Preemption and Public Utility Hearing Transcripts

On March 31st, Chief Judge of the Middle District of Pennsylvania Yvette Kane issued an opinion on the copying of public utility hearing transcripts, Chase v. Public Utility Commission of Pennsylvania, 2008 WL 906491 (M.D. Pa. March 31, 2008), Docket No. 1:05-CV-2375. There is much to commend in the opinion, and much that is unfortunate, especially the result.

Pro se Plaintiff had requested a copy of a hearing transcript from the PUC, at the cost of copying. The PUC replied that plaintiff could view the transcript and take notes, but that it “was not permitted to make you copies from the transcript.” The “not permitted” language was circular, since the PUC was free to make its own policies about the making of copies, but chose to enter into a contract with a private reporting company that vested in the company the exclusive right to make such copies. The company charged the public a copying fee of $2.80 per page. Such arrangements are common in many areas of public life, including court transcripts in federal court. That they are common does not make them lawful or good policy even if lawful.

There is one unusual twist in the Pennsylvania PUC situation, contractual language in the agreement with the reporting agency stating “[A]fter 5 years, transcripts will be deemed to have entered the public domain. As such, the Commonwealth shall have the right to provide copies of any transcripts 5 years old or older to any interested person for the amount per page rate as fixed by the Commonwealth.”

Plaintiff sought a declaratory judgment challenging the contract as preempted under Section 301 of the Copyright Act and as violative of the First Amendment. The initial inquiry by the court was one of standing, and here the court inched up to agreeing with plaintiff that through 42 U.S.C. section 1983, Section 301 of the Copyright Act “guarantees an individual right to copy works in the public domain by restricting the state’s ability to create a ‘monopoly.’” The PUC did not disagree. The Court , however, didn’t take the plunge, which would have been quite noteworthy. Instead, it found standing based on the Supreme Clause, holding: “It is well-established that a plaintiff may seek injunctive and declaratory relief to invalidate a state regulation that is preempted by federal law.” Despite winning the standing victory, plaintiff lost the merits war.

On the merits, the Court engaged in the classic two-prong express (that is, statutory) analysis: did the subject matter fall within the scope of copyright, and if so were the rights at issue equivalent to those granted in Section 106 of the Copyright Act. The Court’s opinion started out well enough, rejecting the PUC’s argument that the subject matter prong of the preemption was not satisfied because the hearing transcripts were not protectible; appropriately, the Court held that Section 301 also preempts unoriginal material of a general type that can be protected: a bunch of people reading written statements and responding to questions and answers is no different from interviews, which are protected. Here the lack of protection was a matter of policy – the same one that should apply to statutes. (See the earlier wacka wacka huna kuna blog on Oregon here).

It is at the equivalent rights prong of the preemption analysis that the opinion falters. The PUC agreed that its policy “confers a form of proprietary right in the transcripts to the reporting Agency,” a concession forced by the above-quoted language of the contract which acknowledged a 5 year copyright in the reporting agency. It is in addressing this fact – and the ability of citizens to view the transcript at the PUC and to take notes – that the Court went off the rails by relying on ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), Judge Easterbrook’s infamous shrink-wrap license opinion. The enforceability of shrink-wrap licenses and the ability of a state to create a copyright interest in public officials’ hearings bear no resemblance to each other. The similarity the PUC Court found was that as in ProCD the right created by the PUC was allegedly a contractual right, not a right established by law. But this equation is false: it was the PUC’s law (or regulation) that was being challenged; the case was not a contract action by the Reporting Agency against the consumer, which is the correct analog to ProCD. Plaintiff was challenging what even the PUC admitted was the creation of a 5 year exclusive right to make photocopies of the transcripts, and in this respect, the argument that citizens could view the transcript at the PUC’s offices (viewing is not a right granted under the Copyright Act), or take notes (fair use) is irrelevant.