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Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws

When we last checked in with Carl Malamud and his Public.Resource.Org, they were celebrating a huge victory in Georgia, where the 11th Circuit had ruled that of course Malamud was not infringing on anyone's copyrights in posting the "Official Code of Georgia Annotated" (OCGA) because there could be no copyright in the law. As we explained at length in previous posts, Georgia has a somewhat bizarre system in which the only official version of their law is the "officially" annotated version, in which the annotations (with citations to caselaw and further explanations) are written by a private company, LexisNexis, which then transfers the copyright (should one exist) on those annotations to the state.

Malamud, of course, has spent years, trying to make it easier for people to access the law -- and that means all of the law, not just some of it. So when he posted a much more accessible version of the OCGA, the state sued him for copyright infringement. While the lower court ruled that the OCGA could have copyright, that the State of Georgia could hold it and that Malamud's work was not fair use, the 11th Circuit tossed that out entirely, saying that since the OCGA was clearly the only official version of the law, there could be no valid copyright in it.

It was a pretty thorough and complete win. And, if the state of Georgia were mature and reasonable, you'd think that they'd (perhaps grudgingly) admit that anyone should have access to its laws and move on. But, this is the state of Georgia we're talking about. And, it appears that the state has decided that rather than taking the high road, it's going to act like a petty asshole.

Last week Malamud sent a letter describing how the state is now trying to block him from purchasing a copy of the OCGA. He's not looking for a discount or any special deal. He wants to buy the OCGA just like anyone else can. And the state is refusing to sell it to him, knowing that he's going to digitize it, put it online and (gasp) make it easier for the residents of Georgia to read their own damn laws:

I have sent numerous emails and placed numerous calls to my sales representative at the LexisNexis, who has not responded (my account was terminated by LexisNexis during the litigation). I’ve tried reaching out on Twitter, as have numerous others on that social media platform. Again, no response. My lawyer called the LexisNexis lawyer who said I could buy the code only if I paid the full rack rate—which I readily agreed to do—and then he promptly dropped the matter. I wrote to Mr. Russell who said on November 19, 2018 that he would “look into that matter,” and you have clearly not looked very long or very hard as I have not heard back from anybody.

When the Honorable Richard W. Story of the United States District Court for the District of Georgia issued a March 13, 2017 opinion granting summary judgement to the State of Georgia, within hours I removed all trace of the OCGA itself, and all mention of the OCGA from my web sites and from all web sites around the net. I did not wait for the April 7, 2017 permanent injunction to be issued, I complied immediately because I respect our system of justice, because I respect the rule of law, and because I respect our courts.

This is in sharp contract to your own behavior, ignoring the clear and unambiguous ruling of the United States Court of Appeals. Your behavior is an insult to the Court. I understand the State of Georgia will be appealing their decision, and we look forward to meeting you in the Supreme Court of the United States to argue our position. Until then, however, both the State of Georgia and your foreign-based vendor have an obligation to obey the law of the United States.

It appears that this is par for the course for the real life grownups who work for the State of Georgia:

Mr. Ruskell, your game of “hide the code” brings dishonor on the people of Georgia, who you are handsomely paid to serve. I have been attempting to discuss this issue with your office since May 13, 2013, and not once has anybody deigned to talk to me. When you filed suit on July 21, 2015, your complaint included bizarre accusations that my behavior was a form of “terrorism.” After you won summary judgment, you filed an April 21, 2017 motion for fees explaining to the court that I needed to be punished and made an example of to dissuade others from attempting to make the laws available without first obtaining prior permission from your vendor.

The letter also addresses Anders Ganten of LexisNexis (owned by the RELX Group, a company based in the UK):

Mr. Anders, your corporation, with its immense resources and technical capabilities, can easily make money through all manner of legitimate value-added products without exercising arbitrary control over the content your office seeks to “acquire.” As a vendor to the State of Georgia, you join them in the role of trustee on behalf of the people. Your corporation often boasts of the unparalleled information technology at your disposal that provides superior services to law firms and legal professionals. You have no need to engage in this subterfuge and behind-the-scenes lobbying, and it is unconscionable for you to flout the law of the United States as you have done by refusing to make the OCGA available to me. If your foreign corporation wishes to do business in the United States, you should respect our legal system and you must show respect for the pronouncements of our judges.

No matter how you look at this, it appears that LexisNexis, together with the State of Georgia, are acting like petty tyrants, ignoring a court order -- but even worse, they are refusing to sell a copy of their legal code (already a bizarre stance) out of fear that Malamud will make it easier for the public to read the laws. If you happen to be a Georgia citizen, maybe ask why your own government is trying to hide its laws from you...

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