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HomeMy WebLinkAbout03-24-2004 Copyrighted MaterialsBROWN, SALZMAN, WEISS & GARGANESE, P.A. Usher L. Brown ' Suzanne D'Agresta' Anthony A. Garganese° Gary S. Salzman* John H. Ward' Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer *Board Certified Business Litigation Lawyer °Board Certified City, County & Local Government Law Attorneys at Law Offices in Orlando, Kissimmee, Cocoa & Viera March 24, 2004 AGO 2003-26 Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 Re: Copyright materials Dear Andrea: MAR 7 5 2004 (.':IT) OF WINTI=R SPRINGS Debra S. Babb-Nutcher Joseph E. Blitch Jeffrey P. Buak° John U. Biedenharn, Jr. Lisa M. Fletcher Douglas Lambert Katherine Latorre Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary Of Counsel I want to bring the enclosed Attorney General Opinion 2003-26 to your attention regarding the inspection and copying of copyright material. You should share this material with your staff. In this opinion the Florida Attorney General opines that records custodians should refrain from personally copying copyrighted materials when those materials are requested as part of a public records request. However, copyrighted materials are subject to inspection under Chapter 119, Florida Statutes and the Federal Copyright Act. In addition, in 1997 the Attorney General suggests that the records custodian should advise individuals seeking to copy such records of the limitations of the Federal Copyright law and the consequences of violating its provisions. If an individual insists on receiving a copy of a copyrighted document, you may want to suggest that the individual contact the publisher of the material and request a copy. Alternatively, the City may be able to purchase an extra copy of the copyrighted material and pass the cost on to the individual making the public records request. Further, the person could make their own copy and assume the risk of violating the Copyright Act. 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.oriandolaw.net • Email: firm@orlandolaw.net Andrea Lorenzo-Luaces, City Clerk March 24, 2004 Page 2 If you have any questions regarding this matter please do not hesitate to contact me. ;Velyurs, Anthony A. Garganese AAG/Ig City Attorney Enclosures cc: Ron McLemore, City Manager (w/out enclosures) Y Na. ACO 2003-26 http://web2. westlaw,co m/result/document... F4970717-2DE5-487A-AE2E-DOE2AE7E9C84 %7d Office of the Attorney General State of Florida *1 AGO 2003-26 June 6, 2003 RE: DEPARTMENT OF STATE-, ►11' ; G; C � t-COMPUTERS -VOTING SYSTEMS- public record status of maintenance manuals for voting systems. ss. 101.015, 101.017 and 119.07(1), Fla. Stat. Mr. Gerard T. York Acting General Counsel _ Department of State R.A. Gray Building 500 South Bronough Street, Room 123 Tallahassee, Florida 32399-0250 Dear Mr. York: You have asked for my opinion on substantially the following question: Are maintenance manuals for voting systems that are supplied to the Department of State, Bureau of Voting Systems Certification, pursuant to the Florida Voting Systems Standards and Chapter 101, Florida Statutes, public records subject to inspection and copying under section 119.07(1), Florida Statutes? Section 101.017, Florida Statutes, creates a Bureau of Voting Systems Certification (bureau) within the Division of Elections (division) of the Department of State. The bureau provides technical support to the supervisors of elections and is responsible for voting system standards and certification: Section 101.015, Florida Statutes, requires the Department of State to adopt rules establishing minimum standards for "hardware and software for electronic and electromechanical voting systems." The statute requires that these rules contain standards for: "(a) Functional requirements; (b) Performance levels; (c) Physical and design characteristics; (d) Documentation requirements; and (e) Evaluation criteria." fFN11 As set forth in Rule 1S-5.001, Florida Administrative Code, the Florida Voting Systems Standards, Form DS-DE-101, contains "the minimum standards, procedures for testing to determine if those standards have been met, and procedures for certifying and provisionally certifying compliance with the minimum standards." These standards are available in booklet form from the Division of Elections, Bureau of Voting System Certification. Pursuant to this rule, an application for certification of a voting system must be of 6 1/23/2004 3-9.1 pn;r Fla. AGO 2003-26 http://web2.westlaw.com/result/document...F4970717-2DE6-437A-AE2E-DOE2AE7E9C84%7d accompanied by supporting materials including a "[t]echnical data package." The package must include a "[s]ystem operator's manual;" "[e]nvironmental requirements for storage, transportation, and operation, including temperature range, humidity range and electrical supply requirements;" " detailing system functionality;" and "[t]he A [u]ser manuals elements of the system". FN2 The division examines the submitted all documentation and other material accompanying the application to determine whether the voting system is in compliance with the Florida Voting Systems Standards. JFN31 Further, the standards require the applicant for certification to "identify all corrective and preventive maintenance tasks and the level at which they shall be performed." IFN41 These include operator tasks, maintenance personnel tasks, and factory repair. IFN51 As described by the standards, maintenance personnel tasks include *2 "all field maintenance actions, which require access to internal portions of the equipment. They shall include the conduct of tests to localize the source of a -. - malfunction; the adjustment, repair, or replacement of malfunctioning circuits or components; and the conduct of tests to verify restoration to service." JFN61 As noted in communications with your office, this information would typically be included in a user or maintenance manual. The Department of State recently received aR:�°:' request to copy a system maintenance manual submitted to the Bureau of Voting Systems Certification as required by the Florida Voting Systems Standards. Vendors submitting materials to the bureau have expressed objections to the bureau providing copies of such material in response to WOW � p p!���.�..ff���n�ds requests, pointing out that the o�yr11 't on the material has been recorded with the United States opgh Office. Thus, you ask whether, under such circumstances, the Department of State may reproduce and distribute copies of a system maintenance manual made part of a data package submitted by a vendor to the Bureau of Voting Systems Certification, pursuant to Chapter 101, Florida Statutes, and the Florida Voting Systems Standards. Florida's Public Records Law, Chapter 119, Florida Statutes, requires that all public records made or received pursuant to law or in connection with the--` transaction of official business by any public agency must be open --for personal inspection by any person. fFN71 For purposes of the law, a "[p]ublic record" is any document, paper, letter, map, book, tape, photograph, film, sound recording or other material, regardless of the physical form or characteristic, which is "made or received pursuant to law... or in connection with the transaction of official business by any agency." [FN81 Thus, the form of the record is irrelevant; the material issue is whether the record is made or received by the public agency in connection with the transaction of official business. It is unquestionable that system maintenance manuals submitted to the Bureau of Voting Systems Certification, as required by the Florida Voting Systems Standards, are records received by the Department of State in its official capacity for official state business. Thus, these manuals are public records subject to the requirements of the Public Records Law. However, your question also involves the application of the federal copyright law to this material. The federal copyright law vests in the owner of a copyright, subject to certain limitations, the exclusive right to do or to authorize, among ! of 6 3/23;2001 1-23 PN-t v GVU3-Z6 http://web2.westlaw. com/result/document...F4970717-2DE5-487A-AE2E-DOE2AE7E9C84%7( other things, the reproduction of the copyrighted distribution of -the copyrighted work to the public by sale o rotherat d the ownership. FN9 The unauthorized reproduction of co ansfer of constitutes an infringement of such co ri ht. Co copyrighted work in copies is and all persons concerned therein are pointy and severally liable as nointa tort tort-feasors, LtN10 In 1990, Congress amended the federal copyright law to specifically provide that relief for infringement is available against "'anyone' includ[ing] any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity."' FN11 *3 Where a federal statute such as the copyright law expressly preempts a field and operates to bar specified acts or conduct, the Supremacy Clause of the United States Constitution, Article VI, U.S. Constitution, provides that the federal law will prevail and exclusively control such matters. LEN12I Consequently, the state is prohibited from enacting or enforcing any state law or regulation that conflicts or interferes with, curtails, or impairs the operation of the federal law. rFN131 Thus, state law may not operate to authorize or permit that which the federal law proscribes - in this case, the unauthorized reproduction of copyrighted work in copies and the unauthorized distribution of copies of the copyrighted work to the public. A distinction must be made, however, between the custodian of pubic �eiors reproducing and distributing copies of copyrighted work and the custodian permitting public access to the records for inspection and examination. IFNI41 It has generally been the position of this office that nondisclosure of records that would otherwise be public under state law may be effected only when there is an absolute conflict between state and federal disclosure provisions. IFN151 While Florida law would permit the disclosure of the maintenance manuals pursuant to section 119.07(1)(a), Florida Statutes, for both inspection and copying purposes federal law limits only the copying of these materials. However, the federalYh law provides the owner of a particular copy the right to display that copy publicly to viewers present at the place where the copy is located without the authority of theQYi'g owners. FN16 This office, in a line of opinions dating from 1982, has counseled records custodians that while copyrighted material may be available to the public for inspection and examination, the unauthorized reproduction and distribution of copies of copyrighted material to the public may be prohibited under the federal copyright law. FN17 Attorney General's Opinion 82-63 is particularly close factually to the issue you have presented. In that opinion, the Secretary of a state agency asked whether safety plans or manuals required by statute to be submitted to the agency would be available to the public under Chapter 119, Florida Statutes, if they were protected under the federal �0 `,J t law, This office recognized that the records involved were very expensive to produce, valuable, and thereby susceptible to plagiarism. There was also no question that these records required by statute to be submitted to the department were . _ ,� Reading the federal pYl law together with Florida's PIS" ° Law, the opinion acknowledges that Chapter 119 requires the custodian to allow access to records but distinguishes between permitting access to the records of 6 1/21/`M04 "'A PM Fly. AGO 2003-26 http://web2.westlaw.com/result/document...F4970717-2DE5-487A-AE2E-DOE2AE7E9C84%7 c and reproducing or distributing copies of the records. The opinion concludes: *¢ "[A]gencies should not reproduce, or permit the reproduction of, or distribute copies of copyrighted work to the public but may permit the public access to copyrighted work in their possession for examination and inspection purposes only:" In fact, the opinion recommends that the department should not permit the reproduction or copying of copyrighted work by the public without the express authorization of the copyright owner. A more recent opinion by this office, AttorneyGeneral's O inion 97-84 struck a balance between thepywg' law and Florida's 'Icn = oIrc�s Law that recognized the doctrine of "fair use, that is, even if a record is copyrighted, federal law permits copying under certain conditions. For example, notwithstanding the exclusive rights of the p'yg owner, "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of �aYr'�gfi`." FN18 In an effort to avoid making records custodians the guarantors of compliance with "fair use," the 1997 opinion suggests that records be made available and that individuals seeking to make copies for their own use be informed of the requirements of the federal co'PV,,fj law. f FN 191 The opinion counsels records custodians that they "should advise individuals seeking to copy such records of the limitations of the federal opy� j` law and the consequences of violating its provisions." The opinion does not advise a records custodian to reproduce copyrighted material for distribution but suggests measures to be taken to protect the custodian from liability3in the event that materials which are subject to the ?R law and the 'O, -0 eticQ ds law are copied for unauthorized purposes. Based on these considerations, it is my opinion that the federal 1"",' � ��. h law, when read together with Florida's! Law, authorize hand requires the custodian of records of the Department of State to make maintenance _ manuals supplied to the Bureau of Voting Systems Certification, as required by the Florida Voting Systems Standards and Chapter 101, Florida Statutes, available for examination and inspection purposes. With regard to reproducing, copying, and distributing copies of these maintenance manuals which are protected under the federal c4°p"t law, state law must yield to the federal law on the subject. The Department of State, as the custodian of these records, should advise individuals seeking to copy such records of the limitations of the federal Qpyir,gh law and the consequences of violating its provisions; such notice may take the form of a posted notice that the making of a copy may be subject to the asp Jg law. However, as this office has advised previously, it is advisable for the custodian to refrain from copying such records himself or herself. Sincerely, *5 Charlie Crist Attorney General of 6 =ta. XG0 2003-26 http://web2.west]aw.com/result/document...F4970717-2DE5-487A-AE2E-DOE2AE7E9C84%7d FN1 . Section 101:015(1)(a)-(e), Fla Stat. FN2 1. See, Form DS-DE-101, eff. 4/02, P. 9. FN3 . Id. at p. 11. FN4 . Form DS-DE-101, supra, at p. 44. FNS . Id. FN6 . Form DS-DE-101, supra, at n. 4. FN7 . Section 119.01, Fla. Stat., and s. 119.07(1)(a), Fla. Stat. FN8 . Section 119.011(1), Fla Stat. FN9 . See, 17 U.S.C.A. s. 106. FN10 . Id., s. 501(a) and (b) (anyone who violates any of the exclusive rights of the copyright owner is an infringer and the owner of the exclusive right under a copyright is entitled to institute an action for infringement). And see, Leo Feist v. Young, 138 F. 2d 972 (7th Cir., 1943), Ted Browne Music Co. v. Fowler, 290 F. 751 (2d Cir., 1923) (for the proposition that copyright infringement is a tort and all persons concerned therein are jointly and severally liable as joint tort-feasors). See also, Mills Music, Inc. v. State of Arizona, 591 F 2d 1278 (9th Cir., 19791, holding that suits are authorized against states for infringement of the exclusive rights of a copyright holder under the federal copyright act; and s. 768.28, Fla. Stat., which waives the state's immunity for liability for torts for itself, its agencies and its officers and employees. But see, Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct 1114, 1185 fn. 16 (1996), in whi-ch the U.S. Supreme Court, in a footnote, discusses the authority of Congress to abrogate the sovereign immunity of states through such laws as the copyright, bankruptcy and antitrust laws. It is noted in that discussion that the Court never "has awarded relief against a State under any of those statutory schemes[.]" FN11 . See, 17 U.S-.C.A. s. 511(a)(added 1990). And see, 17 U.S.CA. s. 511(b) which provides: "In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infringing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney's fees under section 505, and the remedies provided in section 510." And see, Unix System Laboratories, Inc v Berkeley Software Design, Inc., 832 of 6 1ni/9nna i-?i Pm Fla. fCGp 003-26 http://web2.westiaNv.com/result/document...F4970717-2DE5.487A-AE2E-DOE2AE7E9C84°'o7d F.Supp. 790 (D N J 1993). FN12 . See, 17 U.S.C.A. s. 301. FN13 . Chicago and North Western Transportation Company v Kalo Brick &The Company, 450 U.S. 3111101 S Ct 1124, 67 L Ed 2d 258 (1981); Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U S ills 105 S.Ct 2371, 85 L Ed 2d 714 (1985); Bonito Boats Inc. v. Thunder Craft Boats Inc. 489 U.S. 141 109 S.Ct. 971 103 L.Ed.2d 118 1989 (involving a discussion of preemption and patent law); State v. Stepansky, 761 So 2d 1027 fFla. 2000). FN14 . This office initially made this distinction in Op. Att'y Gen. Fla. 82-63 (1982), in which it was concluded that agencies should not reproduce, or permit the reproduction of, or distribute copies of, copyrighted work to the public but may permit the public access to copyrighted work in their possession for examination and inspection purposes only. FN15 . See, Ops. Att'y Gen. Fla. 82-63 (1982) and 80-31 (1980). FN16 . 17 U.S.C.A. s. 109(b). See also, 17 U.S.C.A. s. 101, whichprovides that a public display of a work does not of itself constitute publication., FN17 . See, Ops. Att'y Gen. Fla. 82-63 (1982); 90-102(1990), 95-37 (1995), 97-84 (1997); and 97-87(1997). FN18 . See, 17 U.S.C.A. s. 107, which states that in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." FN19 . Cf., 17 U.S.C.A. s. 108(f)(1), stating that nothing in the section "shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law[.]" Fla. AGO 2003-26, 2003 WL 21313387 (Fla.A.G.) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works of 6 z;�zr�nnn z.�� nr.r