Malamud was once described in a New York Times articles as a "self-styled Robin Hood of the information age. His non-profit, Public Resource. Org, has long been at the forefront of efforts to insure the public can obtain online laws, records and other state documents that are often only available for a fee through state sites or agencies.
Other states have tried to take Malamud to task, notable Oregon, though in the end, it finally did agree that the state wouldn't assert copyright laws to prevent Malamud from providing the information to the public. Malamud has long been fighting a battle to make public laws, codes and court documents publically available without charge. As one noted columnist has stated. "at almost every turn he's been fought by government agencies that want to extract a fee from taxpayers for access" though, as Malamud stresses "the public pays for the work in the first place, via taxes."
His tactics have been successful in the past. He persuaded the Securities and Exchange Commission to make its database of corporate filings - EDGAR - available to the public without charge. Similarly, he facilitated an add-on called RECAP to the federal court system database of filings and rulings known as PACER. Data for users is charged by the page. Now, whenever a RECAP user goes to a court document it gets automatically uploaded to a public database. Users are then notified by a blue "R" on their browsers and can access the uploaded material for free. Accomplishing this feat earned Malamud the title of "rogue archivist" and the ignominy of those who seek to restrict information to a fee-based system.
Malamud has acknowledged that "most states don't play this game" but there are still several, including Mississippi and Idaho that continue to hold back opening up their statute books in a easily accessible format to the public. Answering critics who fear Malamud's methods risk abridging the "work product of those who earn a living writing, annotating and collating", he said, "I have never distributed genuinely independent work", but the annotations Georgia seeks to "protect" don't fit that category at all because they are "produced by a state body, the Georgia Code Revision Commission, and the copyright's held by the state, not a commercial publisher. "The law has no copyright because it's owned by the people," he says.
Georgia's case seems to rest on the notion that if NexisLexis can't recoup the costs of producing the annotations by charging online fees then the State would have to bear the costs and pay for them with tax dollars. Supporters of Malamud assert tax dollars are exactly how the annotations should be paid for since the underlying reason for their existence is the state statutes and they are produced with taxpayer money for taxpayer use.
Using the word 'terrorist" to describe Malamud is ludicrous and a ridiculous use of a line from a book Malamud published 20 years ago. "I used that term as a quip," he says. "I've been a public servant for 30 years. I put the law online, and to make that into 'terrorism' is distasteful."
His latest battle with Georgia has taken a particularly egregious path since the state is not relying on copyright violation of the statutes themselves acknowledging in court briefs that the "laws of Georgia are and should be free to the public." The state claims, however, that Malamud and Public Resource.Org cannot legally republish the annotated version of the Code, because it was created by a third-party publisher; in this case LexisNexis.
The suit alleges that Malamud is downloading copyrighted material to push the envelope on what they provide the public. LexisNexis already publishes without cost all the Georgia Statutes at www.legis.ga.gov but Public Resource.Org is also publishing annotations that are not part of the publically produced statutes.
"The Defendant is employing a deliberate strategy of copying and posting large document archives such as OCGA (including the copyrighted annotations) in order to force Georgia to provide the OCGA, in an electronic format acceptable to Defendant. Defendant's founder and president, Carl Malamud, has indicated this type of strategy has been a successful form of 'terrorism' that he has employed in the past to force government entities to publish documents on Malamud's terms."
The Georgia pleadings seek a court order to prohibit "copying and using its copyrighted material in derivative works." Georgia is also seeking attorney's fees, costs and the seizure of all infringed material.
Critics say Malamud's actions would produce a chilling effect on writers and content producers who rely on getting paid for what they consider 'proprietary material." Georgia's lawsuit alleges that "inclusion of synopses of cases interpreting the law and summaries of Opinions by the Attorney General of Georgia constitute original and creative work authored and protected by copyrights owned by the State of Georgia."
Supporters tend to agree with Malamud's view: "The annotations and opinions are part of official code of Georgia and to understand the law a reader needs to refer to the annotations". He made an analogy to a sandwich, saying, "it's ridiculous to be given a sandwich but have to pay for the mayonnaise or other condiments when every sandwich has the condiments on them already - the parts make the whole workable. "
" I wouldn't publish and disseminate the creative work product of an independent writer to circumvent their right to get paid and protect their interest in an intellectual property, but the synopses and annotations Georgia is trying to protect are produced by the State with taxpayer money, not a commercial publisher and are already the property of the people."
For many, Malamud makes a strong argument. Comments found online tend to support his efforts and include many references to the State as "over-reaching", "controlling", "greedy' and "motivated by a desire to keep ways to understand the law away from the people." One particularly conspiratorial theory is that lawyers want to "keep the law to themselves."
Whatever the outcome, the case has become a source of national debate and will be watched closely for outcome.