Fastcase, Inc. v. Lawriter LLC

Filing 17

MOTION for Summary Judgment with Brief In Support by Fastcase, Inc.. (Attachments: # 1 Brief Memorandum of Law in Support of Motion for Summary Judgment, # 2 Statement of Material Facts, # 3 Exhibit Declaration of Edward J. Walters, # 4 Text of Proposed Order Granting Motion for Summary Judgment)(Brazier, Robert) --Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.-- Modified on 5/13/2016 to edit exhibit text. (aaq).

THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FASTCASE, INC.,

)
)
Plaintiff,
)
)
v.
)
)
LAWRITER LLC, dba CASEMAKER, )
)
Defendant.
)
_______________________________ )

Case 1:16-cv-00327-TCB
MEMORANDUM OF LAW
IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT

Plaintiff Fastcase is a legal research service that provides online access to
searchable databases of public law, including federal and state statutes,
administrative rules and regulations such as the Georgia Administrative Rules and
Regulations, and judicial decisions, as well as to secondary sources in many states.
Fastcase brought this action for declaratory relief to protect itself against
Defendant Lawriter’s threat to sue Fastcase for its publication of the Georgia
Administrative Rules and Regulations.
Summary judgment in favor of Fastcase is appropriate because it is well
established in both federal and state law that state laws and regulations are in the
public domain, and state publishing contracts cannot create exclusive private rights
in state law. Banks v. Manchester, 128 U.S. 244 (1888); Harrison Co. v. Code
Revision Comm’n, 244 Ga. 325 (1979).

Table of Contents
Table of Authorities .................................................................................................. ii
I. THE UNDISPUTED FACTS ................................................................................. 1
II. THE APPLICABLE LAW .................................................................................... 5
A. Declaratory Judgment Principles ................................................................ 5
B. Summary Judgment Principles ................................................................... 6
C. Fundamental Principle that State Law Must Be Freely Available ............. 6
D. Pre-Emption By Federal Copyright Law .................................................... 9
1. A claim of exclusive right to copy or distribute is equivalent
to copyright ............................................................................... 10
2. State rules and regulations are within the subject matter of
copyright ................................................................................... 11
III. THE LAW IS NOT COPYRIGHTABLE, AND PUBLISHING
CONTRACTS CANNOT CREATE PRIVATE COPYRIGHTS;
JUDGMENT SHOULD BE ENTERED IN FAVOR OF FASTCASE ........ 12
A. The Court Has Subject Matter Jurisdiction .............................................. 12
1. Diversity jurisdiction exists .......................................................... 12
2. Federal Question jurisdiction exists.............................................. 15
3. Lawriter’s threats present a “Case or Controversy” ..................... 17
B. Neither Copyright Nor Private Contract Can Create Exclusive
Publication Rights in Georgia Regulations ......................................... 19
IV. CONCLUSION .................................................................................................. 24

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Table of Authorities
Cases
Banks v. Manchester, 128 U.S. 244 (1888)………………………………………..6
Banks v. West, 27 F. 50 (C.C.D.Minn. 1886)……………………………………..23
Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2nd Cir. 2004)………..16
Building Officials & Code Adm. v. Code Technology, Inc.,
628 F.2d 730 (1980)…………………………………………………….22-23
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)……………………………………..6
Davidson v. Wheelock, 27 F. 61 (1866)………………………………………...7, 21
Ericsson GE Mobile Commc’ns, Inc. v. Motorola Commc’ns & Elecs., Inc.,
120 F.3d 216 (11th Cir. 1997)………………………………………….13-14
Gould v. Banks, 53 Conn. 415 (1886)…………………………………………………..21
GTE Directories Publ’g. Corp. v. Trimen Am., Inc.,
67 F.3d 1563 (11th Cir. 1995)………………………………………….14-15
Harrison Co. v. Code Revision Commission, 244 Ga. 325 (1979)…………..8-9, 23
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256 (11th Cir. 2004)………..6
Horton v. Liberty Mutual Insurance Co., 367 U.S. 348 (1961)……………...…...13
Howell v. Miller, 91 F. 129 (6th Cir. 1898)………………………………...8, 21-22
Hudson Ins. Co. v. Am. Elec. Corp., 957 F.2d 826 (11th Cir. 1992)……………..15
Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342 (11th Cir. 1999)……..5
Nash v. Lathrop, 142 Mass. 29 (1886)……………………………………………..7
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Ritchie v. Williams, 395 F.3d 283 (6th Cir. 2005)………………………………...16
Rosciszewski v. Arete Associates, Inc., 1 F.3d 225 (4th Cir. 1993)……………….16
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938)…………..13
Strickland v. Alexander, 772 F.3d 876 (11th Cir. 2014)…………………………5-6
Stuart Weitzman, LLC v. Microcomputer Resources,
542 F.3d 859 (11th Cir. 2008)……………………………………………...16
Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002)…...8
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)…………………………….6, 19-20

Statutes and Rules
Constitution, Art. III………………………………………………………………..5
17 U.S.C., § 102(a)………………………………………………………………..11
17 U.S.C., § 106……………………………………………………………….10-11
17 U.S.C., § 301…………………………………………………………………..15
17 U.S.C., § 301(a)…………………………………………………………9-10, 16
28 U.S.C., § 1331……………………………………………………………..15, 17
28 U.S.C., § 1332(a)(1)………………………………………………………..12-13
28 U.S.C., § 1332(c)………………………………………………………………13
28 U.S.C., § 1338(a)………………………………………………………….15, 17
28 U.S.C. § 2201…………………………………………………………………...5
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O.C.G.A.§ 50-13-1 et seq…………………………………………………………1
Fed. R.Civ. P. 56(c)……………………………………………………………….6
N.D.Ga. LR 5.1B…………………………………………………………………25

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I. THE UNDISPUTED FACTS
Fastcase is a legal research service that provides online access to searchable
databases of public law, including federal and state statutes (all 50 states and the
District of Columbia), administrative rules and regulations such as the Georgia
Administrative Rules and Regulations, and judicial decisions, as well as to
secondary sources in many states. Declaration of Edward J. Walters at 1, ¶ 2.
Fastcase is available by subscription to lawyers and law firms, and is also made
available for free to members of state bar associations such as the State Bar of
Georgia as a benefit of membership in the bar. Id. at 2, ¶ 5.
Lawriter is a legal research service that similarly offers searchable access to
cases, statutes, and other primary law materials operating under the name
Casemaker. Id., ¶ 6. Lawriter represents that it “is the designated publisher of the
Georgia Rules and Regulations and Monthly Bulletins and granted sole rights to
the distribution of this data.” Doc. 4-1. Lawriter acknowledges that “[t]he Rules
and Regulations of the State of Georgia is a compilation of the rules and
regulations of state agencies that have been filed with the Office of the Secretary of
State pursuant to the Georgia Administrative Procedures Act, O.C.G.A.§ 50-13-1
et seq.” Doc. 4-2.
On December 21, 2015, Lawriter sent Fastcase a letter asserting that: (a)

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Lawriter is the sole “party authorized to license and/or offer subscriptions to use . .
. Electronic Files . . . incorporating the [Georgia Regulations],” and (b) Fastcase’s
provision of fee-based access to Georgia Regulations, without Lawriter’s consent
or authorization or a subscription with Lawriter, violates Lawriter’s “legal rights.”
Declaration of Edward J. Walters at 3, ¶ 9 and Doc. 4-3. The letter threatened
enforcement, including through the commencement of litigation, of Lawriter’s
unspecified “rights,” unless Fastcase: (a) immediately provided Lawriter a written
response justifying its right to use Georgia Regulations, (b) purchased from
Lawriter a subscription to Georgia Regulations, or (c) ceased use of Georgia
Regulations, including provision of fee-based access to Georgia Regulations. Doc.
4-3.
Fastcase brought this action for a declaration of its rights to use and
republish the Georgia Regulations without restriction or threat of suit. Declaration
of Edward J. Walters at 3, ¶ 11; Doc. 1. Lawriter counterclaimed for unjust
enrichment and quantum meruit (Doc. 13) but then amended its Answer (Doc. 14)
to withdraw all counterclaims.

Lawriter has not made any claims that it

contributes original or copyrightable editorial work to the Georgia Regulations, as
Lawriter publishes the Georgia Regulations directly from the agencies of the State
of Georgia. See Docs. 13, 14.

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At about the same time that Lawriter withdrew its counterclaims, the page of
the Georgia Secretary of State’s web site providing access to the official text of the
Georgia Rules and Regulations, http://rules.sos.ga.gov, was changed, apparently by
Lawriter. Declaration of Edward J. Walters at 3-4, ¶ 12; see Doc. 14 at 4, ¶ 17 and
Doc. 14-1. Instead of providing direct access to the Georgia Regulations, the web
site now announces that “certain features of this site have been disabled for the
general public to prevent digital piracy.” Declaration of Edward J. Walters at 4, ¶
13 and Doc. 14-1. Where the Secretary of State formerly had offered the services
of Lawriter to provide research and printed copies of regulatory materials for stated
fees, its website now says:
To access this website, you must agree to the following:
These terms of use are a contract between you and/or your employer
(if any), and Lawriter, LLC.
You agree that you will not copy, print, or download anything from
this website other than for your personal use.
You agree not to use any web crawler, scraper, or other robot or
automated program or device to obtain data from the website.
You agree that you will not sell, will not license, and will not
otherwise make available in exchange for anything of value, anything
that you download, print, or copy from this site.
Declaration of Edward J. Walters at 4, ¶ 14 and Doc. 14-1.
Even while Lawriter “denies that it purports to have exclusive rights to
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publish the Georgia Regulations,” it “affirmatively states that it has the exclusive
right to control commercial access to the Georgia Regulations as compiled and
made available on-line by Defendant.” Doc. 14 at 2, ¶¶ 3, 4. Lawriter also claims
“legal and equitable rights in electronic files it creates and maintains” relating to
the laws, rules and regulations of other States. Doc. 14 at 3, ¶ 7. As Fastcase
updates its collection of the Georgia Regulations from the official Georgia
Secretary of State website, these purported license terms attempt to exclude
Fastcase and any other commercial user of the Georgia Regulations, including
lawyers engaged in the representation of clients. Declaration of Edward J. Walters
at 5, ¶ 17.
Therefore, although Lawriter has withdrawn its original counterclaims, it
continues to re-assert the substance of the withdrawn claims and has attempted to
create for itself even greater exclusive ownership rights in the official text of the
Georgia Regulations. Id., ¶ 18. As a result, Fastcase is under a perpetual and
imminent threat of litigation and commercial harm from Lawriter’s claim of rights
it does not and cannot have. Id., ¶ 19.

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II. THE APPLICABLE LAW
A. Declaratory Judgment Principles
Under Article III of the Constitution, federal courts have the power to
adjudicate actual “Cases” and “Controversies.” Strickland v. Alexander, 772 F.3d
876, 882 (11th Cir. 2014); see 28 U.S.C. § 2201 (a court may issue a declaratory
judgment in “a case of actual controversy within its jurisdiction”). As part of the
case-or-controversy requirement, a plaintiff must establish that he has “standing”
to invoke the power of a federal court to decide the merits of a particular dispute.
Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999).

(1)
(2)

At a constitutional minimum, plaintiffs must make the
following three showings to establish standing:
that they personally have suffered a concrete “injury in fact” -- some
actual or imminent invasion of a legally protected interest;
that a causal connection exists between the injury and the conduct
complained of -- the injury fairly must be traceable to the challenged
action;
and

(3)

that the injury is likely to be redressed by a favorable decision.

Strickland v. Alexander, 772 F.3d at 882.
Where, as here, the plaintiff seeks only declaratory or injunctive relief, as
opposed to damages for injuries already suffered, “the injury-in-fact requirement
insists that a plaintiff ‘allege facts from which it appears there is a substantial
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likelihood that he will suffer injury in the future.’” Strickland, 772 F.3d at 883
(quoting Malowney, 193 F.3d at 1346).
B. Summary Judgment Principles
Summary judgment is appropriate if “there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An
issue of fact is ‘material’ if, under the applicable substantive law, it might affect
the outcome of the case.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1259-60 (11th Cir. 2004).
C. Fundamental Principle that State Law Must Be Freely Available
It has been established in American law for nearly two centuries that public
law is not subject to any party’s exclusive control, and must remain public as a
matter of due process. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 668 (1834)
(“no reporter has or can have any copyright in the written opinions delivered by
this court; and that the judges thereof cannot confer on any reporter any such
right”); Banks v. Manchester, 128 U.S. 244, 253 (1888) (“The whole work done by
the judges constitutes the authentic exposition and interpretation of the law, which,
binding every citizen, is free for publication to all, whether it is a declaration of
unwritten law, or an interpretation of a constitution or a statute”).

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Originally established with regard to judicial decisions, this bedrock
principle applies with equal force to all other aspects of public law, including
regulations promulgated by state agencies. As far back as 1866, the federal Circuit
Court for Minnesota decreed that state statutes were not subject to any proprietary
interest:
[The complainants] obtained no exclusive right to print and publish
and sell the laws of the state of Minnesota, or any number of
legislative acts. . . . such compiler could obtain no copyright for the
publication of the laws only; neither could the legislature confer any
such exclusive privilege upon him.
Davidson v. Wheelock, 27 F. 61 (1866) (emphasis added).
The Supreme Judicial Court of Massachusetts similarly concluded that
judicial decisions and legislative enactments are of the same essence, for purposes
of requiring public access:
The decisions and opinions of the justices are the authorized
expositions and interpretations of the laws, which are binding upon all
the citizens. They declare the unwritten law, and construe and declare
the meaning of the statutes. Every citizen is presumed to know the
law thus declared, and it needs no argument to show that justice
requires that all should have free access to the opinions, and that it
is against sound public policy to prevent this, or to suppress and keep
from the earliest knowledge of the public the statutes, or the decisions
and opinions of the justices. Such opinions stand, upon principle, on
substantially the same footing as the statutes enacted by the
legislature.
Nash v. Lathrop, 142 Mass. 29, 35 (1886) (emphasis added).

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Free access to state law necessarily includes freedom to publish or republish, even by copying from the sole “authorized” publisher. Howell v. Miller,
91 F. 129, 137 (6th Cir. 1898) (“any person desiring to publish the statutes of a
state may use any copy of such statutes to be found in any printed book, whether
such book be the property of the state or the property of an individual”). That the
“book” used as a source of public law may be electronic rather than “printed”
cannot change the underlying principles.
Relatively recently, the Fifth Circuit has made it clear that same principle of
free access must apply even to regulatory codes that are written and promulgated
by private organizations, and merely adopted by the pertinent governmental
authority:
[W]e hold that when Veeck copied only “the law” of Anna and Savoy,
Texas, which he obtained from SBCCI’s publication, and when he
reprinted only “the law” of those municipalities, he did not infringe
SBCCI’s copyrights in its model building codes. The basic
proposition was stated by Justice Harlan, writing for the Sixth Circuit:
“any person desiring to publish the statutes of a state may use any
copy of such statutes to be found in any printed book ...” Howell v.
Miller, 91 F. 129, 137 (6th Cir. 1898).
Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791, 800 (5th Cir. 2002).
The Supreme Court of Georgia is in accord. In Harrison Co. v. Code
Revision Commission, 244 Ga. 325 (1979), the Court considered the effect of a
contract between Georgia’s Code Revision Commission and The Michie
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Company, pursuant to which Michie was granted “the exclusive right to distribute
and sell sets and volumes of the Code for a 10 year period extending from the date
of the initial publication of the Code, as well as the exclusive right to publish
annual supplements and periodic replacement volumes to the Code for the same 10
year period.” 244 Ga. at 329.
The Court concluded:
The exclusive right referred to is the exclusive right to publish the
“Official Code of Georgia Annotated,” the copyright for which will be
in the name of the state. Both Michie and the state, however correctly
concede that this provision does not prevent Harrison from publishing
a competitive product; i.e., a Code with annotations by Harrison. As
was said in Davidson v. Wheelock, 27 F. 61 (D.Minn. 1866), a state’s
laws are public records open to inspection, digesting and compiling by
anyone. Michie is not being given an exclusive franchise as to the
publication of laws in Georgia.
Id.
D. Pre-Emption By Federal Copyright Law
Federal copyright law is the exclusive body of law under which anyone may
claim exclusive rights to copy, publish or distribute the Georgia Regulations, and
federal copyright law pre-empts any attempt by to create contract-based private
copyrights for itself. The Copyright Act declares:
On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of
copyright as specified by section 106 in works of authorship that are
fixed in a tangible medium of expression and come within the subject
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matter of copyright as specified by sections 102 and 103, whether
created before or after that date and whether published or
unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such
work under the common law or statutes of any State.
17 U.S.C., § 301(a).
Indisputably, the Georgia Rules and Regulations are “works of authorship”
and “are fixed in a tangible medium of expression.”
There are still two threshold questions to determine whether the claims
Lawriter threatens to assert here would necessarily be pre-empted by federal
copyright law:

(1) whether the claimed rights “are equivalent to any of the

exclusive rights within the general scope of copyright as specified by section 106”
and (2) whether the works in which rights are claimed “come within the subject
matter of copyright as specified by sections 102 and 103.” The type of claim
asserted by Lawriter is pre-empted because the answers to both questions is “yes,
they are.”
1.

A claim of exclusive right to copy or distribute is equivalent to copyright
Section 106 of the Copyright Act bestows on the owner of a copyright “the

exclusive rights to do and to authorize any of” six enumerated acts. Four of the six
unambiguously apply to the conduct complained of by Lawriter in its demand
letter and actually alleged in its pleadings:

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(1)

to reproduce the copyrighted work in copies or phonorecords;

(2)

to prepare derivative works based upon the copyrighted work;

(3)

to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;

....
(5)

to display the copyrighted work publicly.

17 U.S.C., § 106.
2.

State rules and regulations are within the subject matter of copyright
Section 102(a) of the Copyright Act describes the subject matter of

copyright law:
Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device.
17 U.S.C., § 102(a).
State rules and regulations, although not protectable by copyright as a matter
of public policy, are indisputably within the subject matter of copyright.
Therefore, federal copyright law governs whether any party can exclude any
other person from copying, publishing, distributing or using the Georgia
Regulations.

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III. THE LAW IS NOT COPYRIGHTABLE, AND PUBLISHING
CONTRACTS CANNOT CREATE PRIVATE COPYRIGHTS;
JUDGMENT SHOULD BE ENTERED IN FAVOR OF FASTCASE
In its original response to Fastcase’s Complaint for declaratory relief,
Lawriter set forth in its answer a counterclaim showing exactly what claims it
threatened to assert. The later withdrawal of the counterclaims by amendment
cannot change either the nature or the vitality of the threat. Lawriter still claims
the right to prohibit anyone from access to the Georgia Regulations without its
consent, and to prohibit anyone from copying or republishing the Georgia
Regulations in competition with it.
Lawriter’s claims have no merit, and cannot be amended to show merit.
Judgment should, therefore, be entered in favor of Fastcase.
A. The Court Has Subject Matter Jurisdiction
In light of Lawriter’s assertion of lack of subject matter jurisdiction as an
affirmative defense (Doc. 14 at 7, ¶¶ 32-35), it is appropriate to note that the court
has both diversity and federal question jurisdiction.
1.

Diversity jurisdiction exists
“The district courts shall have original jurisdiction of all civil actions where

the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between citizens of different States.” 28 U.S.C., §

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1332(a)(1).
Lawriter admits that it is “a citizen of Virginia for purposes of assessing
diversity jurisdiction.” Doc. 4 at 3, ¶ 8, admitted by Lawriter in Doc. 14 at 3, ¶ 9.
Fastcase is, for diversity purposes, a citizen of Delaware and the District of
Columbia. Declaration of Edward J. Walters at 1, ¶ 3; see Doc. 4 at 3, ¶ 7. See 28
U.S.C., § 1332(c) (“a corporation shall be deemed to be a citizen of every State and
foreign state by which it has been incorporated and of the State or foreign state
where it has its principal place of business”). The parties are, therefore, diverse.
The amount in controversy exceeds the threshold for diversity jurisdiction,
because Fastcase has sold, or offered to sell, access to electronic databases
including the Georgia Regulations with a cumulative value in excess of $75,000.
Id. at , ¶ .
The general federal rule has long been to decide what the amount in
controversy is from the complaint itself, unless it appears or is in
some way shown that the amount stated in the complaint is not
claimed “in good faith.” In deciding this question of good faith we
have said that it “must appear to a legal certainty that the claim is
really for less than the jurisdictional amount to justify dismissal.”
Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 353 (1961) (quoting St.
Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 289 (1938)).
The Eleventh Circuit has recognized that, when a plaintiff seeks “only
injunctive and declaratory relief, it is well established that the amount in
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controversy is measured by the value of the object of the litigation.” Ericsson GE
Mobile Commc’ns, Inc. v. Motorola Commc’ns & Elecs., Inc., 120 F.3d 216, 218
(11th Cir. 1997).
Here, there can be no serious question about the good faith of Fastcase’s
allegation that the value of the object of the litigation exceeds the jurisdictional
threshold.

Although Lawriter objects that Fastcase “improperly amalgamates

damages” to reach $75,000 (Doc. 14 at 7, ¶ 35), the counterclaims originally
pleaded by Lawriter sought disgorgement of all benefits earned by Fastcase from
the sale or license of access to the Georgia Regulations, or an injunction preventing
Fastcase “from using the rules and regulations in any manner.” Doc. 13 at 8, ¶¶
41-44, 50.
The value to each subscriber is not in issue here, so there is no question of
aggregation of separate claims. The amount at stake for Fastcase is not the price of
any single subscription, but the entire value of this aspect of its business. This
Court has subject matter jurisdiction because that value exceeds $75,000.
Lawriter’s subsequent withdrawal of its counterclaims cannot retroactively
deprive the Court of subject matter jurisdiction, especially in light of Lawriter’s
continuing claims of exclusive rights. “A case or controversy must exist at the
time the declaratory judgment action is filed.” GTE Directories Publ’g. Corp. v.

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Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir. 1995).
2.

Federal Question jurisdiction exists
In an action for declaratory relief only, the court “court must determine

whether or not the cause of action anticipated by the declaratory judgment plaintiff
arises under federal law.” Hudson Ins. Co. v. Am. Elec. Corp., 957 F.2d 826, 828
(11th Cir. 1992).
To the extent that the cause of action anticipated by Fastcase - as confirmed
by the counterclaims Lawriter actually did assert, and re-affirmed by Lawriter’s
continuing claims of exclusive rights - are founded on the acts of copying,
preparation of derivative works, distribution or display (exclusive rights under
copyright law), they are pre-empted and governed by federal copyright law. 17
U.S.C., § 301. To the extent that the claims threatened by Lawriter are pre-empted
by federal copyright law, subject matter jurisdiction is established by 28 U.S.C., §
1338(a), in addition to general federal question jurisdiction pursuant to 28 U.S.C.,
§ 1331.
Fastcase must at this point acknowledge that the Eleventh Circuit, apparently
alone among the several Circuits considering the question, has concluded that
copyright pre-emption cannot establish federal question jurisdiction in the absence
of a copyright registration, because registration is in most circumstances a

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jurisdictional pre-requisite to filing suit in federal court. Stuart Weitzman, LLC v.
Microcomputer Resources, 542 F.3d 859 (11th Cir. 2008).1 Fastcase submits that
the majority rule, that claims pre-empted by copyright raise federal questions even
without registration, is more sound in the circumstances of this case, because the
timing of a copyright filing is entirely within the control of the copyright claimant.
A party in Lawriter’s position may easily send out its demand letter first and
submit its copyright application second.
Lawriter unambiguously claims that its copyright interests are at stake in this
action:
Defendant denies that it claims an exclusive right to publish other
states’ laws, rules and regulations, but reserves its legal and equitable
rights in electronic files it creates and maintains, including without
limitation, the right to claim copyright in any copyrightable materials,
electronic files, data, source code and/or anything in addition to the
statutory text and numbering in the content of the site(s).
1

See, e.g., Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296 (2nd Cir.
2004) (“[P]laintiffs’ unjust enrichment claim . . . is preempted by the Copyright
Act. . . . To the extent that the project includes non-copyrightable material, such as
ideas, these are not sufficient to remove it from the broad ambit of the subject
matter categories.”); Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 232 (4th
Cir. 1993) (“We likewise conclude that Congress intended that actions pre-empted
by Sec. 301(a) of the Copyright Act be regarded as arising under federal law”);
Ritchie v. Williams, 395 F.3d 283, 286 (6th Cir. 2005) (“The grant of exclusive
jurisdiction to the federal courts over civil actions arising under the Copyright Act,
combined with the preemptive force of § 301(a), compels the conclusion that
Congress intended that state law actions preempted by § 301(a) of the Copyright
Act arise under federal law”).
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Doc. 14 at 3, ¶ 7; see also ¶ 27 (Lawriter “maintains certain exclusivity rights with
respect to electronic files, data, and/or other copyrightable materials on the
site(s)”).
Therefore, Fastcase submits that this Court does have subject matter
jurisdiction under §§ 1331 and 1338 (as well as diversity jurisdiction, as discussed
earlier), because the Court would have had subject matter jurisdiction under those
statutes if Lawriter had actually followed through on its threat of litigation by
applying for copyright registration and then bringing suit.
3.

Lawriter’s threats present a “Case or Controversy”
The Declaratory Judgment Act offers relief in these circumstances because,

despite withdrawal of its originally asserted counterclaims, Lawriter still asserts or
purports to “reserve”:
“the exclusive right to control commercial access to the Georgia
Regulations as compiled and made available on-line by Defendant” (id.
at 2, ¶ 4);
“the right to claim copyright in any copyrightable materials, electronic
files, data, source code and/or anything in addition to the statutory text
and numbering in the content of the site(s)” (id. at 3, ¶ 7);
“certain exclusivity rights with respect to the Georgia Regulations, in

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particular the Electronic Files” (id. at 5-6, ¶ 25); and
“certain exclusivity rights with respect to electronic files, data, and/or
other copyrightable materials on the site(s)” (id. at 6, ¶ 27).
Also, by changing the Secretary of State’s web site, Lawriter now purports
to have the right even to prevent access to the official text of the Georgia
Regulations except on the following conditions:
You agree that you will not copy, print, or download anything from
this website other than for your personal use.
You agree not to use any web crawler, scraper, or other robot or
automated program or device to obtain data from the website.
You agree that you will not sell, will not license, and will not
otherwise make available in exchange for anything of value, anything
that you download, print, or copy from this site.
Doc. 14-1.
The restrictions purportedly imposed by these “Terms and Conditions” are
not in any way limited to whatever “electronic files, data, and/or other
copyrightable materials on the site” Lawriter admits to claiming exclusive rights
to, but encompasses the entire official “statutory text and numbering” of the
Georgia Regulations, contrary to Lawriter’s insistence that it makes no claim of
rights in that material.
Moreover, although Lawriter says that it “is not seeking to enforce its

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contract with the State of Georgia against Plaintiff,” there is no other possible
foundation for Lawriter’s claim to control access to the Georgia Regulations other
than through its alleged contract with the State.
Notwithstanding its disclaimer of some of the theories on which such a
claim might be founded,2 Lawriter’s continuing claim of right to control access to
the official text of the Georgia Regulations creates ongoing uncertainty and
confusion, and fully justifies Fastcase’s suit for declaratory judgment that Lawriter
cannot lawfully restrict Fastcase’s access to, or use of, the Georgia Regulations.
Lawriter admits that “Georgia Regulations are binding law and are promulgated by
public agencies of the State of Georgia published for the benefit of the public by
the Georgia Secretary of State.” Doc. 14 at 2, ¶ 2.
B. Neither Copyright Nor Private Contract Can Create
Exclusive Publication Rights in Georgia Regulations
As long ago as 1834, in a dispute between Henry Wheaton and Richard
Peters (better known by the abbreviations “Wheat.” and “Pet.” as early reporters of
Supreme Court proceedings), the Supreme Court established the rule that copyright
2

“Defendant does not claim a copyright in the merely statutory text and
numbering contained in the content of the site” (Doc. 14 at 2, ¶ 3); “Defendant
denies that it claims an exclusive right to publish other states’ laws, rules and
regulations” (id. at 3, ¶ 7); “Defendant does not intend to commence, institute
and/or file any litigation regarding any use of the Electronic Files by Plaintiff prior
to April 7, 2016” (id. at 5, ¶ 23); and “Defendant admits that it is not seeking to
enforce its contract with the State of Georgia against Plaintiff” (id. at 6-7, ¶ 30).
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- however hard-earned it might be - could be protected only to the extent that the
copyright statute permitted:
That every man is entitled to the fruits of his own labour must
be admitted; but he can enjoy them only, except by statutory
provision, under the rules of property, which regulate society, and
which define the rights of things in general.
Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 658 (1834).
The right to publish legislative acts had been exclusive to the sovereign
under English law, before establishment of the American republic. Id. at 659 (“the
king, as the head of the church and the state, claimed the exclusive right of
publishing the acts of parliament”).

In holding that the later reporter could

republish cases originally reported by the earlier, the Court drew the inevitable
inference that legislative acts, and the judicial decisions interpreting and applying
them, must be owned by the people of this nation after adoption of our
Constitution:
It may be proper to remark that the court are unanimously of opinion,
that no reporter has or can have any copyright in the written opinions
delivered by this court; and that the judges thereof cannot confer on
any reporter any such right.
Id. at 668.
All later courts that have considered the question have reached the same

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conclusion.3 In 1866, the Circuit Court for Minnesota faced exactly the issue
presented here: whether legislation granting to one party a copyright in the laws of
the state prevented any other party from publishing the same laws:
Now, what is the exclusive right which the complainants are entitled
to, under the acts of the legislature of the state of Minnesota above
referred to? Clearly, to print, publish, and sell the General Statutes of
the state of Minnesota, as edited and prepared by the commissioner
named by the legislature, containing his head and marginal notes, and
his references. They obtained no exclusive right to print and publish
and sell the laws of the state of Minnesota, or any number of
legislative acts. The materials for such publication are open to the
world. They are public records, subject to inspection by everyone,
under such rules and regulations as will secure their preservation.
They may be digested or compiled by any one, and it is true such
compilation may be so original as to entitle the author to a copyright
on account of the skill and judgment displayed in the combination and
analysis; but such compiler could obtain no copyright for the
publication of the laws only; neither could the legislature confer any
such exclusive privilege upon him.
Davidson v. Wheelock, 27 F. 61, 62 (D.Minn. 1866) (emphases added).
The Sixth Circuit agreed, in a case involving compilations of Michigan
statutes:
It was suggested in argument that no one can obtain the exclusive
right to publish the laws of a state in a book prepared by him. This
general proposition cannot be doubted. And it may also be said that
3

The 1886 decision by the Connecticut Supreme Court in Gould v. Banks, 53
Conn. 415 (1886), is sometimes interpreted as disagreeing with an otherwise
uniform body of caselaw. That case, however, held only that a publisher
authorized by the state had no obligation to allow third parties access to materials
before published. That issue does not arise here.
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any person desiring to publish the statutes of a state may use any
copy of such statutes to be found in any printed book, whether such
book be the property of the state or the property of an individual. If
Miller had cut from Howell’s books, delivered to him by the state, the
general laws of Michigan as therein printed, and the pages so cut out
had been used when his compilation was printed,— if this had been
done, and nothing more,— there would have been no ground of
complaint.
Howell v. Miller, 91 F. 129, 137 (1898) (emphasis added).
More recently, the First Circuit applied this principle in the case of BOCA, a
non-profit organization that was, indisputably, the actual author of a model
building code. Massachusetts adopted the model code, with “relatively minor”
variations, and invited BOCA to publish its revised version as the official state
code. BOCA did so, and offered its publication for sale. “Massachusetts officials
made a practice of referring to BOCA any persons interested in obtaining a copy of
the Massachusetts building code for their own use.” Building Officials & Code
Adm. v. Code Technology, Inc., 628 F.2d 730, 732 (1980).
BOCA sought to evade the uniformity of adverse precedent by arguing that
it was not merely the publisher of laws promulgated by the state but was actually
was the author of the code. The First Circuit was “far from persuaded” by this
argument:
BOCA’s argument overlooks another aspect of the ownership theory
discussed in these cases. The cases hold that the public owns the law
not just because it usually pays the salaries of those who draft
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legislation, but also because, in the language of Banks v. West, 27 F.
50, 57 (C.C.D.Minn.1886), “Each citizen is a ruler,-a law-maker.”
The citizens are the authors of the law, and therefore its owners,
regardless of who actually drafts the provisions, because the law
derives its authority from the consent of the public, expressed
through the democratic process.
Along with this metaphorical concept of citizen authorship, the cases
go on to emphasize the very important and practical policy that
citizens must have free access to the laws which govern them. This
policy is, at bottom, based on the concept of due process. Regulations
such as the Massachusetts building code have the effect of law and
carry sanctions of fine and imprisonment for violations, e.g.,
Mass.G.L. c. 23B s 17(a), P 3. Due process requires people to have
notice of what the law requires of them so that they may obey it and
avoid its sanctions. So long as the law is generally available for the
public to examine, then everyone may be considered to have
constructive notice of it; any failure to gain actual notice results from
simple lack of diligence. But if access to the law is limited, then the
people will or may be unable to learn of its requirements and may be
thereby deprived of the notice to which due process entitles them.
Id. at 734 (emphases added).
To whatever extent Lawriter might seek to base its claims on state law,
Georgia law similarly establishes that private contracts may not create exclusive
rights in Georgia law, regardless of what Lawriter’s contract with the Secretary of
State says. The Georgia Supreme Court has held that the “state’s laws are public
records open to inspection, digesting and compiling by anyone,” notwithstanding
an

apparently exclusive

contract

awarded

by the

State

to

a

single

compiler/publisher. Harrison Co. v. Code Revision Commission, 244 Ga. 325, 329

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(1979).
IV. CONCLUSION
No matter what its contract with the Secretary of State might say, or what
conditions it requires for access to its website, Lawriter simply has no ownership
rights to control or limit access to the official text of the Georgia Regulations, as
presented to the public on the website of Georgia’s Secretary of State. This Court
can and should adjudicate that Lawriter’s attempts to do so are improper and
unlawful. Lawriter has every right to charge a reasonable price to any third party
for reprints or for access to any editorial material Lawriter might append to the
Regulations. However, nearly two centuries of uniform law and public policy,
recognized by the Supreme Court of Georgia and the United States as well as by
many courts in between, precludes any limitation on copying or republication of
the Regulations themselves.
For these reasons, Fastcase respectfully submits that its motion for summary
judgment should be granted, and that the Court should enter judgment declaring (1)
that Lawriter does not and cannot have any copyright in the Georgia Regulations,
or in the laws, rules, and regulations of any other State; and (2) that Fastcase does
not and cannot infringe any exclusive contract rights held by Defendant in the
Georgia Regulations, or in the laws, rules, and regulations of any other State.

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Respectfully submitted this 12th day of May 2016.
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
/s/ Robert G. Brazier
Robert G. Brazier (Georgia Bar No. 078918)
[e-mail]
Steven G. Hall (Georgia Bar No. 319308)
[e-mail]
Joshua Tropper (Georgia Bar No. 716790)
[e-mail]
Monarch Plaza, Suite 1600
3414 Peachtree Road N.E.
Atlanta, GA 30326
Telephone [phone]
Facsimile [phone]
Attorneys for Plaintiff Fastcase, Inc
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief has been prepared with Times New
Roman 14-point, which is one of the font and point selections approved by the
court in LR 5.1B.
/s/ Robert G. Brazier
Robert G. Brazier
Georgia Bar No. 078918
[e-mail]

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THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FASTCASE, INC.,

)
)
Plaintiff,
)
)
v.
)
)
LAWRITER LLC, dba CASEMAKER, )
)
Defendant.
)
_______________________________ )

Case 1:16-cv-00327-TCB
MEMORANDUM OF LAW
IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT

CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2016, I electronically filed
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT with the Clerk of Court using the CM/ECF system which will
automatically send email notification of such filing to the following attorney of
record:
Kurt M. Rozelsky (Bar No. 617932)
[e-mail]
Joseph W. Rohe (Bar No. 727154)
[e-mail]
2 West Washington Street, Suite 1100
P.O. Box 87
Greenville, SC 29602
Telephone: [phone]
Facsimile: [phone]

- 26 -

This 12th day of May, 2016.
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
/s/ Robert G. Brazier
Robert G. Brazier
Georgia Bar No. 078918

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