Note on Code Swaraj
lawyer, Elizabeth Rader, a well-known intellectual property expert with the firm of Alston & Bird, the most prominent law firm in Georgia. Elizabeth and her colleagues at Alston had spent a tremendous amount of time and effort shepherding this case through the district and appelate courts, and I greatly appreciated their efforts.
I got into Atlanta early enough to be able to sit in the courtroom the day before and see how the judges handled oral argument. In a Court of Appeals hearing, you often get a “hot bench” which means the judges ask lots of questions. Indeed, sometimes the lawyer only gets to “may it please the court” before the judges interrupt and start firing away. This was definitely a hot bench and I enjoyed watching the three judges put the lawyers through their paces.
On Thursday, November 16, it was our turn. We appeared before a panel of three judges, and they were totally prepared. They grilled us hard, but they grilled the State of Georgia even harder. They wanted to know why the state had included annotations in the Official Code if it didn’t want the annotations to be official. They pulled out sections from the Official Code indicating that the entire code was law, and grilled the states lawyers on exactly what the words meant. They asked about availability of the code.
We didn’t get an easy ride either, but at the end of the day it was clear the court understood our position. Perhaps they wouldn’t agree with us, but at least they understood what we were saying. It wasn’t so clear they understood why the state was taking the position it had taken. They asked the state why it couldn’t simply publish an Official Code without the annotations if they felt those shouldn’t be freely available.
The oral argument lasted over an hour, twice as long as any other case the court heard that week. At the end, the Chief Judge rose and remarked “interesting case!” I viewed that as a positive sign. Judges like interesting cases. You can never read the tea leaves when it comes to a bench, but I left the courtroom hopeful that we had a chance. The next morning, I caught the 6 a.m. flight back to the Bay Area.
The Big “Standards Are Law” Case
There was one more court case we had to deal with, and this was the big standards case in the U.S. Court of Appeals for the District of Columbia. As in India, I had carefully looked through legal materials and then purchased technical public safety standards with the force of law and posted them on the
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