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A county government may protect a copyright interest in its work product, even though it must comply with New York state’s open records law, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. A unanimous three-judge panel said that the state’s Freedom of Information Law (FOIL) did not abrogate Suffolk County’s copyright interest in its tax maps, which are compiled and maintained at taxpayer expense. According to the county, the maps contain valuable information on each parcel of land in the county including their boundaries and tax valuation. In County of Suffolk v. First American Real Estate Solutions, 00-9011 (L), county officials wanted to stop defendants from publishing and marketing copies of the Suffolk County tax maps. The decision will be published Wednesday. The defendant, First American Real Estate Solutions, gained access to the tax records under FOIL, which guarantees private entities the right to inspect and copy public documents. It argued that the state’s decision to open such records effectively extinguished any copyright enjoyed by a local government. But the appeals court, in a decision written by Judge Chester J. Straub, reversed a Southern District of New York judge’s decision, and said that federal copyright laws still remain in effect, even though the state may call for public disclosure of the county government’s work product. “FOIL emphasizes broad public distribution to further the goal of opening government and explicitly permits the copying of state agency records,” Judge Straub said. “While one possible reading of these statutory aspects is to permit publishers, including commercial publishers, to disseminate agency records as widely as possible, it is not the only reading. We find that the better reading, one consistent with the plain language of FOIL, is to permit Suffolk County to maintain its copyright protections while complying with its obligations under FOIL.” FOIL does not require agencies and local governments to allow the redistribution of its records, Straub reasoned. It is a limit on an agency’s ability to restrict access to its records. “There is nothing inconsistent between fulfilling FOIL’s goal of access and permitting a state agency to place reasonable restrictions on the redistribution of its copyrighted works,” the appeals court said. Straub also said that the New York State Committee on Open Government’s advisory opinion that a state agency could not assert a copyright interest should not have received deference in the federal courts. The state committee’s opinion that the statute was intended to abrogate a federal right under the Copyright Act goes beyond its administrative authority, the 2nd Circuit said. “Because the Executive Director rested his decision on his interpretation of the [federal] Copyright Act and engaged in statutory interpretation of FOIL, New York courts would not be required to defer to his opinion,” Straub observed. ORIGINALITY SEEN On remand to the trial court, Suffolk County will have a chance to show that it is entitled to copyright protection of its work product, the tax maps. The county argues that the maps are an original work of its own authorship, and it objects to a private business enterprise’s attempt to turn a profit based on the county’s work. “We find that Suffolk County sufficiently alleged that its tax maps possess enough originality to withstand a motion to dismiss” its claim, Straub said. Joining Straub on the panel were Judges Dennis G. Jacobs and Rosemary S. Pooler. Suffolk Assistant County Attorney Jeltje deJong argued the case on behalf of the county government. Andrew L. Deutsch, Edward F. Maluf and Christine M. Jaskewicz of Piper Marbury Rudnick & Wolfe in Manhattan handled the case for First American Real Estate Solutions. State Assistant Solicitor General Frank K. Walsh argued for the state of New York as an amicus curiae on the side of Suffolk County. New York City Corporation Counsel Michael D. Hess also appeared as an amicus curiae on the county’s side.

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