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Two New York state agencies have taken opposing positions in a case before the 2nd U.S. Circuit Court of Appeals that could delineate for the first time where the Federal Copyright Act ends and the state’s Freedom of Information Law begins. The tax maps maintained by Long Island’s easternmost county, and the considerable amount of real property data that those maps contain, are at the crux of Suffolk County v. Experian, 00-9169. But lawyers for the county and the company that seeks unfettered access to those maps each contended during oral arguments Wednesday that there is more at stake than just control of the maps. New York and other states began some quarter-century ago to adopt what are known collectively as “sunshine laws,” which mandate public access to government records and meetings. But the Suffolk case represents the first time that a government agency has sued to assert a copyright on records that the state’s Freedom of Information Law (FOIL) requires to be released to anyone who asks for them. Municipalities all over the country are now facing a question similar to the one that prompted Suffolk to file its copyright infringement suit: whether they must release public records to commercial enterprises that intend to profit from them. The decision of the three-judge panel, which included Judges Chester J. Straub, Dennis G. Jacobs and Rosemary S. Pooler, could have broad implications as a result. On Wednesday, Assistant County Attorney Jeltje deJong argued alongside Assistant State Solicitor General Frank Walsh that the Copyright Act trumps FOIL on the question of dissemination. “This is not a case about the freedom of information law,” but rather about a commercial enterprise attempting to “exploit” the county’s original work for financial gain, said deJong. “But commercial enterprise is free to avail itself of the freedom of information law last time I looked,” observed Judge Straub. DeJong and Walsh conceded that the county was required by FOIL to release the tax maps to First American Real Estate Solutions, which recently acquired co-defendants Experian and TRW, but said that copyright law afforded the county the right to limit how and by whom those records were disseminated. “This is not a freedom of information case,” reiterated Walsh, arguing that the central question was whether U.S. District Court Judge John F. Keenan of the U.S. District Court for the Southern District of New York erred in July when he based his dismissal on a legal opinion by the state’s own FOIL expert. Two months before, Keenan had denied the defendant’s motion to dismiss, then granted its motion to reconsider, which hinged on the opinion written by Robert J. Freeman, the executive director of the State Committee on Open Government. Freeman held that a government agency claiming a copyright on public records could undermine the public’s constitutionally guaranteed right to know. Keenan noted in his decision that the court was not legally bound by Freeman’s opinion, but found that it met the standard for not being “irrational or unreasonable.” PRIVATE ENTERPRISE “The question before this court very much depends on an interpretation of FOIL,” said Andrew L. Deutsch, of Piper, Marbury, Rudnick & Wolfe in Manhattan. Deutsch, who represented First American, objected when the panel suggested that it could certify the interpretation question for the New York Court of Appeals. He argued that the pre-eminent question, whether public records could be copyrighted, was one for a federal court. FOIL is silent on the question of what can be done with a public record once it is released, but Deutsch likened Suffolk County’s position to the government releasing a document, then having it seized by the police to prevent it from being used. “But didn’t the state and county have rights under the federal copyright law before the people had rights under FOIL?” asked Judge Straub, inquiring also whether FOIL, officially known as Public Officers Law Section 84, “vitiated” the government’s rights. Deutsch replied that a state that adopts a FOIL “has effectively abandoned” any copyright claim. Judge Jacobs, observing that copyrighted material can be copied and used by students and researchers through any public library, asked, “Surely that doesn’t imply that a person can make as many copies as they want and disseminate it?” Deutsch said it did, analogizing that a citizen opposed to a government-funded highway project was permitted to nail up copies of the highway map to alert his neighbors. In response, deJong asserted that that scenario would fall under the Copyright Act’s fairness exception. “So you just can’t make multiple copies and sell them in a bookstore?” asked Jacobs. “Yes,” deJong replied. “So they just can’t make money doing it?” rejoined Judge Pooler. DeJong conceded that copyright-protected material could be used for educational and certain other purposes, but claimed that private enterprise was prohibited from turning a profit on it. Pooler asked whether the lower court had addressed the question of the originality of Suffolk’s tax maps, a criteria for copyright protection, and deJong reported that Keenan had denied her motion for summary judgment on that issue, setting it aside as a triable question of fact. Deutsch asserted that since counties are required by state law to maintain the tax maps, and state regulations prescribe how those maps are to be drawn and what data they must contain, the maps are not “original” works. The 2nd Circuit took the case under submission without issuing a ruling.

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