Fastcase, Inc. v. Lawriter LLC
Filing
25
REPLY BRIEF re 17 MOTION for Summary Judgment filed by Fastcase, Inc.. (Tropper, Joshua)
THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FASTCASE, INC.,
)
)
Plaintiff,
)
)
v.
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)
LAWRITER LLC, dba CASEMAKER,)
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Defendant.
)
________________________________)
Case 1:16-cv-00327-TCB
REPLY MEMORANDUM
IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
Plaintiff Fastcase has established “that there is no genuine dispute as to any
material fact” regarding the status of the Georgia Administrative Rules and
Regulations (the “Georgia Regulations”) as public law that must be freely
available. Defendant Lawriter has no copyright in them, and cannot create a
private copyright to them in contract. Fastcase’s motion for summary judgment
should, therefore, be granted because it “is entitled to judgment as a matter of law.”
Fed. R.Civ. Proc. Rule 56(a); Celotex v. Catrett, 477 U.S. 317, 322 (1986).
Fastcase makes the Georgia Regulations available for free to members of
state bar associations such as the State Bar of Georgia as a benefit of membership
in the bar. Dkt. 17-3 at 2, ¶ 5. It must update the Georgia Regulations from their
official source, the Secretary of State’s website, in order to serve members of the
State Bar. After Fastcase filed this suit to protect itself from Lawriter’s demand
letter threatening litigation, on April 7, 2016, Lawriter added a registration
requirement to the Secretary of State’s website, providing that:
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.
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.
Dkt 21 at 4-5.
Lawriter’s brief opposing summary judgment suggests that this change in its
cause of action against Fastcase and other legal users of the Georgia Regulations
deprives the Court of the power to adjudicate this case. In its pleadings and brief,
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however, Lawriter still threatens to sue Fastcase for violation of this clickwrap
contract in addition to any claims it has reserved after April 7, 2016.
Lawriter’s modification of the Secretary of State’s website prevents Fastcase
from updating the Georgia Regulations without appearing to breach the new
clickwrap “contract” unilaterally imposed by Lawriter. The law does not require
Fastcase to breach this “contract” to show a real and immediate controversy.
Replacing one set of claims to exclusive rights with another set of claims to
exclusive rights does not change this Court’s ability to declare that Lawriter cannot
exercise ownership rights over the Georgia Regulations. Whether Lawriter’s
claims sound in copyright, quasi-contract, or clickwrap contract, nearly two
centuries of consistent law and public policy prevent any person from having any
exclusive rights, under copyright, contract or any other theory, that can prevent
another from copying and publishing the public law of Georgia or of other states.
I. THE COURT HAS FEDERAL QUESTION JURISDICTION
This Court has federal question jurisdiction pursuant to 28 U.S.C., § 1331
and 1138(a) because Lawriter explicitly threatens to sue Fastcase for copyright
infringement if Fastcase updates the Georgia Regulations from the website of the
Georgia Secretary of State and distributes and publishes the Georgia Regulations
on a subscription basis to its users. Dkt. 20 at 2. Now that Lawriter has made that
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threat, federal question jurisdiction is clear whether or not the other claims
Lawriter threatens would be pre-empted by copyright.
Lawriter argues that jurisdiction cannot be based on copyright because
“Lawriter does not have a copyright registration.”
Dkt. 20 at 6.
However,
Lawriter insists that its website includes not only “the text and numbering of
regulations adopted by the State of Georgia” but also “additional copyrighted
material necessary to incorporate the statutory text and numbering into HyperText
Markup Language (‘HTML’).” Id. at 10. By explicitly threatening a copyright
infringement suit, in a pleading subject to Rule 11, Lawriter implies that
registration of its copyright is either already in progress or imminent. Therefore,
the scope of copyright pre-emption of non-copyright claims is no longer critical,
and Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859 (11th
Cir. 2008), is not an obstacle to the exercise of jurisdiction in this dispute.
II. THE COURT HAS DIVERSITY JURISDICTION
The Court has diversity jurisdiction pursuant to 28 U.S.C., § 1332(a)(1),
because it is undisputed that, for purposes of diversity, Fastcase is a citizen of
Delaware and the District of Columbia while Lawriter is a citizen of Virginia. Dkt.
14 at 3, ¶¶ 8-9. The amount in controversy is indisputably greater than $75,000,
because Fastcase ordinarily updates its materials daily, and the new terms and
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conditions Lawriter seeks to impose on users of the Secretary of State’s website
requires users to agree in advance that each single violation of those terms would
cause Lawriter to “suffer damages of at least $20,000.” Dkt. 21 at 5.
The Supreme Court established long ago that:
The rule governing dismissal for want of jurisdiction in cases brought
in the federal court is that, unless the law gives a different rule, the
sum claimed by the plaintiff controls if the claim is apparently made
in good faith. It must appear to a legal certainty that the claim is
really for less than the jurisdictional amount to justify dismissal.
St. Paul Mercury Indemnity Co v. Red Cab Co., 303 U.S. 283, 288-289 (1938)
(footnotes omitted).
Fastcase alleges that it “has sold, or offered to sell, access to electronic
databases including the Georgia Regulations with a cumulative value in excess of
$75,000.” Dkt. 4 at 4, ¶ 10. Lawriter does not contend that Fastcase has made this
allegation in bad faith. Nor does Lawriter deny the factual truth of this allegation,
although Lawriter originally disputed its legal significance.1
The cost to Lawriter of creating and maintaining the Rules and Regulations
page of the Secretary of State’s website is entirely irrelevant. What matters is the
value of the rights involved. “In a diversity litigation the value of the ‘matter in
1
Lawriter’s Answer to ¶ 10 does not deny the fact alleged by Fastcase, but
denies its relevance.
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controversy’ is measured not by the monetary result of determining the principle
involved, but by its pecuniary consequence to those involved in the litigation.”
Thomson v. Gaskill, 315 U.S. 442, 447 (1942). Lawriter seeks to prevent Fastcase
from publishing the Georgia Regulations to its subscribers, and the amount in
controversy is the value of the business for which Lawriter hopes to evade
competition. That value is, indisputably, far more than the minimum amount of
harm Lawriter would suffer from a single unauthorized access to the website.
III. LAWRITER’S THREATS CREATE A JUSTICIABLE
CONTROVERSY
Between its demand letter, pleadings, and its new terms of use on the
Secretary of State’s website, Lawriter has articulated a variety of theories for
excluding others from lawfully using the Georgia Regulations. Declaratory relief
is designed to protect against exactly this sort of shifting ground. “[V]oluntary
cessation of offensive conduct will only moot litigation if it is clear that the
defendant has not changed course simply to deprive the court of jurisdiction.”
Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005).
Lawriter argues that the controversy is moot because it has promised not to
sue for anything that happened before April 7, 2016. Yet Lawriter insists that it
could still sue Fastcase at any time for updating its collection of the Georgia
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Regulations after April 7; the only change would be Lawriter’s legal theory.
A. Lawriter Has Not Ceased Its Threats Against Fastcase
Lawriter implicitly acknowledges that the law is against it on this point:
The voluntary-cessation doctrine recognizes that a controversy
becomes moot when the defendant voluntarily ceases the actions that
gave rise to the controversy. See Already, LLC v. Nike, Inc., 133 S.Ct.
721, 727, 184 L.Ed 2d 553 (2013). In order to employ this doctrine,
“a defendant claiming that its voluntary compliance moots a case
bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to
recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 190 (2000).
Dkt. 20 at 8.
Far from “showing that it is absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur,” Lawriter confirms and even extends its
threats against Fastcase:
[I]f Plaintiff were allowed to amend or supplement its Complaint to
state a claim based on the period after April 7, 2016, Lawriter would
present a claim for breach of contract that would not be preempted by
the Copyright Act, along with a claim for copyright infringement,
depending on whether Plaintiff copied any materials authored by
Lawriter.
Dkt. 20 at 2.
The Supreme Court has identified two criteria that must be met for an
asserted “voluntary cessation” to moot a controversy:
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(1) it can be said with assurance that “there is no reasonable
expectation . . .” that the alleged violation will recur [citations], and
(2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation [citations].
Los Angeles County v. Davis, 440 U.S. 625, 631 (1979).
Lawriter has not satisfied either condition. The “timing and content” of a
“voluntary cessation” are instructive in determining whether a party has
“completely and irrevocably” rendered itself incapable of continuing or repeating
the challenged conduct:
As for timing, a defendant’s cessation before receiving notice of a
legal challenge weighs in favor of mootness, . . . while cessation that
occurs “late in the game” will make a court “more skeptical of
voluntary changes that have been made.” . . . With respect to content,
we look for a well-reasoned justification for the cessation as evidence
that the ceasing party intends to hold steady in its revised (and
presumably unobjectionable) course.
Harrell v. The Fla. Bar, 608 F.3d 1241, 1266 (11th Cir. 2010) (dispute not moot
where the circumstances “raise a substantial possibility that ‘the defendant has ...
changed course simply to deprive the court of jurisdiction,’ which itself prevents us
from finding the controversy moot”) (quoting Nat’l Advertising, 402 F.3d at 1333).
1.
Lawriter’s timing indicates an effort to avoid jurisdiction
Here, Lawriter’s change of position occurred not only after Fastcase filed
this action, but even after Lawriter filed its original Answer and Counterclaims.
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Dkt. 13. Only after Lawriter realized that it had neither legal nor factual basis for
its demand letter did it change the Secretary of State’s website to attempt to impose
new “Terms of Use.” Lawriter’s change manifests an attempt to strengthen its
position in the controversy with Fastcase, not to make the controversy go away.
The addition of these “Terms of Use” demonstrates that Lawriter intends to
maintain its claims to exclude fastcase from legal use of the Georgia Regulations.
2. The scope of the covenant is limited, and excludes the current controversy
Lawriter’s covenant not to sue does not resolve the controversy, but merely
waives only the original counterclaims. See Dkt. 20-1 at 4, ¶ 11, and 15-16. It is
an attempt to bypass this lawsuit so Lawriter may sue under a different posture at a
time and venue of its own choosing. Lawriter still threatens suit for anything done
since April 7, 2016, two months before Lawriter executed the covenant.
The reason Lawriter cannot claim copyright protection is not peculiar to the
copyright statute, but is inherent in the due process rights of a free society.
Imposing a new “Terms of Use” requirement on the Secretary of State’s website,
in an attempt to create by contract rights that Lawriter concedes it cannot have by
copyright, does not change the fact that Lawriter claims exclusive rights in legal
materials which must by law and public policy remain free to all, as set forth at
length in Fastcase’s original brief, and not disputed or denied by Lawriter.
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Lawriter cannot acquire by contract with the Secretary of State any greater
power to exclude others than Michie did by its contract with the Code Revision
Commission, which was conclusively held to be insufficient to give an exclusive
franchise as to the publication of laws in Georgia. Harrison Co. v. Code Revision
Commission, 244 Ga. 325, 329 (1979).
The U.S.Supreme Court’s decision in Already v. Nike, relied on by Lawriter,
involved a broader covenant, which promised not to sue even for future conduct
implicating the same basic issue. 133 S.Ct. at 725. That case was “moot because
the challenged conduct cannot reasonably be expected to recur.” Id. at 729. This
case is very different.
Here, Fastcase has manifest an intention to continue
accessing the text of the Georgia Regulations from the website of the Secretary of
State, and Lawriter has manifest an intention to sue if this Court does not declare
that it may not. In short, the “voluntary cessation” of Lawriter’s original threat
does not end the story because that threat has simply been replaced by a new one.
3.
Lawriter cannot offer a “well-reasoned justification for the cessation”
Lawriter has offered no reason at all for its partial “cessation,” let alone a
well-reasoned one. In light of the Eleventh Circuit’s directive in Harrell v. The
Fla. Bar, 608 F.3d 1241, 1266 (11th Cir. 2010) that a case should not be found
moot in the absence of a “well-reasoned justification for the cessation,” it might be
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worth noting that Lawriter’s newest efforts to prevent Fastcase from copying and
publishing the Georgia Regulations, by modifying the Secretary of State’s website,
is so badly reasoned that it appears to violate Lawriter’s contract with the State.
See Dkt. 20-1 at 8, ¶ (D)(1) (prohibiting registration requirements of any kind).
B. Declaratory Relief is Appropriate on the Current Pleadings
Lawriter contends that Fastcase must amend its pleadings to allege a new
threat based on the new “Terms of Use” Lawriter has written into the Secretary of
State’s website. Dkt. 20 at 2. Lawriter’s new threat is well within the scope of the
current complaint, which alleges:
1.
This is a civil action in which Fastcase seeks declaratory
judgment pursuant to 28 U.S.C. §§ 2201 and 2202, preliminary and
permanent injunctive relief, and other necessary and proper relief,
enjoining Defendant Lawriter, LLC (“Defendant” or “Lawriter”) from
acting in such a manner as to impede Fastcase’s publication of (a) the
Georgia Administrative Rules and Regulations (the “Georgia
Regulations”) or (b) any other state or federal laws, rules or
regulations.
Dkt. 4 at 1, ¶ 1.
Actually entering into, and breaching, the clickwrap “contract” Lawriter now
threatens to enforce, is not essential to declaratory jurisdiction:
In such a situation, a party to a contract is not compelled to wait until
he has committed an act which the other party asserts will constitute a
breach, but may seek relief by declaratory judgment and have the
controversy adjudicated in order that he may avoid the risk of damages
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or other untoward consequence.
Keener Oil & Gas Co. v. Consolidated Gas Utilities Corp., 190 F.2d 985, 989
(10th Cir. 1951).
The controversy does not have to remain exactly the same in every detail
from the moment it begins to the final judgment. It is enough that a party might be
subjected to repeated claims, yet any request for declaratory relief might be
otherwise mooted by updating the basis for the claims.
The “capable of repetition, yet evading review” exception to the
mootness doctrine applies where (1) the challenged action is in its
duration too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same complaining
party will be subject to the same action again.
Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1343 (11th Cir. 2014) citing Davis v.
FEC, 554 U.S. 724, 735 (2008).
Fastcase should not be obliged to change its pleadings, let alone file a new
lawsuit, every time Lawriter adjusts its tactics, as long as Lawriter continues to
threaten to sue Fastcase for legal collection and publication of the Georgia
Regulations. “Otherwise, a defendant could engage in unlawful conduct, stop
when sued to have the case declared moot, then pick up where he left off, repeating
this cycle until he achieves all his unlawful ends.” Already v. Nike, 133 S.Ct. 721,
727 (2013).
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Thus, Fastcase’s plea for declaratory judgment, that Lawriter simply cannot
exclude others from using public law, remains as vital on the basis of the new
threats Lawriter has pleaded as it was on the basis of the original threat. A grant of
summary judgment by this Court would resolve all Lawriter’s claims to exclusivity
in the Georgia Rules and Regulations, regardless of legal theory.
IV. THERE ARE NO DISPUTES OF MATERIAL FACT IN THIS CASE
Fastcase is entitled to summary judgment because there are no issues of
material fact in controversy. Fastcase’s own pleadings show that the Georgia
Secretary of State’s website is the source of its updates. The Court may declare
that Lawriter may not sue Fastcase, as a matter of law, under copyright or contract,
on the face of the pleadings in this case.
Lawriter claims that “There Remain Disputes of Material Fact and
Additional Discovery is Needed…Related to pre-April 7, 2016 Copying.” Dkt. 20
at 9 (emphasis added). However, Lawriter has made very clear that it will not
pursue anyclaims relating to pre-April 7, 2016, copying. Dkt. 20 at 3 and 7-9.
This motion seeks a declaration that, as a matter of law, even after April 7,
2016, Lawriter still has no right to prevent Fastcase from copying the Georgia
Regulations from the Secretary of State’s website and republishing them to its own
subscribers. There are no facts in dispute; the Court can rule as a matter of law
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without factual discovery.
Lawriter suggests that factual issues might exist because Fastcase might have
copied something other than the unprotectable Rules and Regulations, such as
HTML that displays paragraph breaks or italics in web browsers.
However,
Lawriter has not shown any evidence that it has any copyright in such material. To
defeat summary judgment, the nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Ind. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). There are no triable
issues of fact with regard to the copying and republishing of the text and
numbering of the Georgia Regulations themselves. Summary judgment in favor of
Fastcase is appropriate and should be ordered.
V. CONCLUSION
Lawriter has attempted to assert rights it does not have in Georgia’s public
Rules and Regulations. It has sent a demand letter to Fastcase demanding that
Fastcase cease lawful use of this body of public law, under threat of lawsuit.
Fastcase has asked this Court to declare that Fastcase’s collection and publication
of the Georgia Regulations was and is lawful. Lawriter has attempted to evade this
declaration by challenging the Court’s jurisdiction, retracting some threats of suit,
and creating new “Terms of Use” that claim in contract rights to which Lawriter is
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not legally entitled, in an attempt to block a competitor from using public law.
No matter what conditions it purports to require for access to the official
website of Georgia’s Secretary of State, Lawriter simply has no right to control or
limit access to the official text of the Georgia Regulations. This Court can and
should adjudicate that Lawriter’s attempts to do so are improper and unlawful.
Nearly two centuries of uniform law and public policy, recognized by the Supreme
Courts of Georgia and the United States, as well as by many other courts,
precludes any limitation on copying or republication of public law. So long as
Lawriter asserts claims of exclusivity, Fastcase will remain under threat of lawsuit
for its legal use of the Georgia Regulations.
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.
Respectfully submitted this 5th day of July 2016.
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
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/s/ Robert G. Brazier
Robert G. Brazier (Georgia Bar No. 078918)
rbrazier@bakerdonelson.com
Steven G. Hall (Georgia Bar No. 319308)
shall@bakerdonelson.com
Joshua Tropper (Georgia Bar No. 716790)
jtropper@bakerdonelson.com
Monarch Plaza, Suite 1600
3414 Peachtree Road N.E.
Atlanta, GA 30326
Telephone (404) 577-6000
Facsimile (404) 221-6501
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
rbrazier@bakerdonelson.com
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CERTIFICATE OF SERVICE
I hereby certify that on July 5, 2016, I electronically filed the within and
foregoing REPLY MEMORANDUM 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)
kurt.rozelsky@smithmoorelaw.com
Joseph W. Rohe (Bar No. 727154)
joseph.rohe@smithmoorelaw.com
Smith Moore Leatherwood LLP
2 West Washington Street, Suite 1100
P.O. Box 87
Greenville, SC 29602
This 5th day of July, 2016.
BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWITZ, P.C.
/s/ Robert G. Brazier
Robert G. Brazier
Georgia Bar No. 078918
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