Blurred Boundaries: When Copyright and FOIA Collide

Technology has given citizens the ability to interact with government information in a way never before possible. Some exploit this data for commercial gain; others use new analysis techniques to uncover layers of meaning previously unrecognized; still others collate and publish government records to simplify access for everyone else. But what happens when there is an assertion that vital government records are subject to copyright restrictions?

Section 105 of the U.S. Copyright Act explicitly states that works created by the U.S. government are not eligible for copyright protection, but allows the federal government to hold copyrights assigned by others, and does not address the work of third-party contractors hired by the government. Meanwhile, the law regarding copyright ownership for state governmental entities is unclear; Section 105 does not mention state government works, and while some states follow the federal model, others allow their agencies to assert copyright control over their works. Resulting from uncertain standards and various levels of copyright protection, the intersection of public records laws and copyright can be complicated, as recent events have shown.

One case currently being litigated, Caner v. Autry, looks to be a typical copyright infringement case on the face of the complaint. The plaintiff, Dr. Ergun M. Caner, a Baptist minister and public speaker, filed suit in a federal district court in Texas after videos of several of his presentations had been posted online. In the complaint, Caner claims that he sent DMCA takedown notices to defendants Jonathan Autry and Jason Smathers, who both responded by challenging the removals, sending counter-notifications back to Caner.

What the complaint does not explain, however, is that Smathers had obtained one of the videos as a public record from the U.S. Government through a Freedom of Information Act request. The video was of a speech Caner had given in 2005 as "cultural training" to a unit of U.S. Marines preparing for deployment. According to one article, Smathers, a Christian blogger, posted the video to his Viddler.com account in 2010 to "expose allegedly fraudulent claims about a once-popular evangelist's supposed conversion from a Muslim terrorist to a born-again Christian." Apparently, many people had noticed discrepancies in Caner's speeches and publications, and Caner was hoping to restore his reputation with the help of the DMCA.

It is not clear from the complaint who created the actual recordings at issue; Caner was the one recorded, but if the recording was created by government personnel, the copyright in the recording becomes murkier and the exclusion of federal works from copyright might possibly apply. But even if Caner is the sole copyright holder, the use of the DMCA and infringement claims seems misplaced in a case where the federal government released the video to the public as a government record. Smathers should be able to rely on his own interaction with the government, which allowed the release of the recording without restriction, but it is not clear how this argument would fare under the strict terms of the Copyright Act.

The interaction of third-party copyright interests and public records laws came to a head in another recent case,  Pictometry International Corporation v. Freedom of Information Commission. Pictometry arose after a specialized aerial photography business, Pictometry International Corporation, granted the Connecticut Department of Environmental Protection (DEP), among other state agencies, a license to use its images, software, and metadata. The agreement gave the state agencies (as licensed users) the right to reproduce Pictometry's images for use by individuals not covered by the agreement for a fee of $25 per image. The fee could be paid by the agencies or could be passed on to the person requesting the copy. When the DEP received a records request for copies of the aerial images and their associated metadata, it determined that the images were not public records because, as copyrighted works, they fell into an exemption in Connecticut's public records