TRANSPARENCY TUESDAY: Copyright and putting FOIA’d documents in the cloud

Everybody knows the hot journalists out there are uploading their source documents to online storage for third parties to examine. Recently, Romenesko posted a warning from a New York Times editor cautioning that there might be cases where there may be a copyright interest in state-created works. The good news is, the actual danger here is pretty low. But it’s worth understanding what the scope of these rights are and how to determine when there’s a risk.

Unlike most agencies of the federal government, state entities are generally permitted to assert a copyright interest in the works they create.*

For the most part, states don’t typically assert a copyright interest in their creations, probably because the pamphlets at the DMV aren’t nearly as commercially viable as you might think. But every so often, a state office does create something of value, and it sometimes asserts its ownership in that thing. So here are a few tidbits to know about FOIA, copyright, and cloud storage of source materials.

1. Just because a document is subject to FOIA doesn’t mean that it’s always in the “public domain” for republication purposes. The exclusive rights of copyright owners are reproduction, distribution, display, performance, and the creation of derivative works. The individual requesting a document under FOIA laws does none of these things. While it’s true that most of the documents you get will be redistributable, not every document is going to be.

Note that copyright law and trade secret law are not interchangeable here. If something is actually a trade secret–for example, an exam for a government job that has never been published outside of the examination room–there might be a “trade secret” exemption to disclosure. But that has nothing to do with copyright law.

2. The flip side of this coin is also true, however: Copyright law should not be a bar to receiving a document under FOIA. While the copyright may burden what the requester can do with that information once he or she receives it, the copyright will not interfere with the ability to obtain the document in the first place.

3. In most cases, having a news purpose in using a document is going to create a fair use exemption, either under traditional fair use or transformative fair use. Most of the lawsuits in this area govern people who want to take state-generated information–typically maps–and then repackage the information for sale elsewhere. Court rulings recognize that only for-profit, commercial use of the protectable parts of creative works is something the state can restrict.

The problem with copyright cases involving maps as a model for other kinds of copyright cases is that only the specific expression of the map is protected, and not the underlying content of the map. That is to say, if I draw a map of Washington, D.C., the information the map contains isn’t protected–the location of the White House is not something I invented and anyone is free to copy that fact from my map. They just can’t copy it along with the “creative” parts–the colors, the fonts, the other window-dressing I gave to those facts.

Very few public records are going to have such a neat division between the functional and the creative. A football coach’s contract, for example, contains specific words in a specific order. You can’t paraphrase them without changing their legal meaning. In that case, the creative parts are the factual parts. The piece of information the public has a right to know are the exact words in the exact order that govern the expenditure of a lot of public money to benefit an individual. In that situation, the entire contract is the “fact,” and the fair use purposes to uploading the document would probably be greater than any intellectual property interest a state could assert.

But I can envision other documents being protected differently. For example, fight songs that are still subject to copyright protection, like the U.S. Air Force Song. These are wholly creative works that have little to no news value (what do you learn from a fight song? Go figure, the school likes its mascot and the players on its athletic teams). At the same time, if the story was about the song itself–for example, a change in lyrics–then the song would have news value, so republishing it would more likely be a fair use.

The take-away from this analysis is that, for purposes of uploading source documents for a news story, it’s useful to analyze documents you get from state entities under FOIA as if they were copyright-protected, and to ask the same questions you’d ask under any fair use analysis: how much of this do I need to use? How important is this to the story? Am I adding a new and different meaning to the meaning the state ascribes to this? And am I doing any harm to the commercial value this document has to the state?

That said, I think the net result is that almost every document you get from a state entity will be something you can upload to the cloud. In fact, while it’s rare for states to assert this ownership, I would imagine the scope of ownership they assert is greater than what they are entitled to control when the end-user is a journalist. Understanding those rights is the first step to ensuring you can identify and disseminate as much of this information as possible.

*Note that people who say the federal government doesn’t have copyrights in its work are resorting to a shorthand that isn’t technically correct. The federal government is precluded from enforcing its copyright domestically by U.S. copyright law; internationally, the federal government is fully capable of asserting its copyright in its creations. It just doesn’t generally do so because it has better things to do than track down people selling bootleg Congressional Budget Office reports in the back alleys of Beijing. But we do ourselves a mischief to keep repeating that there’s no copyright in these works, particularly as our speech continues to reach overseas. There’s actually nothing of which I’m aware that prevents the government from attacking Wikileaks on copyright grounds, inasmuch as the servers are foreign and, as signatory to international conventions on copyright, the United States is treated as a domestic copyright holder in those foreign jurisdictions. This opens up the potential for an end-run around the rule that the government can’t enforce copyright, which is in the U.S. Copyright Act. In other words, the statute that says the U.S. can’t enforce copyright law under U.S. law is itself a U.S. law, and is therefore not a bar to the assertion of federal copyright ownership in other countries.