When last we left the litigation between Fastcase and Casemaker, it was mid-May and Fastcase had just filed a motion for summary judgment. A lot has happened since then, including just this week, so let me bring you up to date.

But first, to recap: Last February, Fastcase preemptively filed the declaratory judgment lawsuit in federal court in Atlanta after Casemaker served it a written notice demanding it take down from its research collection the Georgia Administrative Rules and Regulations.

Casemaker’s parent company, Lawriter, has an agreement with the Georgia Secretary of State designating it as the exclusive publisher of the Georgia regulations and giving it the right to license that content to other publishers. But Fastcase maintains that the regulations are public law in the public domain and that Casemaker cannot claim an exclusive right to their publication.

Initially, Casemaker said it would not fight the lawsuit and agreed that state law should not be subject to copyright. But it subsequently filed an answer and counterclaim in which it asserted “the right to claim copyright in any copyrightable materials, electronic files, data, source code and/or anything in addition to the statutory text and numbering in the content of the site(s).”

Then came Fastcase’s motion for summary judgment. It argued that there is no genuine dispute as to any material fact and that the court should enter a judgment declaring that Casemaker has no copyright in the Georgia regulations and that Fastcase is therefore not infringing any copyright by publishing those regulations on its own site.

For more detail on all of what previously transpired, see these posts:

Now on to the latest news.

Staking Out Their Legal Arguments

After Casemaker filed its initial answer and counterclaim, it then filed an amended answer. The amended answer is interesting in two respects:

  • The amended answer adds this statement: “Defendant does not intend to commence, institute and/or file any litigation regarding any use of the Electronic Files by Plaintiff prior to April 7, 2016.” Recall that Casemaker’s initial take-down notice said that if Fastcase did not comply, Casemaker would take whatever steps it deemed necessary, “which may include litigation.” So now Casemaker is affirmatively stating that it will not commence litigation against Fastcase, at least with respect to past use of the materials.
  • The amended answer drops all counterclaims against Fastcase. The original answer included counterclaims for unjust enrichment and quantum meruit.

Then, on June 9, Casemaker filed its response to Fastcase’s summary judgment motion. The response builds on the amended answer and argues that Fastcase’s motion should be denied for four reasons:

  1. The court lacks subject matter jurisdiction because Casemaker has not registered a copyright in any of the files or data at issue in the case. For that reason, the complaint presents no federal question under copyright law. Further, there is no diversity jurisdiction because the amount in controversy does not exceed $75,000.
  2. The case no longer presents a justiciable case or controversy because Casemaker has dismissed its counterclaims and has given Fastcase a covenant not to sue with respect to any demands and claims that Casemaker could have made based on the conduct at issue. As a result, under the voluntary-cessation doctrine, Fastcase’s claims are moot.
  3. As to Fastcase’s claim for declaratory judgment related to its copying of materials prior to April 7, summary judgment should be denied based on disputes as to material fact, as well as the need for discovery as to certain material facts.
  4. As to any aspect of Fastcase’s claim based on activities occurring after April 7, Fastcase has pleaded no facts supporting such a claim. On that date, Casemaker altered the Website to require users to agree to express terms of use. If Fastcase were allowed to amend its complaint to state a claim based on the period after April 7, Casemaker would respond with a claim for breach of contract that would not be preempted by the Copyright Act, along with a claim for copyright infringement, depending on whether Fastcase copied any Casemaker materials.

On Tuesday, Fastcase filed its reply to Casemaker’s response. Its memorandum made the following arguments:

  1. The court does have federal question jurisdiction because Casemaker continues to threaten to sue Fastcase for copyright infringement if it updates the Georgia regulations from the Georgia Secretary of State website.
  2. The court has diversity jurisdiction based on the fact that Fastcase is a citizen of Delaware and the District of Columbia while Casemaker is a citizen of Virginia. Further, the amount in controversy is greater than $75,000 because Fastcase updates its materials daily and Casemaker’s new terms and conditions say that each violation would cause Casemaker to “suffer damages of at least $20,000.”
  3. There is a justiciable controversy despite Casemaker’s promise not to sue for anything that happened prior to April 7. The controversy exists because Casemaker continues to insist it could sue Fastcase at any time going forward. The only difference would be Casemaker’s legal theory.
  4. There are no disputes of material fact and Fastcase is therefore entitled to summary judgment.

As of yesterday, the motion papers were submitted to U.S. District Judge Timothy C. Batten Sr. for his review and decision. As of today, that is where the case stands. As always, stay tuned for further developments.

Key Pleadings in the Case

In case you’re interested, here are the key pleadings so far in the case:

Photo of Bob Ambrogi Bob Ambrogi

Bob is a lawyer, veteran legal journalist, and award-winning blogger and podcaster. In 2011, he was named to the inaugural Fastcase 50, honoring “the law’s smartest, most courageous innovators, techies, visionaries and leaders.” Earlier in his career, he was editor-in-chief of several legal publications, including The National Law Journal, and editorial director of ALM’s Litigation Services Division.