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

Filing 59

ORDER denying 55 Motion for Attorney Fees. Signed by Judge Richard W. Story on 09/06/2017. (dgr)

Case 1:15-cv-02594-RWS Document 59 Filed 09/06/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CODE REVISION COMMISSION
and STATE OF GEORGIA,
Plaintiffs,

CIVIL ACTION NO.
L15-CV-2594-RWS

V.

PUBLIC RESOURCE.ORG,
Defendant.

ORDER
This case is before the Court for consideration of Plaintiffs' Motion for
an Award of Attorneys' Fees and Other Costs [Doc. 55]. After reviewing the
record, including Defendant's Memorandum of Law in Opposition [Doc.5 6]
and Plaintiffs' Reply [Doc. 57], the Court enters the following Order.
On March 23, 2017, the Court entered an Order [Doc. 44] granting
Plaintiffs' Motion for Partial Summary Judgment and denying Defendant's
Motion for Summary Judgment. On April 7, 2017, the Court issued an Order
[Doc. 46] enjoining Defendant's unauthorized use of the Official Code of

Georgia Annotated ("OCGA") and directing the Clerk to close the case. On

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April 21, 2017, Plaintiffs filed a Motion for Attorneys' Fees that is presently
before the court for consideration.

In any civil action under [Title 17], the court in its discretion
may allow the recovery of full costs by or against any party
other than the United States or an officer thereof. Except as

otherwise provided by this title, the court may also award a
reasonable attorney's fee to the prevailing party as part of the
costs.

17 U.S.C. § 505. "[AJttomey's fees are to be awarded to prevailing parties
only as a matter of the court's discretion. There is no precise rule or formula for

making these determinations, but instead equitable discretion should be
exercised . ..." Fogerty v. Fantasy. Inc., 510 U.S. 517, 534 (1994) (internal

citations and quotations omitted). While objective reasonableness is an
important factor in assessing attorney fee applications, it is not the controlling
one. The court must "take into account a range of considerations beyond the
reasonableness of litigating positions." Kirtsaeng v. John Wiley & Sons, Inc.,
. U.S. _, 136 S.Ct. 1979, 1988 (2016). In Fogerty. the Supreme Court
found that factors such as '"frivolousness, motivation, objective reasonableness

(both in the factual and in the legal components of the case) and the need in
particular circumstances to advance considerations of compensation and

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deterrence' ... may be used to guide courts' discretion." Fogerty, 510 U.S. at

534 n. 19 fquoting Lieb v. Topstone Indus.. Inc.. 788 F.2d 151, 156 (3d Cir.

1986)).
As the prevailing party, Plaintiffs seek an award of attorneys' fees
pursuant to § 505. Having been granted a permanent injunction against
Defendant, Plaintiffs assert that their claims were clearly not frivolous. (Pis.'
Brief [55-1] at 9-11 .) Plaintiffs assert that Defendant engaged in willful
infringement to provoke a lawsuit by Plaintiffs. (Id. at 11-14.) Plaintiffs further
contend that Defendant advanced a legal position that is unsupported by federal
law. (IcL at 14-17.) Specifically, Plaintiffs challenge Defendant's contention
"that the entire OCGA is 'the law/ . . . and therefore, the annotations within the

OCGA are uncopyrightable." (Id. at 10.) Also, Plaintiffs assert that
Defendant's fair use arguments are objectively unreasonable. (Id. at 1 1-12.)
Finally, Plaintiffs argue that without an award of attorneys' fees. Defendant

"will be encouraged to flagrantly violate copyright laws and insight further
lawsuits." (Id, at 11-12.)
In its response. Defendant asserts that its defense was objectively

Page references are to the docket page.

3

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reasonable. Noting the Court's finding that "this is an unusual case because most
official codes are not annotated and most annotated codes are not official" (Order

[Doc. 44] at 11), Defendant contends that this unique characteristic of the OCGA
supports Defendant's position that the annotations could not be treated separately
from the statutory text itself. (Def. Brief [Doc. 56] at 9.) Defendant asserts that
its position that the entire OCGA is a government edict which is not copyrightable
is reasonable. (Id. at 1 8.) Defendant also strongly urges the Court to consider that
it's motivation in posting the OCGA was "to improve public access to sources of
law ... and to encourage others to make the law more useful for the public." (Id.

at 14.)
In their reply, Plaintiffs restate their positions regarding the reasonableness
of Defendant's arguments. Plaintiffs also argue that Defendant's claimed

motivation for its actions is belied by its conduct. (Pis.' Brief [Doc. 57] at 14-15.)
Plaintiffs assert that an award of fees will further "the purposes of the Copyright
Act by encouraging private enforcement of copyrights and deterring
infringements." (Id. at 17.)
"When close infringement cases are litigated, copyright law benefits from
the resulting clarification of the doctrine's boundaries." Lotus Dev. Corp. v.

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Borland Int'l. Inc., 140 F.3d 70, 75 (1st Cir. 1998). As has already been noted,
this case presented an unusual approach to the publication of state statutes. The
importance of public access to a state's laws is not is not subject to debate. The

Court finds that Defendants challenge was not frivolous. Ultimately, Defendant's
position did not prevail, but the resolution of the issues presented serves the public
interest. Assuring public access to the law to the maximum extent permissible was

Defendant's motivation. This motivation coupled with the novelty of the issue
causes the court to conclude that an award of attorneys' fees is not appropriate in
this case. Accordingly, Plaintiffs' Motion for an Award of Attorneys' Fees and

Other Costs [Doc. 55] is DENIED.
.7^

SO ORDERED, this f day of September, 2017.

RICHARD W.'STOJ!

UNITED STATES DISTRICT JUDGE

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