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The rule that judicial opinions and statutes are in the public domain and can be freely copied does not apply to county tax maps, a New York Southern District judge has ruled in a case of first impression. On Monday Judge John F. Keenan found that the copyright case brought against real estate firms that claimed they had the right to copy and distribute tax maps could go forward. Keenan also found in County of Suffolk v. Experian Information Solutions, 99 Civ. 8735, that the firms could not claim the state’s Freedom of Information Law (FOIL) protected their actions. In 1974, Suffolk County created and designed maps that reflected tax district and special district boundaries. Since that time, the county has updated the maps annually for the 10 townships within its borders. At present, there are 4,600 tax maps showing more than 500,000 properties. The county brought suit against Manhattan-based Experian Information Solutions and First American Real Estate Solutions of Rochester, which recently purchased Experian, as well as a third firm, TRW Redi Property Data, which is not party to the motion to dismiss. It claimed infringement of its copyrights by the real estate firms, who sold copies of the maps as well as publishing them on CD-ROMs. The county charges that the maps are covered by federal copyright law because they contain a significant amount of original material, research, compilation and original organization. The county first registered its copyright claims in 1974 and has continued to do so. First American moved to dismiss, arguing the maps were part of the public domain and that their actions were protected by FOIL. They also claimed the tax maps were not original, according to the ruling, because they lacked any “creative spark,” and because state law dictates both the information in the maps and the format in which it is presented. Keenan first denied the motion to dismiss on the issue of originality, saying that the county was “entitled to offer evidence regarding the originality of its tax maps.” Then, as a prelude to addressing the firms’ argument that the maps should be considered part of the public domain, Keenan cited two cases to provide background on the issue of maps and copyright law. The 5th U.S. Circuit Court of Appeals, he said, found in Mason v. Montgomery Data Inc., 967 F2d 135 (1992), that a plaintiff’s real estate ownership maps were copyrightable because the plaintiff had to make independent choices in selecting information from numerous and sometimes conflicting sources in assembling the maps. And the 2nd U.S. Circuit Court of Appeals ruled in Streetwise Maps Inc. v. Vandam Inc., 159 F3d 739 (1998) that a plaintiff’s map was copyrightable, but found that only the original material could be protected because most of the map consisted of “physical facts” such as street locations and bodies of water. Keenan then drew a distinction, for determining what should be considered part of the public domain, between statutes, judicial decisions and the tax maps at issue. Case law, he said, supports the notion that statutes and decisions belong to the public because the public owns the law and usually pays the salaries of those who draft legislation. Moreover, he said, citizens are, in effect, the authors of the law because the law derives from the consent of the governed. Finally, he said, people have to have notice of what the law requires under due process. That same logic, he found, does not apply to tax maps. “Defendant fails to cite any case finding that county tax maps are in the public domain and concedes in its reply papers that the question of whether official tax maps prepared by a government agency should be treated as in the public domain from inception is a matter of first impression,” he said. “In this case,” he continued, “the court declines to find that county tax maps are in the public domain from inception and, as a result, not copyrightable.” Finally, Keenan said that the “clear language” of the FOIL statute requires only that the county give everyone access to its maps, which it does. But, he said, FOIL does not give the real estate firms the right to publish and sell the maps. Suffolk County Attorney Robert J. Cimino and Assistant County Attorney Jeltje deJong represented Suffolk County. Andrew L. Deutsch and Edward F. Maluf of Piper Marbury Rudnick & Wolfe represented First American.

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