<b><i>Online Extra</b></i><br>Free Online Access to Georgia's Legal Code Violates Copyright, Judge Says

And, he reflected, “When life gives you peaches, make Scotch and water.”

Two years ago, Georgia's Code Revision Commission sued Malamud's organization, claiming the nonprofit's free distribution of the Official Code of Georgia Annotated infringed a state copyright of the only official version of the Georgia legal code. Public.Resource.Org bought all 186 volumes and supplements of the code), scanned them and then made them available to the general public online and in digital format free of charge.

According to the state, Public.Resource.Org's infringement rested on the annotations, case summaries, legislative history and other notations published as guidance with Georgia's public statutes.

Malamud — who is represented by Alston & Bird counsel Elizabeth Rader in Washington and Jason Rosenberg in Atlanta — countersued, claiming state laws are not copyrightable and fall well within the public domain. He also said that Public.Resource.Org had published the Georgia code as part of its mission to promote and protect the right of the public to know, and have free access to, the laws that govern them.

Malamud has worked for more than three decades on the public access issue and founded Public.Resource in 2007. Among other things, he helped to persuade the U.S. Securities and Exchange Commission to make EDGAR, its database of corporate filings, free to the general public. In 2014, he testified before the U.S. House of Representatives and the House Judiciary Committee in favor of an amendment to federal copyright laws that would make state and local official legal documents uncopyrightable as a matter of public policy.

“My position on this has always been clear,” he said this week. “I don't really care about the [annotated] case summaries, but they are part and parcel of the Official Code of Georgia.” The very first law in the official state code, he said, warns that anyone who consults and relies on unofficial compilations of the code — which he said includes the unannotated, unofficial version that is available through the state General Assembly's website — does so at his or her peril.

The state and the code commission were represented by Anthony Askew of Atlanta's Meunier Carlin & Curfman. Askew declined comment. Michael D. Hobbs of Troutman Sanders represented LexisNexis, which has an exclusive contract with the state to publish the annotated code and sell it in print and in electronic format. In return, Lexis pays the state royalties and makes an unannotated version of the state code available online for free through the state Legislature's website.

Hobbs said LexisNexis “thinks its a very good decision. It reinforces the long-standing rule of law that annotations are copyrightable and it also upholds the fact that fair use does not provide cover for use of these annotations as made by Public.Resource.Org.

During the litigation, both sides agreed that Georgia laws and their statutory numbering by volume, title and section are not copyrightable. But they disagreed over whether Malamud could publish online all of the annotated texts included in the Official Code of Georgia Annotated, including summaries of public judicial decisions, notes on law review articles and summaries of opinions by the state attorney general. Those annotations are compiled by LexisNexis publisher Matthew Bender and Co. Inc. In a March 23 order, U.S. District Judge Richard Story acknowledged the “unusual circumstances” in Georgia where the only official version of the state legal code includes annotations. Most official state codes are not annotated, and most annotated codes are not official, Story observed. In addition, he said, the U.S. Copyright Office has a long-standing policy of rejecting registrations of “a government edict” issued by any state that carries “the force of law.”

But Story still found for the state, resting his ruling on “a long line of cases” extending copyright protection to annotations, citations and notes that are not part of the actual text of the law. “The creation of the annotations requires a tremendous amount of work from a team of editors,” he said. “These efforts confirm that the annotations are original works entitled to broad copyright protection.”

Malamud's organization, Story added, “misappropriated every single word of every annotation using a bulk industrial electronic scanner.”

Story also rejected Malamud's contention that his publication of Georgia's legal code was solely for educational purposes and so constituted a fair use that did not infringe the state's copyright. The judge said a number of courts have decided that copyrighted works republished by a nonprofit group for noncommercial educational purposes might still generate other tangible benefits that would violate the fair use provisions of federal copyright laws.

Public.Resource.Org “is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials,” Story said. Because the organization “profits” from the attention, recognition and contributions it receives in connection with distributing the copyrighted annotated Georgia code, the judge said the nonprofit could not sidestep the state's copyright by claiming an educational exemption, Story concluded.

Story also said the state had established a market for the annotated state code that would be “substantially adversely impacted” if Malamud were permitted to continue make the annotated code available for free.

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R. Robin McDonald writes for the Daily Report, an ALM sibling of Internet Law & Strategy.

One day after a federal judge in Atlanta ruled that the state of Georgia may copyright its official legal code and pursue infringers, a California public records activist who had made Georgia's code available for free to the general public began work on an appeal.

Carl Malamud, president of Public.Resource.Org, Inc., also notified his 11,500 Twitter followers that his site hosting free copies of the annotated Georgia code — which the state has acknowledged is the only official version of its laws — has, for now, gone dark.

“Important with court ruling to either obey or disobey,” he tweeted. “No in-between. No games.”

And, he reflected, “When life gives you peaches, make Scotch and water.”

Two years ago, Georgia's Code Revision Commission sued Malamud's organization, claiming the nonprofit's free distribution of the Official Code of Georgia Annotated infringed a state copyright of the only official version of the Georgia legal code. Public.Resource.Org bought all 186 volumes and supplements of the code), scanned them and then made them available to the general public online and in digital format free of charge.

According to the state, Public.Resource.Org's infringement rested on the annotations, case summaries, legislative history and other notations published as guidance with Georgia's public statutes.

Malamud — who is represented by Alston & Bird counsel Elizabeth Rader in Washington and Jason Rosenberg in Atlanta — countersued, claiming state laws are not copyrightable and fall well within the public domain. He also said that Public.Resource.Org had published the Georgia code as part of its mission to promote and protect the right of the public to know, and have free access to, the laws that govern them.

Malamud has worked for more than three decades on the public access issue and founded Public.Resource in 2007. Among other things, he helped to persuade the U.S. Securities and Exchange Commission to make EDGAR, its database of corporate filings, free to the general public. In 2014, he testified before the U.S. House of Representatives and the House Judiciary Committee in favor of an amendment to federal copyright laws that would make state and local official legal documents uncopyrightable as a matter of public policy.

“My position on this has always been clear,” he said this week. “I don't really care about the [annotated] case summaries, but they are part and parcel of the Official Code of Georgia.” The very first law in the official state code, he said, warns that anyone who consults and relies on unofficial compilations of the code — which he said includes the unannotated, unofficial version that is available through the state General Assembly's website — does so at his or her peril.

The state and the code commission were represented by Anthony Askew of Atlanta's Meunier Carlin & Curfman. Askew declined comment. Michael D. Hobbs of Troutman Sanders represented LexisNexis, which has an exclusive contract with the state to publish the annotated code and sell it in print and in electronic format. In return, Lexis pays the state royalties and makes an unannotated version of the state code available online for free through the state Legislature's website.

Hobbs said LexisNexis “thinks its a very good decision. It reinforces the long-standing rule of law that annotations are copyrightable and it also upholds the fact that fair use does not provide cover for use of these annotations as made by Public.Resource.Org.

During the litigation, both sides agreed that Georgia laws and their statutory numbering by volume, title and section are not copyrightable. But they disagreed over whether Malamud could publish online all of the annotated texts included in the Official Code of Georgia Annotated, including summaries of public judicial decisions, notes on law review articles and summaries of opinions by the state attorney general. Those annotations are compiled by LexisNexis publisher Matthew Bender and Co. Inc. In a March 23 order, U.S. District Judge Richard Story acknowledged the “unusual circumstances” in Georgia where the only official version of the state legal code includes annotations. Most official state codes are not annotated, and most annotated codes are not official, Story observed. In addition, he said, the U.S. Copyright Office has a long-standing policy of rejecting registrations of “a government edict” issued by any state that carries “the force of law.”

But Story still found for the state, resting his ruling on “a long line of cases” extending copyright protection to annotations, citations and notes that are not part of the actual text of the law. “The creation of the annotations requires a tremendous amount of work from a team of editors,” he said. “These efforts confirm that the annotations are original works entitled to broad copyright protection.”

Malamud's organization, Story added, “misappropriated every single word of every annotation using a bulk industrial electronic scanner.”

Story also rejected Malamud's contention that his publication of Georgia's legal code was solely for educational purposes and so constituted a fair use that did not infringe the state's copyright. The judge said a number of courts have decided that copyrighted works republished by a nonprofit group for noncommercial educational purposes might still generate other tangible benefits that would violate the fair use provisions of federal copyright laws.

Public.Resource.Org “is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials,” Story said. Because the organization “profits” from the attention, recognition and contributions it receives in connection with distributing the copyrighted annotated Georgia code, the judge said the nonprofit could not sidestep the state's copyright by claiming an educational exemption, Story concluded.

Story also said the state had established a market for the annotated state code that would be “substantially adversely impacted” if Malamud were permitted to continue make the annotated code available for free.

*****
R. Robin McDonald writes for the Daily Report, an ALM sibling of Internet Law & Strategy.