Fastcase, Inc. v. Lawriter LLC

Filing 21

Response to Statement of Material Facts re 17 MOTION for Summary Judgment filed by Lawriter LLC. (Rozelsky, Kurt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
C.A. NO. 1:16-CV-00327-TCB
FASTCASE, INC.,

)
)
PLAINTIFF,
)
)
vs.
)
)
LAWRITER, LLC d/b/a Casemaker, )
)
DEFENDANT.
)
)

DEFENDANT’S RESPONSE TO
PLAINTIFF’S STATEMENT OF
UNDISPUTED FACTS

Defendant, Lawriter, LLC d/b/a Casemaker (“Lawriter”), submits the
following Response to Plaintiff’s Statement of Undisputed Facts:
1.

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.
RESPONSE: Admitted.
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.

RESPONSE: Admitted.
3.

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.
RESPONSE: Admitted.
4.

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.
RESPONSE: Admitted. Harriman Aff. at 1, ¶4 and Exhibit A thereto.
5.

On December 21, 2015, Lawriter sent Fastcase a letter asserting that:

(a) 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 2-3, ¶ 9 and Doc. 4-3.
RESPONSE:

Plaintiff’s citation does not support Plaintiff’s

contention as the 12/21/2015 letter addresses Fastcase's use of “the Electronic
Files”--that is, the files of the Georgia Rules and Regulations that are posted
on Lawriter’s website, not any electronic file made by anyone else and
containing the Georgia Regulations. Further, the first reference to “Electronic

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Files” in the letter could be read otherwise, but it should not be, given the
clarity of the eight subsequent references to “the Electronic Files” as being the
files posted by Lawriter.
6.

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.
RESPONSE: This assertion is disputed. The letter demands “a written
response substantiating [Fastcase’s] rights to its use of the Electronic Files.”
(Or, alternatively, subscription or cessation of use.) The letter does NOT
demand justification of Fastcase’s right to use the Georgia regulations.
7.

Lawriter publishes the Georgia Regulations directly from the agencies

of the State of Georgia. See Doc. 13 at 7, ¶ 39.
RESPONSE:

This assertion is disputed. This is unclear as to the

significance of “directly from.” The assertion is disputed and is quite different
from the cited source. See also Harriman Aff. at 1-4, ¶¶5-8.
8.

At about the same time that Lawriter withdrew its counterclaims, the

page of the Georgia Secretary of State’s web site providing access to Georgia Rules
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and Regulations, http://rules.sos.ga.gov, was changed. Declaration of Edward J.
Walters at 3, ¶ 12; see Doc. 14 at 4, ¶ 17 and Doc. 14-1.
RESPONSE:
9.

Admitted.

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.
RESPONSE:

This assertion is disputed. The regulations are still

made available, and the significance of “direct access” is unclear, so the clause
“instead of providing direct access” is disputed. Harriman Aff. at 4, ¶9.
10.

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.

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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.
RESPONSE:

Lawriter admits that this text is present on the

website, but this is not the entire text of the terms of use, which further
provide:
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.
You agree that you will not copy, print, or download any portion
of the regulations posted on this site exceeding a single chapter of
regulations for sale, license, or other transfer to a third party,
except that you may quote a reasonable portion of the regulations
in the course of rendering professional advice.
If you violate this agreement, or if you access or use this website in
violation of this agreement, you agree that Lawriter will suffer
damages of at least $20,000.
THIS WEBSITE AND ITS CONTENT ARE PROVIDED “AS
IS.” THE STATE OF GEORGIA AND LAWRITER
EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING
THE WARRANTIES OF MERCHANT-ABILITY, FITNESS
FOR
A
PARTICULAR
PURPOSE,
AND
NONINFRINGEMENT AND ARE NOT LIABLE TO ANY PERSON
FOR ANY ERRORS IN INACCURACIES CONTAINED IN
THIS WEBSITE.
If you accept these terms enter the information below and click “I
AGREE”.

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Harriman Aff. at 4, ¶9, Ex. B.
11.

Even while Lawriter “denies that it purports to have exclusive rights to

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.
RESPONSE:

This is an argument, not an assertion of fact.

In

addition, there is no inconsistency, as Lawriter claims the right “to control
commercial access to the Georgia Regulations as compiled and made available
on-line by [Lawriter].” Harriman Aff. at 4, ¶9.
12.

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.
RESPONSE: This assertion is admitted as stated, but the phrase
“relating to the laws, rules, and regulations of other States” renders the
statement too general to constitute a material fact in this matter.
13.

As Fastcase updates its collection of the Georgia Regulations from the

Georgia Secretary of State website, these purported license terms attempt to
exclude Fastcase and any other commercial user of the Georgia Regulations.
Declaration of Edward J. Walters at 5, ¶ 17.

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RESPONSE: This assertion is false as Fastcase and other commercial
users are permitted to use the website in accord with the Terms of Use. For
example, a commercial user may review the website, including the regulations
of the State of Georgia posted on the website, without violating the Terms of
Use. Harriman Aff. at 4, ¶9.
Respectfully submitted this the 9th day of June, 2016.
SMITH MOORE LEATHERWOOD, LLP
By: s/ Kurt M. Rozelsky
Kurt M. Rozelsky (Bar No. 617932)
Joseph W. Rohe (Bar No. 727154)
2 West Washington Street, Suite 1100
P.O. Box 87, Greenville, SC 29602
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant

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