244 F. Supp. 3d 1350
N.D. Ga.2017Background
- The Code Revision Commission (Commission) contracted with Matthew Bender/LexisNexis to publish the Official Code of Georgia Annotated (O.C.G.A.), which includes statutory text plus editorial annotations, indexes, summaries, and other non-statutory material under the Commission’s editorial control.
- The Agreement requires LexisNexis to produce both annotated (paid) and un-annotated (free) online statutory text; LexisNexis sells the annotated O.C.G.A. (print, CD-ROM, online) and royalties go to the Commission/publisher.
- Public.Resource.Org (Defendant) purchased, scanned, and posted complete volumes of the O.C.G.A. (including annotations) online and distributed copies to Georgia legislative offices; it encourages public copying and is funded by grants/contributions.
- Plaintiffs (Commission and LexisNexis) sued for copyright infringement and sought injunctive relief and removal of the materials; Defendant counterclaimed for a declaration of non-infringement.
- The parties stipulated that pre-2015 O.C.G.A. volumes are registered works; the court therefore treated copyright validity as prima facie established and addressed copyrightability and fair use defenses on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the O.C.G.A. annotations copyrightable? | Annotations are original editorial material entitled to copyright; Georgia law distinguishes statutory text from commentary. | Annotations in the official code are uncopyrightable because they are part of an official, enacted code or have merged with statutory text. | Held: Copyrightable; annotations are not enacted law, statutes and session laws distinguish them from statutory text, and merger doctrine inapplicable. |
| Does Defendant’s copying/posting qualify as fair use? | Plaintiffs argue copying is wholesale, non-transformative, harms established markets (print, CD, subscriptions), and thus is not fair use. | Defendant argues its nonprofit/public-access purpose and widened access supports fair use and that making legal materials broadly available is transformative. | Held: Not fair use; Defendant’s use is verbatim/non-transformative, confers indirect benefits, uses entire annotations, and likely supplants Plaintiffs’ markets — three of four fair-use factors favor Plaintiffs. |
Key Cases Cited
- Callaghan v. Myers, 128 U.S. 617 (opinion recognizing publisher copyright in annotated legal reporters)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (originality requires only a modicum of creativity)
- Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (fair use analysis and profit/nonprofit considerations)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (transformative use and weighing fair-use factors)
- Peter Letterese & Assocs. v. World Inst. of Scientology Enters., Int’l, 533 F.3d 1287 (Eleventh Circuit fair-use guidance)
- Cambridge Univ. Press v. Patton, 769 F.3d 1232 (Eleventh Circuit on market effect and nature of work in fair-use analysis)