A federal judge in Georgia has ordered Public Resource to remove Georgia’s official statutes from its website, finding that the state of Georgia holds a valid copyright in them and that Public Resource’s publication was not fair use.

This is the second loss this year for Public Resource in its efforts to make primary legal materials freely available to the public. In February, a federal court issued an injunction barring Public Resource from publishing technical and scientific standards incorporated by reference in the Code of Federal Regulations. (See: In Blow to Open Law, Court Upholds Private Copyright in Public Safety Laws.)

At issue in this latest case was the Official Code of Georgia Annotated, which is designated by the Georgia legislature as the official version of the state’s laws. The Georgia Code Revision Commission contracts with LexisNexis to publish the OCGA. Pursuant to that agreement, LexisNexis adds annotations, editorial notes, cross-references, research references and other enhancements.

LexisNexis sells the OCGA for $395. It publishes an online version that is free, but that omits the annotations.

In 2013, Carl Malamud, CEO of Public Resource, paid $1,207.02 to purchase the entire print set of the OCGA. He then scanned the set and posted it to his site. He also sent copies on thumb drives to various Georgia legislative officials. Soon thereafter, the chair of the Georgia Code Revision Commission sent Malamud a take-down demand. When Malamud refused, the Georgia legislature the commission filed suit in federal court in Atlanta.

Malamud defended his publication on two grounds. First, he argued that the OCGA could not be copyrighted because of the unusual circumstances in Georgia by which the annotated version is also the official version. Second, he argued that, even if the OCGA is copyrightable, his publication was fair use.

In an opinion issued March 23, U.S. District Judge Richard W. Story disagreed on both arguments.

On the copyright question, Story held that a long line of cases recognizes copyright protection for annotated cases and statutes. The unusual circumstances here do not change that, he said.

The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material.

On fair use, Story conducted a multi-part analysis to conclude that Malamud’s publication was not fair use. Interestingly, as part of that analysis, Story found that Public Resource’s use was not for a “nonprofit educational purpose” but for a “commercial purpose.”

Public Resource is a non-profit and does not sell access to the materials it publishes. But the judge found it was commercial nonetheless.

In this case. Defendant’s business involves copying and providing what it deems to be “primary legal materials” on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant “profits” by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational.

The full opinion is available — where else? — at the Public Resource site.

It can be difficult to keep up with the folks at Public.Resource.Org and their efforts to put as much law as possible into the public domain. I’ve written before about their successes in putting caselaw in the public domain. The latest release, Codes.gov, publishes critical state and municipal public safety codes from all across the country.

These are building, electrical, plumbing, elevator, mechanical and fire codes, among others. Included are codes from every state, although not every code from every state. They are working on that.

Also here are the full California Code of Regulations and the full administrative code of Sonoma County, Calif., where Public.Resource.Org is based. Previously, these have been available only through private publishers that claim copyrights in them.

That copyright issue may come to a head at some point. Public.Resource.Org spent some $20,000 buying these codes in order to post them online. It takes the position that they cannot be subject to copyright. They’ve even created an illustrated storybook detailing their case, which you can find at the Codes.gov link.

The launch of the Legal Information Institute at Cornell Law School in 1992 was the first giant step towards making legal information available to the public via the Internet. A year later, inspired by Cornell’s LII, the Canadian LII was born. Today, there are 14 Legal Information Institutes throughout the world. A new, 19-minute video traces the history of these LIIs through revealing interviews with their founders and staff. It was produced by CanLII. Tom Bruce, director of the Cornell LII, has posted them on YouTube in three parts:

I’ve had several posts in recent months about various efforts to move caselaw into the public domain and, once there, to make it more accessible. I also had a recent article about this in Law Technology News, Online Legal Research Revolution. Now, some updates:

  • David Hobbie at his blog Caselines puts public-domain search engine PreCYdent to the test and “was stunned” by the results. “I have never seen such a highly relevant set of search results on any electronic case search engine. Not in Westlaw. Not in Lexis. Not anywhere.”
  • Meanwhile, PreCYdent has moved from alpha to beta with a release it describes as more stable. Its recent newsletter (sent to everyone who registers) says it is working hard to extend its database to all state jurisdictions. It has also added a Government Printing Office archive of 1.3 million documents and a database of legal forms.

My post yesterday, Case Law Libre!, pointed to the registration-required Law Technology News version of the article. Today, Law.com posted it on the Legal Technology page, where no registration is required.

Also, I heard today from Thomas Smith, the University of San Diego School of Law professor who serves as CEO of the experiment legal search engine PreCYdent, which I discuss in the article. I wrote that PreCYdent “came about through the work” of Smith. He corrects me:

“I should note that my work on PreCYdent has been but a small fraction of the work done by Antonio and his team in Italy. I had a notion that something like the technology they created could be created, but they are the ones who built it. I’m a lawyer with undergraduate degrees in philosophy and economics, not a computer scientist. So my team really deserves the credit for our search technology, which is our unique contribution. So saying that PreCYdent came about through my work, overstates my role.”

Antonio is Antonio Tomarchio, CTO of PreCYdent. I recently posted Tomarchio’s video showing how to use PreCYdent.

My latest Web Watch column for Law Technology News magazine, Case Law Libre (free reg. required), looks at several recent projects to move case law into the public domain, from Public.Resource.Org to Alt-Law to PreCYdent. Here are the opening grafs:

“Feb. 11, 2008 was a day that may forever change the course of online legal research. On that day, the non-profit Public.Resource. Org published 1.8 million pages of federal case law online, free of copyright or other restrictions. The release included all U.S. Supreme Court cases and all federal circuit decisions since 1950.

“Ever since 1872, when John West hit upon the idea of building a business around publishing court decisions, commercial publishers have maintained a firm hold on the dissemination of judicial opinions. Not to knock them — legal publishers filled an essential niche and continue to provide valuable and necessary products.

“But in this information age, private control over the distribution of public case law seems anachronistic. For nearly two decades, gradual progress has been made towards greater public access. But the Public.Resource.Org release is just one of several developments whose convergence suggests that this trend is accelerating.”

The day we previewed here last week has arrived: The non-profit organization Public.Resource.Org today released 1.8 million pages of federal case law free of copyright or other restrictions, in a joint venture with Creative Commons. The release includes all Supreme Court cases and all Courts of Appeals decisions from 1950 on. According to the press announcement, the data is available for download by developers for use on the Internet.

“The cases made available to developers today will be used throughout the Internet. For example, the AltLaw service from Columbia and Colorado Law Schools has announced they will incorporate the information in their free service. Creative Commons and Public.Resource.Org are donating a copy of the data to the U.S. Courts and the Government Printing Office for their archives. A number of commercial legal research providers have announced they will also incorporate this data in their services.”

The announcement said that the purchase of the data was made possible by contributions from a group that includes the Omidyar Network, the Elbaz Family Foundation, entrepreneur and civil libertarian John Gilmore and lawyer David Boies.

Although the cases can be browsed through the Public.Resource.org site, there is no direct mechanism for searching them. As Google begins to index them over the next few days, you should be able to search using its “search this site” function.

Links:

I reported here in November that 1.8 million pages of federal case law would go public early in 2008 through an agreement between Carl Malamud’s nonprofit organization Public.Resource.Org and the legal research company Fastcase. Today, Malamud said the release of those cases is scheduled for next week. The release will include all cases included with the U.S. Reports, all federal appellate cases in the F.3d series of the Federal Reporter and most of F.2d. All cases will be formatted in XML with digital signatures and public domain labels. Malamud also said that two other companies have made substantial donations of case law to be added to the public domain database, Justia and William S. Hein & Co.

I can barely keep up with the efforts of Carl Malamud and his public.resource.org to “liberate” government documents. (See 1.8M Pages of Federal Case Law to Go Public and More Government Docs to Go on Web.) The latest project: Recycle Your Used Pacer Documents!. PACER, of course, is the federal judiciary’s system for obtaining case and docket information electronically. The acronym stands for Public Access to Court Electronic Records, but that public access comes with a catch — a registration requirement and a user fee of 8 cents per page.

The folks at public.resource.org believe that PACER’s registration requirement and fees create needless obstacles to public access. The idea behind this site is to provide a way for PACER users to upload and share the documents they download from PACER, making them available to others without cost. The site’s operators will review the uploads and post them in bulk.resource.org for future use. (They do this manually, they say, so don’t expect your uploads to appear immediately.) Once added to the system, documents are listed by court and then by docket number. It appears to be searchable on at least a limited basis using Google’s search-this-site feature (e.g.: “site:bulk.resource.org queryterm queryterm”).