Federal judge set to decide legal battle over online posting of Georgia’s laws

A federal judge is set to decide a legal battle pitting a group of open government advocates against Georgia’s Legislature.

The General Assembly’s Code Revision Commission sued Carl Malamud and his nonprofit public.resource.org last summer after the group posted a copy of Georgia’s official state code to its website. Malamud responded with a countersuit of his own and claimed that his online version of the code was more accessible and friendly to web developers than the state’s. Both sides filed motions in federal court Tuesday, with each asking a judge for a summary judgment in their favor to put the matter to rest before it can head to a jury.

The state is hoping the court will compel Malamud to pull the code off his website. While the text of Georgia’s laws is free for anyone to copy, the lawmakers claim the annotations and summaries of legal opinions attached to the code are creative works protected by copyright. They say that the materials are the intellectual property of the legal research company LexisNexis, which contracts with the state to publish the official version of the code and creates the annotations.

“It is clear,” they argue, “that the [code] annotations are not the law.” 

But Malamud argues that the state can’t claim copyright on its own law. In Tuesday’s motion, lawyers for Public Resource wrote that the copyright claim is “dubious” because the code is “an edict of government and creating the annotations is a core legislative function.”

They charged that the ancillary materials lack “sufficient creativity” to qualify for copyright, since they could only be written so many ways given their reliance on the state code itself. Additionally, Malamud’s lawyers point out that while unofficial versions of the code are available online on several state websites, only the version with the annotations attached is considered the “official” law of the land that lawyers must cite.

“There is no official code of Georgia that is not annotated,” the group wrote.

[Read more: Open gov advocates face obstacles when publishing state codes]

Even if the court considers the annotations protected by copyright, Malamud’s legal team argues that his posting of the material could be protected as “fair use,” or the publishing of copyrighted works for noncommercial educational means. Specifically, the group believes it’s performing a public service by making the code more freely available in a more useful format.

“Public Resource does not just want to save citizens a trip to the library or the cost of a LexisNexis product,” the lawyers wrote. “It also wants the [code] to be free for download so that people will be able to use the Internet and programming skills to create other websites that make the [code] even more useful to Georgia’s citizens and the general public. Making an official code available in bulk enables volunteers in the community to create a better web.”

The state pushed back against that claim, noting the annotated code is available on its own website and on an online database maintained by the University of Georgia. Georgia residents “have never had more access to the goings-on of Georgia government, its documents and its laws,” it said.

“[Public Resource’s] true impetus for its actions and this case is its perception of a lack of internet expertise on the part of the government at all levels and in multiple countries,” the commission’s lawyers wrote. “PR’s overall purpose may be laudable, increasing government transparency is good, but the problem arises when PR violates the copyrights of others to accomplish its purpose.”

They also charge that Malamud’s posting of the code will damage its business relationship with LexisNexis, undermining the group’s claim of fair use.

The commission’s lawyers said some volumes of the code have been copied by other users “over one thousand times” since Malamud published them, which could damage LexisNexis’ business model and make the low printing cost it charges the state unsustainable for the company. 

At its core, the group’s argument that it’s publishing the codes online for the benefit of the public is “a smokescreen,” the state argues. 

“This case is the culmination of a well-laid plan by public.resource.org to challenge in court a state’s ability to own a copyright in annotations of the state’s laws,” the commission wrote.

Meanwhile, Public Resource believes its publishing of the code won’t cause any substantial loss in revenue for the states. “Many other official state codes are available, in their entirety, on the internet, but the printed editions still sell well,” the group’s lawyers wrote. 

Malamud’s group blasted the state’s obstinance, reiterating that its intentions are noble.

“Only if the law is truly free and available can the state reasonably expect people and enterprises to obey the law, to know their rights under the law, and to evaluate and participate in the noble work of improving the law,” the group’s lawyers wrote.

Maria Savio, a partner with the intellectual property law firm Gottlieb, Rackman & Reisman, told StateScoop that she sees those as “pie in the sky arguments” and “a waste of time and resources.” She expects that the judge will ultimately rule in the state’s favor.

The court is set to decide on the pair of motions by June 13.

Contact the reporter at alex.koma@statescoop.com, and follow him on Twitter @AlexKomaSNG.