attention, recognition, and
contributions it receives in association with its copying and distributing the
copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor
educational.
ii.

Nature of the copyrighted work

The second factor that the Court must consider is the nature of the
copyrighted work. The selection, writing, editing, statutory commentary, and
creativity of the annotations requires skill and analysis in reviewing a wealth of
materials and drafting original materials to inform and educate users about courts
18

and agencies applying the Georgia code and their citation in third party materials.
The creation ofthe annotations requires a tremendous amount of work from a team
of editors. These efforts confirm that the armotations are original works entitled
to broad copyright protection.
The fact that the annotations contain fact and not fiction does not end the
inquiry for fair use purposes. Indeed, the Eleventh Circuit admonished the district
court in Patton for exactly this approach:
Here, the District Court held that "because all of the excerpts
are informational and educational in nature and none are
fictional, fair use factor two weights in favor of Defendants.
Cambridge Univ. Press. 863 F.Supp.2d at 1242. We disagree.
. . . Accordingly, we find that the District Court erred in
holding that the second factor favored fair use in every
instance. Where the excerpts of Plaintiffs' works contained
evaluative, analytical, or subjectively descriptive material that
surpasses the bare facts necessary to communicate
information, or derives from the author's experiences or
opinions, the District Court should have held that the second
factor was neutral, or even weighed against fair use in cases of
excerpts that were dominated by such material.
Patton. 769 F.3d 1269-1270. The annotations in this case contain exactly the
evaluative, analytical, or subjectively descriptive analysis and guidance that the
Eleventh Circuit addressed in Patton. Thus, the second factor is, at best, neutral
as between these parties.
19

iii.

Amount and substantiality ofthe portion used

The third factor that the Court must consider is "the amount and
substantiality of the portion used in relation to the copyrighted work as a whole."
17 U.S.C. § 107(3). A court must ask whether the defendant has "helped [itself]
overmuch to the copyrighted work in light of the purpose and character of the
use." Peter Letterese. 533 F.3d at 1314 (quoting Campbell. 510 U.S. at 587). This
factor recognizes that the more of a copyrighted work that is taken in quantity and
quality, the less likely the use is to be fair. See Harper & Row. 471 U.S. at 565
(holding that the third factor disfavored fair use because the defendant copied a
qualitatively substantial portion of the original work, even though the defendants
copied only approximately 300 words out of the 200,000 words in the plaintiffs'
work). Indeed, where a defendant "uses virtually all of a copyrighted work, the
fair use defense drifts even further out of its reach." Pac. & S. Co. v. Duncan. 744
F.2d 1490, 1497 (11th Cir. 1984). In this case. Defendant has misappropriated
every single word of every annotation using a bulk industrial electronic scanner.
iv.

Effect on the potential market

The fourth factor that the Court must consider is "the effect of the use upon
the potential market for or value of the copyrighted work." 17 U.S.C. § 107(4).
20

The "central question" is whether, assuming that everyone engaged in the
defendant's conduct, the use "would cause substantial economic harm such that
allowing [the conduct] would frustrate the purposes of copyright by materially
impairing [the] incentive to publish the work." Patton. 769 F.3d at 1276. The
Supreme Court has expressly stated that this factor forms the most central inquiry
ofthe fair use doctrine. Harper & Row. 471 U.S. at 566 (stating "[t]his factor is
undoubtedly the single most important element of fair use").
Plaintiffs have established the markets for the O.C.G.A. works: printed
publications, CD-ROM, and subscription services. When considering Defendant's
actions being performed by everyone, it is inevitable that Plaintiffs' markets
would be substantially adversely impacted. A judicial decree that Defendant's
wholesale copying of the copyrighted armotations constitutes a fair use would
hinder the economic viability of creating and maintaining the O.C.G.A. because
people would be less likely to pay for annotations when they are available for free
online.
Additionally, Lexis/Nexis's sole revenue to recoup the costs of preparation
of the annotations is through hard copy sales and licensing online access to the
O.C.G.A. as permitted by the Agreement. Because Defendant has copied every
21

word of the annotations verbatim and posted them free of charge, Defendant's
misappropriation destroys Lexis/Nexis's ability to recoverthese costs. See Patton.
769 F.3d at 1275 ("Because Defendants' use is nontransformative and fulfills the
educational purposes that Plaintiffs, at least in part, market their works for, the
threat of market substitution here is great and thus the fourth factor looms large
in the overall fair use analysis."). The revenues from such licensing reinforce the
value of the O.C.G.A. and the damage that would be inflicted i f the entire
O.C.G.A. were made available for free,
v.

Conclusion

The Court has weighed all of the Campbell factors and finds that at least
three of the four factors weigh in favor of Plaintiffs and against Defendant. As a
result, the Court concludes that Defendant has not met its burden of proving fair
use, and Plaintiffs are entitled to partial summaryjudgment.
IV.

Conclusion
Defendant's Motion for Summary Judgment [Doc. No. 29] is DENIED.

Plaintiffs' Motion for Partial Summary Judgment [Doc. No. 30] is GRANTED.
The parties are ORDERED to confer and to submit to the Court, within 14 days,
a proposed briefing schedule to address the injunctive relief to which Plaintiffs are
22

entitled as a result of the foregoing decision.
SO ORDERED, this ^3

day of March

RICHAHb W. STORY
United'States District ludge

23
A O 72A
(Rev.8/8
2)