`
`No. 18-1150
`
`In the Supreme Court of the United States
`
`STATE OF GEORGIA, ET AL.,
`
`
`Petitioners,
`
`
`
`v.
`
`PUBLIC.RESOURCE.ORG.,
`
`Respondent.
`
`
`
`
`
`On Petition For A Writ Of Certiorari To The United
`States Court of Appeals For The Eleventh Circuit
`
`
`
`
`
`
`
`
`
`BRIEF FOR MATTHEW BENDER & CO., INC.
`AS AMICUS CURIAE IN SUPPORT OF
`PETITIONERS
`
`
`
`MISHA TSEYTLIN
` Counsel of Record
`MICHAEL D. HOBBS
`JOHN M. BOWLER
`AUSTIN D. PADGETT
`TROUTMAN SANDERS LLP
`One North Wacker Drive
`Suite 2905
`Chicago, Illinois 60606
`(312) 759-5947
`misha.tseytlin@troutman.com
`
` Counsel for Amicus Curiae
`
`
`
`
`
`
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`INTEREST OF AMICUS CURIAE .......................... 1
`
`INTRODUCTION AND SUMMARY OF
`ARGUMENT ................................................... 2
`
`ARGUMENT ............................................................. 4
`
`I.
`
`II.
`
`State-Owned Statutory
`Annotations, Created By Private
`Parties Under Contracts With
`The State, Are Deeply Valuable
`Both To States And To The
`Public .................................................... 4
`
`The Eleventh Circuit’s Approach
`Needlessly Destroys Economic
`Incentive To Create These
`Publicly Valuable Works,
`Contrary To This Court’s
`Precedents And The Core
`Purposes Of Copyright Law .............. 10
`
`CONCLUSION ........................................................ 16
`
`APPENDIX .............................................................. 1a
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`
`Callaghan v. Myers,
`128 U.S. 617 (1888) .......................................... 3, 12
`
`Howell v. Miller,
`91 F. 129 (6th Cir. 1898) .................................. 3, 10
`
`Lawrence v. Dana,
`15 F. Cas. 26 (C.C.D. Mass. 1869) ....................... 10
`
`Mazer v. Stein,
`347 U.S. 201 (1954) ........................................ 10, 12
`
`W.H. Anderson Co. v. Baldwin Law
`Pub. Co.,
`27 F.2d 82 (6th Cir. 1928) ................................ 3, 10
`
`Wheaton v. Peters,
`33 U.S. 591 (1834) ................................................ 12
`
`Statutes and Constitutions
`
`17 U.S.C. § 102 .......................................................... 10
`
`Colo. Rev. Stat. § 2-5-115 .......................................... 12
`
`O.C.G.A. §1-1-7 ............................................................9
`
`U.S. Const., Art. I, § 8, cl. 8 ...................................... 10
`
`
`
`
`
`iii
`
`Other Authorities
`
`Brooklyn Law Sch. Libr., Researching
`Statutes: Annotated Codes,
`http://guides.brooklaw.edu/c.php?g=
`330891&p=2222835 ..............................................5
`
`Copyright Office’s public catalog,
`http://bit.ly/2VTNDI9 .......................................... 11
`
`https://store.legal.thomsonreuters.com/l
`aw-products/Court-Rules/Westsreg-
`Code-of-Georgia-
`Annotated/p/100027635; ........................................7
`
`Jennifer Gilroy & Abby Chestnut, Who
`Owns the Law? The Colorado
`Perspective on Copyright and State
`Statutes (Apr. 6, 2017),
`https://legisource.net/2017/04/06/wh
`o-owns-the-law-the-colorado-
`perspective-on-copyright-and-state-
`statutes/ ................................................................ 13
`
`LexisNexis, Statutory Editorial Process,
`http://www.lexisnexis.com/document
`s/pdf/20170303045425_large.pdf ...................... 2, 4
`
`N. Ill. U. College of Law, Basic Legal
`Research, Forms of Publication of
`Statutory Law: Session Laws &
`Codes, Annotated Codes,
`https://libguides.niu.edu/c.php?g=42
`5200&p=2904735 ...................................................5
`
`
`
`
`
`iv
`
`Session Laws & Codes, Annotated
`Codes,
`https://libguides.niu.edu/c.php?g=42
`4252&p=2904735 ...................................................4
`
`Shawn G. Nevers, “Don’t
`Underestimate the Importance of
`Statutes,” ABA Student Lawyer, Vol.
`40, No. 2, October 2011,
`https://abaforlawstudents.com/2011/
`10/01/dont-underestimate-
`importance-statutes/ ..............................................5
`
`The Federalist No. 62 (James Madison),
`at 323–24 (George W. Carey &
`James McClellan eds., 2001) .................................4
`
`U.S. Copyright Office, Compendium of
`U.S. Copyright Office Practices (3d
`ed. 2017),
`https://www.copyright.gov/comp3/do
`cs/compendium.pdf .......................................... 2, 10
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICUS CURIAE*
`
` LexisNexis Group, through the publisher amicus
`
`Matthew Bender & Co., Inc. (hereinafter, together,
`“LexisNexis”), entered into a contract with the General
`Assembly of Georgia and the State of Georgia
`(hereinafter, together, the “Commission”), which
`requires LexisNexis to freely distribute the statutory
`texts of Georgia to the public, as well as research,
`create, manage, publish, distribute, update and license
`statutory annotations for those Georgia statutes. See
`Pet. App. A, 55a–56a. In exchange for these services,
`LexisNexis maintains exclusive license to sell the
`annotations at a capped fee, while providing free copies
`of the annotations to select libraries. See Pet. App. B,
`57a. As the creator and publisher of annotations in
`both Georgia and many other States and U.S.
`Territories, LexisNexis has unique knowledge
`regarding the issues in this case.
`
`
`* Counsel for all parties have consented to this filing and
`were given proper notice of amicus curiae’s intent to file a brief
`under Rule 37.2. Under Rule 37.6, amicus curiae affirms that
`no counsel for a party authored this brief in whole or in part, and
`no party or counsel for a party made a monetary contribution to
`fund the preparation or submission of this brief. No person or
`entity other than amicus curiae or its counsel made a monetary
`contribution to the brief’s preparation or submission.
`
`
`
`
`
`2
`
`INTRODUCTION AND SUMMARY OF
`ARGUMENT
`
`The Eleventh Circuit’s decision needlessly destroys a
`thriving market for the creation of State-owned
`annotations by private publishers, which benefits the
`public’s understanding of the law and does not impose
`greater taxpayer funding obligations by the States. The
`necessary consequences of the Eleventh Circuit’s
`unprecedented decision will either lead to the States no
`longer offering statutory annotations or spending
`substantial taxpayer dollars to fund such annotations’
`creation. The Eleventh Circuit’s decision will thus
`benefit no one, while undermining the core purpose of
`copyright law and the public’s understanding of the law.
`
`Twenty-three States and U.S. Territories have
`contracted with publishers like LexisNexis for the
`creation of statutory annotations. See LexisNexis,
`Statutory
`Editorial
`Process,
`http://www.lexisnexis.com/documents/pdf/2017030304
`5425_large.pdf (last visited April 1, 2019). These
`annotations provide great benefit to the public’s
`understanding of
`law.
` The creation of these
`annotations is an expensive, labor-intensive process,
`requiring a trained attorney to read judicial and agency
`decisions and make sensitive judgments about the
`annotations’ contents. Annotations provide users with
`a wealth of information about how the statutes came to
`be, how they have been interpreted by courts and
`agencies, and the like. These works have long been
`properly protected by copyright law, providing an
`
`
`
`
`
`3
`
`incentive for their creation. See Howell v. Miller, 91 F.
`129 (6th Cir. 1898); W.H. Anderson Co. v. Baldwin Law
`Pub. Co., 27 F.2d 82 (6th Cir. 1928); see U.S. Copyright
`Office, Compendium of U.S. Copyright Office Practices
`§§ 313.6(C)(2), 717.1 (3d ed. 2017) available at
`https://www.copyright.gov/comp3/docs/compendium.pd
`f (“[a] legal publication that analyzes, annotates,
`summarizes, or
`comments upon a
`legislative
`enactment, a judicial decision, an executive order, an
`administrative
`regulation,
`or
`other
`edicts
`of
`government may be registered as a non-dramatic
`literary work”); see also Callaghan v. Myers, 128 U.S.
`617, 645–46 (1888).
`
`By adopting a new, overly-broad understanding of
`the “government edicts” doctrine, the Eleventh Circuit
`abolished the right of States to protect their
`annotations, and
`to permit
`their
`contractual
`counterparties to derive value from these annotations’
`distribution to interested citizens. The primary (and
`often only) commercial value that LexisNexis and other
`publishers derive from contractual arrangement for the
`creation of these annotations is the exclusive license to
`sell the annotations at the mandated capped fee. But if
`annotations can now be copied and posted on the
`Internet for free by groups such as Respondent, as
`unprotected government edicts, this will destroy
`LexisNexis’ ability to recoup the substantial costs of the
`annotations’ creation. This will inevitably lead to the
`discontinuance
`of
`publicly-valuable
`contractual
`arrangements for the creation of such annotations, as
`
`
`
`
`
`4
`
`soon as current contracts expire, causing needless harm
`to States and the public.
`
`This Court should grant the Petition, and then
`reverse the Eleventh Circuit’s holding, making clear
`that these publicly-beneficial annotations have the full
`protections of U.S. copyright law.
`
`ARGUMENT
`
`Annotations,
`Statutory
`I. State-Owned
`Created By Private Parties Under Contracts
`With The State, Are Deeply Valuable Both To
`States And To The Public
`
`A. Statutory annotations provide great benefit
`to the public’s understanding of the law. See The
`Federalist No. 62 (James Madison), at 323–24 (George
`W. Carey & James McClellan eds., 2001) (“[I]t will be of
`little avail to the people, that the laws are made by men
`of their own choice, if the laws be so voluminous that
`they cannot be read, or so incoherent that they cannot
`be understood.”)
` Twenty-three States and U.S.
`Territories contract with private entities for the
`creation of statutory annotations, which provide
`explanations as to judicial and other interpretations of
`statutes. See LexisNexis, Statutory Editorial Process,
`http://www.lexisnexis.com/documents/pdf/2017030304
`5425_large.pdf. (last visited April 1, 2019). An
`annotated code “provides the text of the statute” and
`“contain[s] additional editorial enhancements helpful
`to
`the
`researcher,”
`including
`“[c]ase
`
`
`
`
`
`5
`
`notes
`statutory
`and
`annotations,” “[h]istorical
`providing summaries of the changes each public law or
`public act made to the section,” and “[r]eferences to
`secondary sources.” N. Ill. U. College of Law, Basic
`Legal Research, Forms of Publication of Statutory Law:
`Session Laws & Codes, Annotated Codes,
`https://libguides.niu.edu/c.php?g=425200&p=2904735
`(last visited March 26, 2019). Statutory annotations
`are “an incredibly important research tool” and,
`“because often what you are trying to do is see how a
`statute applies, these annotations are pure gold.”
`Shawn G. Nevers,
`“Don’t Underestimate
`the
`Importance of Statutes,” ABA Student Lawyer, Vol. 40,
`No.
`2,
`October
`2011,
`available
`at
`https://abaforlawstudents.com/2011/10/01/dont-
`underestimate-importance-statutes/. “By using an
`annotated code . . ., a researcher finds a wealth of
`information interpreting that statute, simply by
`retrieving a relevant section.” Brooklyn Law Sch. Libr.,
`Researching
`Statutes:
`Annotated
`Codes,
`http://guides.brooklaw.edu/c.php?g=330891&p=222283
`5 (last visited April 1, 2019).
`
`B. The contract between LexisNexis and the
`Commission illustrates the commercial arrangements
`that make the creation of these publicly-beneficial
`statutory annotations possible in the first place.
`
`The Commission has a contract with LexisNexis
`(the “Contract”) under which LexisNexis is responsible
`for researching, managing, creating, publishing, and
`distributing an annotated version of State laws as the
`
`
`
`
`
`6
`
`O.C.G.A. App., infra, 2a, ¶4. The Contract is awarded
`pursuant to an open bid process, under which
`LexisNexis and third parties present bids to administer
`the Commission’s project to publish and distribute the
`laws of the State of Georgia in both hardbound book
`and electronic format. LexisNexis must provide two
`functions under the Contract:
`
`First, LexisNexis must provide free, publicly
`available copies of the actual statutory texts of the laws
`of Georgia. LexisNexis provides online access to the
`statutory text of Georgia laws and the Georgia
`Constitution via a link to the State of Georgia website
`located at www.legis.ga.gov. App., infra, 2a, ¶¶5,6.
`This publication includes free statutory text and
`numbering, numbers of titles, chapters, articles, parts
`and subparts, captions and history lines. The online
`electronic version of Georgia’s laws includes robust
`features and capabilities, such as “terms and
`connectors”
`searching and
`“natural
`language”
`searching. Online Georgia code users may also print
`copies, save copies to their hard drive in PDF format, or
`e-mail copies to others. App., infra, 2a, ¶¶5,6. Neither
`the Commission nor LexisNexis claim any copyrights in
`the actual statutory text.
`
`Second, and most relevant here, LexisNexis
`must research, create, manage, publish, and distribute
`annotations to the O.C.G.A. as a work for hire, while
`providing free copies to certain libraries. App., infra,
`2a, ¶¶5,6. For private ownership of copies of the
`O.C.G.A., the Commission requires that Lexis Nexis
`
`
`
`
`
`7
`
`cap the price of a copy at $404.00, a fraction of the
`typical retail cost of an annotated statute set.† Each
`annotation is an original and creative work, which is
`protected by copyrights owned by the State of Georgia
`as a work for hire. See Pet. App. A, 11a-12a.
`
`As the district court properly recognized below,
`the creation of
`these annotations
`“requires a
`tremendous amount of work.” See Pet. App. B, 69a-70a.
`LexisNexis’
`team of attorney-editors generates
`substantive, original annotations on select legal cases
`regarding the statutes. These annotations provide a
`brief description of the application or interpretation of
`statutes, rules, laws or constitution, as well as analysis
`of the legal holdings within a case that have relevance
`to those provisions. App., infra, 3a, ¶¶12,13.
`
`The LexisNexis editor-employees, who are all
`attorneys, begin by reading case law opinions to
`identify discussion points and interpretation issues.
`They analyze the material for noteworthiness and
`determine whether the court or other authority’s
`discussion is relevant to an understanding of the
`provision. After cases are selected for inclusion, the
`editors then verify each potential source to ensure
`
`
`† For example, the current online retail price for West’s®
`Code of Georgia annotated is $4,406 (one-time purchase with no
`updates) or $330 per month for a fixed term of 24, 36, 60, or 120
`months
`(will
`include
`updates
`during
`the
`term).
`https://store.legal.thomsonreuters.com/law-products/Court-
`Rules/Westsreg-Code-of-Georgia-Annotated/p/100027635;
`accord Pet 10.
`
`
`
`
`
`8
`
`validity and to gain an understanding of how the
`statutory provision relates to the issue being discussed.
`App., infra, 4a, ¶¶15-19. The annotation often includes
`a written analysis of the court’s application of the law
`to the particular facts of a case or a description of the
`court’s interpretation or construction of the provision.
`Certain cases are selected for an in-depth review and
`analysis by a quality review team and further editing.
`For those annotations created by the editors in the
`specialized Prospective Case Law Enhancements
`group, LexisNexis forwards the annotations to its
`Georgia legal specialist employees for additional review
`and editing. App., infra, 5a, ¶¶21-24. Once LexisNexis
`experts quality check the annotation, they select the
`most on-point and specific classification from the
`LexisNexis taxonomy scheme for indexing. The
`annotation
`is subject to continuous review by
`LexisNexis to ensure continued accuracy.
`
`forth the statutory
`first sets
` An annotation
`language, followed by “Editor’s Notes” drafted by
`LexisNexis editors explaining the historical scope and
`language of the code section as held in cases selected by
`the editors. See Br. of Amicus Curiae Matthew Bender
`& Co., Ex. 2, Code Revision Commission v.
`Public.Resource.Org, Inc., 1:15-cv-2594-MHC (June 27,
`2016), ECF No. 38-2. Next comes the “Judicial
`Decisions” section, which is further divided by the
`editors into subtopics. Id. Again, LexisNexis employee
`editors draft the “Judicial Decisions” section, which are
`not the judicial opinions or quotes from the actual
`judicial decisions, but rather brief summaries deemed
`
`
`
`
`
`9
`
`important to the public and selected and written by
`LexisNexis’ employee editors. Id. The annotations
`created by LexisNexis not only include “Judicial
`Opinions,” but also Attorney General opinions,
`advisory opinions of the State Bar, law reviews, and bar
`journals. See id. The LexisNexis editorial staff
`regularly reviews these materials and selects those it
`deems the most noteworthy for inclusion in its
`annotations. App., infra, 5a, ¶25.
`
`The Commission does not review, revise, or
`approve any annotation, except through a routine
`administrative acceptance of the project in its entirety
`each year as established by the State’s statute. See Pet.
`App. A, 31a-32a. The annotations are not drafted or
`proposed by a bicameral elected legislature. They are
`not presented to or voted on by the Governor of the
`State of Georgia. See Pet. App. A, 47a-48a. Instead,
`the annotations are prepared by LexisNexis employee
`editors, with no legislative process for approval.
`Notably, the Georgia legislature has expressly codified
`that the annotations are not the law as expressly stated
`in O.C.G.A. §1-1-7. Further confirming that the
`annotations are not created through a legislative
`process, LexisNexis quarterly sends out periodic
`pocket-part updates to the O.C.G.A. and makes such
`updates available on-line without any review or
`approval from, or any notice to, the Commission or the
`State legislature. See Br. of Amicus Curiae Matthew
`Bender & Co., Ex. 2, Code Revision Commission v.
`Public.Resource.Org, Inc., 1:15-cv-2594-MHC (June 27,
`2016), ECF No. 38-2 (reproducing OCGA § 10-7-21’s
`
`
`
`
`
`10
`
` Neither the Commission nor the
`annotations).
`legislature votes on or dictates the removal of a
`particular entry. App., infra, 5a, ¶25. In all,
`annotations are valuable, privately-generated works,
`which the State of Georgia contractually requires that
`LexisNexis create and update at considerable expense
`and effort to Lexis Nexis and at no expense to the State.
`
`II. The Eleventh Circuit’s Approach Needlessly
`Destroys Economic Incentive To Create
`These Publicly Valuable Works, Contrary To
`This Court’s Precedents And The Core
`Purposes Of Copyright Law
`
`“The economic philosophy behind the [Copyright
`Clause] empowering Congress to grant . . . copyrights
`is the conviction that encouragement of individual
`effort by personal gain is the best way to advance public
`welfare through the talents of authors and inventors in
`‘Science and useful Arts.’” Mazer v. Stein, 347 U.S. 201,
`219 (1954) (quoting U.S. Const., Art. I, § 8, cl. 8).
`Consistent with this principle, the Copyright Act
`specifically recognizes “annotations” as works entitled
`to copyright protection, see 17 U.S.C. § 102(a), and
`copyright law has long granted protection for annotated
`cases and statutes, see, e.g., W.H. Anderson Co., 27 F.2d
`at 82; Howell, 91 F. 129; Lawrence v. Dana, 15 F. Cas.
`26 (C.C.D. Mass. 1869). The Copyright Office’s treatise
`expressly notes the protectability of annotations. U.S.
`Copyright Office, Compendium of U.S. Copyright Office
`Practices
`(3d
`ed.
`2017)
`available
`at
`https://www.copyright.gov/comp3/docs/compendium.pd
`
`
`
`
`
`11
`
`f. And the Copyright Office repeatedly has registered
`the copyrights in State-owned annotated statutes. See
`Vernon’s Annotated Statutes of the State of Texas
`(AA000020419), New Mexico 2015 Advance Code
`Service
`(Reg. TX0008001813), Registration No.
`TX0008633448 (Alabama) (Alaska), TX0008590841
`(June 11, 2018) (Arkansas), TX0008381033 (Feb. 16,
`2017) (Colorado), TX0008551825 (Jan. 16, 2018)
`(Delaware), TX0008566647 (Apr. 23, 2018) (District of
`Columbia), TX0008588533 (Mar. 13, 2018) (Idaho),
`TX0008430948 (Jan. 9, 2017) (Kansas), TX0008588394
`(Apr. 3, 2018) (Mississippi), TX0008532691 (Aug. 28,
`2017) (New Hampshire), TX0008600436 (Dec. 4, 2017)
`(New Mexico), TX0008555142 (Jan. 16, 2018) (Rhode
`Island), TX0008549132
`(Oct. 18, 2017)
`(South
`Carolina), TX0008625275
`(Aug. 7, 2018)
`(South
`Dakota), TX0008588806 (Mar. 19, 2018) (Tennessee),
`TX0008530993
`(Nov.
`23,
`2017)
`(Vermont),
`TX0008604570 (Feb. 12, 2018) (Wyoming) (searchable
`through
`Copyright Office’s
`public
`catalog,
`http://bit.ly/2VTNDI9).
`
`Contrary to this uniform recognition of the
`copyright protection afforded to statutory annotations,
`the Eleventh Circuit transformed the long-standing,
`narrow government edicts doctrine into a bulldozer
`that destroys the commercial value of statutory State-
`owned annotations. In its Petition, the State of Georgia
`shows why the Eleventh Circuit’s decision deepens a
`circuit split on the proper understanding of the
`government edicts doctrine, Pet. 15–22, how the
`annotations here would be protected by copyright laws
`
`
`
`
`
`12
`
`under the approach to this doctrine that other courts
`apply, Pet. 22–24, and why the Eleventh Circuit’s
`decision is wrong on the merits, including contrary to
`this Court’s decision in Callaghan v. Myers, 128 U.S.
`617 (1888), and Wheaton v. Peters, 33 U.S. 591 (1834),
`Pet. 24–32. LexisNexis merely wishes to add to this
`analysis the critical point that the Eleventh Circuit’s
`decision destroys the value of State-owned, privately
`created annotations, contrary to the core “economic
`philosophy” of the copyright laws of this nation, Mazer,
`347 U.S. at 219, which is an issue of national
`importance, warranting this Court’s review.
`
`For context, there are two ways that State
`legislatures generally generate statutory annotations
`for the benefit of the public’s understanding of the laws.
`The Eleventh Circuit’s approach destroys the more
`efficient, taxpayer friendly of these two approaches,
`without any grounding in the copyright law.
`
`Under the first model, a State can create the
`annotations itself using its own staff and/or pay a
`private party to provide any service that its own staff
`cannot accomplish. Colorado takes an approach along
`these lines. Colorado’s staff creates case annotations,
`cross-references, and other notes relating to the State’s
`legal code. Colorado law expressly states that the
`copyright in these ancillary materials is the “sole
`property of the State of Colorado as owner and
`publisher thereof.” Colo. Rev. Stat. § 2-5-115 (allowing
`the State’s committee or its designee may register the
`copyright in the work).
` The Colorado General
`
`
`
`
`
`13
`
`Assembly’s Committee on Legal Services maintains a
`contract with LexisNexis to publish and distribute the
`statutes, both in book form and in an online portal. In
`the Colorado-style model, the creation costs of the
`ancillary annotations are borne primarily by taxpayers
`and paid for by taxes on its citizens. Jennifer Gilroy &
`Abby Chestnut, Who Owns the Law? The Colorado
`Perspective on Copyright and State Statutes (Apr. 6,
`2017),
`available
`at
`https://legisource.net/2017/04/06/who-owns-the-law-
`the-colorado-perspective-on-copyright-and-state-
`statutes/.
`
`On the other hand, under the approach adopted
`by Georgia and at least twenty-two other States and
`U.S. Territories, States contract with an experienced
`vendor, such as LexisNexis, to create annotations,
`while giving that vendor the right to
`license
`annotations for its profit, subject to contractual
`limitations. The vendor will provide the State with
`experience and expertise in creating annotations, along
`with the advantage of cost-effective training of the
`creative laborers. The cost of creation is generally
`borne by the vendor, along with an obligation to
`distribute the text of the statutes. The vendor relies on
`sales of the annotated statutes to the product’s users to
`offset the costs of creation. In some States, the State
`owns the copyright in the resulting annotations; in
`others, the vendor owns the copyright in these ancillary
`materials. App., infra, 6a-7a, ¶29.
`
`
`
`
`
`14
`
`Like any vendor providing services under the
`Georgia-style model, LexisNexis relies on protection of
`copyright to provide vendor services. App., infra, 7a,
`¶30. Pursuant to LexisNexis’ Contract, the State of
`Georgia owns the copyright in the annotations as a
`“work for hire,” which it exclusively licenses to
`LexisNexis for publication and distribution under the
`Contract’s terms. App., infra, 4a, ¶20. LexisNexis does
`not charge the Commission any fee to create the
`annotations. Instead, the Commission authorizes
`LexisNexis to charge a capped fee to customers
`accessing online copies and to sell hardcopy books and
`CDs of the work. LexisNexis also must incur the
`expense of keeping inventory on hand to provide a
`reasonable supply of complete sets of hard copies of the
`O.C.G.A. so that it may fill any request within two
`weeks, as required under the Contract. App., infra, 6a-
`7a, ¶29.
` The overhead costs of creating and
`maintaining the annotations are high because the tasks
`require time and skill, as discussed in detail above. See
`generally App., infra, 3a-6a, ¶¶ 11-28.
`
`The Eleventh Circuit’s decision destroys the
`commercial market for these annotations, such that
`States simply no longer will be able to enter similar
`agreements with vendors for the distribution of legal
`texts and the creation and maintenance of annotated
`legal resources in the future. App., infra, 7a, ¶30.
`Entering into such contracts in the wake of the
`Eleventh Circuit’s decision would cause substantial
`economic harm to the State of Georgia and LexisNexis
`because the annotations would already be freely
`
`
`
`
`
`15
`
`distributed by platforms such as Respondent. App.,
`infra, 8a, ¶32. As the district court properly explained,
`“[b]ecause [Respondent] has copied every word of the
`annotations verbatim and posted them free of charge,
`[Respondent’s] misappropriation destroys Lexis/Nexis’
`ability to recover those costs.” See Pet. App. B, 72a.
`
`The Eleventh Circuit’s decision would cause
`significant damage to States like Georgia and their
`citizens, as well as the public’s understanding of the
`law. Under a well-established contractual structure,
`those States and U.S. Territories paid no money to have
`publishers such as LexisNexis maintain, update and
`make their statutes available to the public on-line at no
`charge, and to create, update and publish a robust
`annotation using experienced LexisNexis employee
`editors who are lawyers. See Pet. App. B, 54a-58a;
`App., infra, 2a, ¶6. Devoid of the copyright protection
`previously afforded to the annotations, and faced with
`organizations such as the Respondent, no publisher will
`operate under the previous structure once its existing
`contract expires.
`
`In that world, States and U.S. Territories and
`their citizens either will move to the Colorado-style
`model and have to absorb significant employee and
`publishing costs to create annotations themselves; pay
`a publisher market rates to create annotations, which
`would be significant; or hope that
`independent
`publishers will choose to create their annotations, such
`as West does now, but which cost users ten times the
`cost currently charged by LexisNexis under
`its
`
`
`
`
`
`16
`
`contractually capped Contract. The States and their
`citizens who have relied on the Georgia-style structure
`will now face higher taxes and costs, and the significant
`loss of their copyrights and meaningful access to their
`laws and the robust legal resources. In short, they
`would suffer precisely the types of harms resulting from
`the destruction of economic
`incentives that the
`copyright laws are designed to avoid.
`
`CONCLUSION
`
`This Court should grant the Petition and reverse
`the Eleventh Circuit’s judgment.
`
`
`
`
`
`
`
`
`
`
`
`
`
` Respectfully submitted,
`
`MISHA TSEYTLIN
` Counsel of Record
`MICHAEL D. HOBBS
`JOHN M. BOWLER
`AUSTIN D. PADGETT
`TROUTMAN SANDERS LLP
`One North Wacker Drive
`Suite 2905
`Chicago, Illinois 60606
`(312) 759-5947
`misha.tseytlin@troutman.com
`
`April 2019
`
`
`
`
`
`
`
`APPENDIX
`APPENDIX
`
`
`
`1a
`
`APPENDIX — AFFIDAVIT OF ANDERS GANTEN
`OF THE UNITED STATES DISTRICT COURT,
`NORTHERN DISTRICT OF GEORGIA,
`ATLANTA DIVISION, DATED MAY 17, 2016
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`CIVIL ACTION NO.
`1:15-cv-2594-MHC
`
`CODE REVISION COMMISSION ON BEHALF
`OF AND FOR THE BENEFIT OF THE GENERAL
`ASSEMBLY OF GEORGIA AND THE STATE
`OF GEORGIA,
`
`Plaintiff,
`
`v.
`
`PUBLIC.RESOURCE.ORG, INC.,
`
`Defendant.
`
`AFFIDAVIT OF ANDERS GANTEN
`
`I, Anders Ganten, state as follows:
`
`1.
`
`I am over the age of 18.
`
`I currently serve as Senior Director Government
`2.
`Content Acquisition at LexisNexis, which oversees amicus
`Matthew Bender & Company, Inc. (for purposes of this
`Affidavit, “LexisNexis”).
`
`Appendix
`
`
`
`2a
`
`3. LexisNexis is a leading global provider of
`content-enabled workflow solutions designed specifically
`for professionals in the legal, risk management,
`corporate, government, law enforcement, accounting,
`and academic markets. LexisNexis originally pioneered
`online information with its Lexis® and Nexis® services.
`LexisNexis also provides and publishes analytic legal
`research materials.
`
`4. L exisNexis has executed a contract (the
`“Contract”) with the Code Revision Commission on Behalf
`of and For the Benefit of the General Assembly of Georgia
`and the State of Georgia Commission (the “Commission”)
`under which LexisNexis is responsible for researching,
`managing, creating, publishing, and distributing an
`annotated version of State laws as the Official Code of
`Georgia Annotated (“O.C.G.A.”).
`
`The Contract is awarded under an open bid
`5.
`process, whereby LexisNexis and third parties may
`present bids to administer the Commission’s project to
`publish and distribute the laws of the state of Georgia in
`both hard bound book and electronic format.
`
`6. Under the Contract, LexisNexis provides two
`functions: (1) publically and freely distributing the
`statutory texts of Georgia and (2) researching, creating,
`managing, publishing, and distributing annotations to the
`O.C.G.A. as a work for hire.
`
`To distribute the statutory portion of the
`7.
`codification of Georgia’s laws as required in the Contract,
`
`Appendix
`
`
`
`3a
`
`LexisNexis provides online 24/7/365 access to the statutory
`text of Georgia laws and the Georgia Constitution via a
`link to the State of Georgia website located at www.legis.
`ga.gov.
`
`8. All statutory text and numbering, numbers of
`titles, chapters, articles, parts and subparts, captions and
`history lines are included in this publication. This online
`resource is entirely free to users.
`
`The online electronic version of Georgia’s laws
`9.
`includes robust features and capabilities, such as “terms
`and connectors” searching and “natural language”
`searching.
`
`10. Online Georgia code users may also print copies,
`save it to their hard drive in PDF format, or e-mail copies
`to others.
`
`11. As part of its obligations under the Contract
`with the Commission, LexisNexis’s team of attorney-
`editors creates annotations for the relevant statutes in
`the O.C.G.A. (the “Annotations”).
`
`12. T hese editors create substantive original
`Annotations on select legal cases regarding the
`constitutionality, purpose, intent, and meaning of words
`and phrases, as well as illustrations of particular statutory
`provisions.
`
`13. These Annotations generally provide a brief
`description of the application or interpretation of statutes,
`
`Appendix
`
`
`
`4a
`
`rules, laws or constitution, as well as analysis and guidance
`of the legal holdings within a case that have relevance to
`those provisions.
`
`14. T he attached document labeled Amicus
`Exhibit 2 provides an example of the statutory text
`and LexisNexis’s Annotations to Official Georgia Code
`§ 10-7-21. Amicus Exhibit 2 is a true and accurate copy
`of the material.
`
`15. The creation of the Annotations for the entire
`Georgia code requires a labor-intensive, creative process.
`
`16. The LexisNexis editors, who are all attorneys
`(which is
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