Sunday, October 12, 2014

Echoes of Reports: May Court Reporter Transcripts be Freely Copied?

Bloggers sometimes feel like a woodsman working in a desolate forest, wondering if reports of our efforts are ever heard in the outside world.  “Page view” statistics are cold and unsatisfying.  What bloggers hunger for is to know whether anything we write actually resonates with our readers or, more fundamentally, whether we are writing purely and solely for our own enjoyment.  

One of my posts which has been well received outside my online forest is Stiffing Court Reporters and Experts Can Be Hazardous to Your Law License.    Court reporters understandably loved it and linked to it.  It is therefore with some trepidation that I undertake this essay, which is bound to make me about as popular in court reporting circles as a turd in a punchbowl.  

Stiffing Court Reporters is an account of Colorado Supreme Court decisions holding that failing to pay the silent partner in every deposition is unethical and subjects an attorney to discipline.  The basis for this result is Colo. RPC 8.4(d) (“conduct that is prejudicial to the administration of justice”).  While Rule 8.4 has a well-deserved reputation for being the Vise-Grips® of the disciplinary rules—a tool that can get the job done, but mangles the law in the process—its deployment is entirely apropos in this instance.  It is not at all difficult to imagine how rapidly the judicial system would grind to a halt if the masters of the stenotype machines began to doubt whether they would be compensated for their efforts when asked to report at the last minute, or work long nights to provide daily transcripts in cases that last for weeks or months.

The question posed here is whether a court reporter has right to additional compensation once the initial transcript have been provided and paid for?  Does a court reporter have a right to command an additional fee—a sort of perpetual royalty—for copies of transcripts not provided directly by the reporter?  Is there an obligation, ethical or otherwise, to pay the reporter for these “echoes of reports,” which may, in some cases, persist for years?  May counsel in a case agree to share deposition transcripts, and/or their costs, on a reciprocal basis?  Here court reporters have not fared well at all.

You Want a Copy, Right? 
Putting ethical issues aside for the moment, a reporter might instinctively look to the law of copyright to support a claim to a recurring fee for reproduction of transcripts s/he has created, but there is no comfort to be found in Title 17 of the U.S. Code.  This may seem paradoxical since the transcript is clearly the reporter’s work product, but the result is consistent with fundamental copyright principals.

"I have a dream today"
Under the Copyright Act, a copyright “subsists . . . in original works of authorship fixed in any tangible medium of expression . . . .” 17U.S.C. §102 (emphasis added).  The “fixation” requirement is fundamental.  Had Martin Luther King, Jr.’s I Have a Dream Speech been completely extemporaneous, or the Gettysburg Address not been famously scribbled on the back of an envelope[1], neither would be afforded protection under the Copyright Act of 1976.  But what of the filmmakers who recorded Dr. King’s speech?  Would they not have a copyright in their audio-visual works?  Of course they would, but not in Dr. King’s text or performance, because their “work of authorship” pertains exclusively to original art created by their recordings – principally the framing and editing.  Indeed, absent an available “fair use” defense, displaying a recording of Dr. King’s famous speech would be mere copyright infringement, since a recording of the I Have a Dream Speech is a derivative work, one of the exclusive rights of copyright owners.[2]  17 U.S.C. §106(2).

Gettysburg Address
Applying these fundamental copyright principals to the work product of copyright reporters, it is clear that a reporter may not claim a copyright in the transcripts of judicial proceedings.  Although the reporter unquestionably is responsible for “fixing” a deposition or hearing “in a tangible media of expression,” it is not the reporter’s original work of authorship.  The authorship, such as it may exist, belongs to those asking the questions and providing the answers – and there is some doubt whether even those participants have any copyright in such recorded proceedings.  

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a case arising out of the Tenth Circuit, affirmed the long-standing principal that “facts” are not copyrightable, and that while compilations of facts may be protected under the Copyright Act, the compiler must display some minimal level of creativity in the selection and arrangement of facts for a factual compilation to qualify as original authorship.  A faithfully rendered transcript is merely a record of the “facts” of a judicial proceeding.  

What about the reporter’s index and other inclusions?  Feist rejected the “sweat of the brow” doctrine as a basis for establishing copyright ownership, requiring at least a modicum of originality, which the work in Feist, an ordinary “White Pages” telephone directory, lacked[3].  A transcript index, while undeniably useful, is a mere concordance, insufficiently original or creative to bootstrap into a claim of copyright ownership by the reporter in the underlying transcript.  

What about pagination and line numbering?  Those of us old enough to remember the Super UBIQ and the WALT II may also recall the epic battle between Lexis and Westlaw over Westlaw’s claim that it owned a copyright in the pagination of its printed judicial reports, which were at the time the de facto, if the not the official, record of judicial decisions in most jurisdictions as well as the federal courts.  In one of the great blown-calls in the history of copyright law, Judge James Rosenbaum granted a preliminary injunction to West based on its claim to a copyright in its pagination.  On a direct appeal, the Eighth Circuit affirmed, and the Supreme Court refused to hear the case at that interlocutory stage[4].  See West Publishing Co. Mead Data Central, Inc., 616 F. Supp. 1571 (D. Minn. 1985), aff’d WestPublishing Co. v. Mead Data Central, Inc., 799 F.2d 1219 (8th Cir. 1986).
The stunning result in West was a dealt a death blow by Feist[5], and by various state courts which subsequently required, as a condition to being designated the “official reporter,” that such legal gamesmanship be foregone.[6]  The pagination and line numbering of a court reporter’s transcript is driven almost entirely by how the page margins are set.  There is simply no originality or authorship in this.

Confirming that a court reporter does not have a copyright in transcripts is a 2009 Opinion of the Tenth Circuit.  There Judges O’Brien, McConnell, and Tymkovich correctly declined to rule that a court reporter was entitled to payment for copies of transcripts which an attorney subsequently obtained through a public records request:

We have found no authority to justify requiring plaintiffs, and derivatively [their attorney], to pay a fee to a court reporter for transcript copy the reporter did not make but, rather, that they legally obtained from another source by independent means.  On the contrary, both broad principles and particular holdings undermine the notion that court reporters may demand a “missed fee” whenever someone obtains a copy of a transcript that can be traced back to an original transcript the reporter had made—and was paid for making—for someone else.
In broad terms, Ms. Bean’s fee claim rests on the tacit premise that court reporters in some legal sense own the content of transcripts they prepare, such that they are entitled to remuneration whenever a copy of a transcript is made (even if they played no role in making the copy).  To accept this premise would effectively give court reporters a “copyright” in a mere transcription of others’ statements, contrary to black letter copyright law. See 2 William F. Patry, Patry on Copyright, Ch. 4 Noncopyrightable Material, § 4.88 (Updated Sept. 2008) (court reporters are not “authors of what they transcribe and therefore cannot be copyright owners of the transcript of court proceedings”).
And there is a line of cases holding that transcripts independently accessed (such as by simply requesting the case file from the court clerk) may be viewed and copied as an alternative to purchasing a copy from the court reporter.  See Kinan v. City of Brockton, 112 F.R.D. 206, 208 (D. Mass. 1986); Hawley v. Hall, 131 F.R.D. 578, 583 (D. Nev. 1990); C.P.C. P’ship Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982); see also Stanley v. Henderson, 590 F.2d 752, 753 (8th Cir. 1979) (noting counsel may obtain copies of appeal transcript from clerk); Schroer v. United States, 250 F.R.D. 531, 535-37 (D. Colo. 2008) (rejecting, under post-2000 Rules . . . [a] party’s effort to require immediate filing of transcript with clerk to enable informal copying, not because copying is improper but because party failed to justify burdening the court with filing of as-yet-unused transcripts).  These cases undercut Ms. Bean’s claim to compensation for transcript copies independently obtained from the City under New Mexico’s Inspection of Public Records Act.
United Transportation Union Local 1745 v. City of Albuquerque, 352 Fed.Appx. 227, 230-31 (10th Cir. 2009 (N.M.)) (footnotes omitted).  See also Lipman v. Commonwealth of Massachusetts, 475 F.2d 565 (1st Cir. 1973) (arising from the notorious Ted Kennedy/Mary Jo Kopechne/Chappaquiddick Island incident, holding that a court reporter has no copyright or other proprietary interest in transcripts which court clerk offered to sell copies of to the public); State v. Watts, 670 S.W.2d 246 (Tn. Crim. App. 1984) (denying a prisoner access to a transcript he had paid for, and holding that payment to court reporter is for the reporter’s services in preparing the transcript, not a purchase of the transcript itself, once the transcript has been filed with the court). 

Court reporters’ efforts to find support for a proprietary interest in their transcripts under various court rules have been largely unavailing, while other theories of recovery, such as “theft of services” statutes, remain untested.  See Mona Savino, Who Owns the Transcript?, Jrnl. of Court Reporting (March 2003).  A recurring theme throughout the decisions, however, is that the courts, while not unsympathetic towards, and mindful of the need to protect, court reporters from parsimonious practitioners, justly view transcripts in judicial proceedings as being affected with a public interest that overrides a reporter’s right to further, much less perpetual, compensation once the original transcript has been prepared and paid for.

What’s a Reporter to do?

It is, of course, possible for a court reporter and a lawyer to agree that the lawyer will purchase all copies of transcripts from the reporter.   Such an agreement would be a simple requirements contract, the consideration for which may be found in the reputation of the reporter for speed, accuracy, availability, and the like.

Theory, however, hits the harsh road of reality in a competitive marketplace, especially with a legally savvy clientele.  Unless every court report imposed such contract terms, any reporter who attempted to do so unilaterally would quickly be in search of another line of work.  Further, were all reporters to band together to force such requirements agreements on the bar, antitrust law would quickly put an end to the practice, just as the Sherman Act did to bar association fee schedules[7].  Moreover, such an attempt to create a “backdoor copyright,” where no actual copyright exists, would likely support an equitable defense that such agreements are unenforceable on public policy grounds – ironically a sort of “copyright misuse” defense, without the copyright.[8]

What is a reporter to do, then?  Simple: Provide great service at a fair and competitive price.  As I frequently counsel my IP clients, legal remedies are vastly overrated compared with market solutions.  A court reporter who provides good service at a fair price is not likely to be underemployed.  Similarly, a reporter who offers to make bound copies of transcripts speedily available at a fair and competitive price—competitive with the Kinko’s down the street, this is—is likely to get the copying business from loyal customers.  

Court reporters who feel a sense of entitlement to receive full-freight for each transcript copy need only study the recent history of the music distribution business to be persuaded that an all-or-nothing-at-all ultimatum is likely to lead to nothing at all.  The reward of the Recording Industry Association of America—which attempted to exact the full price for each copy of a recorded song by employing a zero-tolerance policy and employing a legal cudgel against its customers—was to be steamrolled by Apple, which reinvented the industry, and became the largest distributor of recorded music in under than 5 years[9] as a result of the RIAA’s intransigence.  Court reporters who have been adaptive, offering their clients new and valuable services, such as electronic transcripts, iPad compatible streaming, videography, OCRed exhibits, and case repository services, are not sweating losing out on a few “missed fees” for copies.  As Princess Leia Organa wisely observed, “The more you tighten your grip, Tarkin, the more star systems will slip through your fingers.”

“The more you tighten your grip, . . ., the more star systems will slip through your fingers.”
Just as my father explained to me as a child that the value received from eating in a restaurant is not the aggregate cost of the meal’s ingredients, but rather the service provided, court reporters who market themselves as law partners offering an array of valuable services, are likely to earn and retain customer loyalty.  

As for “missed fees” for transcript copies, court reporters would be wise to heed the hard lesson Apple taught the RIAA.  Rather than view customers as the “enemy” to be sued for each perceived infraction, treat such losses as a cost of doing business and bake them into the price of the initial service; just as Apple prices the cost of lost royalties from consumer music copying into its standard rate of $1.29 per song.  If court reporting is viewed and marketed as a service, and not cheapened as the mere sale of transcripts, overall earnings should rise, provided the service offered is of high quality and legal consumers perceive it as such.

 But What About Ethics?

As bitter a pill as it may be for some court reporters to swallow, absent a promise not to do so, there is simply nothing unethical about copying a transcript after the initial transcript has been delivered and paid for; nor should there be.  The Rules of Professional Conduct are not completely void of political correctness or financial partisanship and protectionism – the most conspicuous example being various state IOLTA requirements.  But these should remain the exceptions, rather than the rule.

Court reporter transcripts are undeniably affected with a public interest.  Just as attorneys are, at least to some measure, servants of the judicial system, so too are those who faithfully record legal proceedings.  Because the Rules effectively protect reporters against those who would cheat them of their initial fee, and because it is within the reporter’s power to price services to account for “missed fees,” reporters cannot fairly complain that the Rules of Professional Conduct should do more.

[1] An utter fiction.

[2] The King Center vigorously protects its copyright in the speech, which was delivered prior to the enactment of the 1976 Copyright, raising some questions regarding its copyrightability.  

[3] A typical Yellow Pages directory fares no better.  See BellSouthAdvertising & Publishing Corp. v. Donnelley Info. Publishing, 999 F.2d 1436, 1442–43 (11th Cir. 1993) (headings and organizational structure of Yellow Pages directory lacks sufficient originality to qualify for copyright protection).

[4] An insider’s account of this litigation is provided by Mark N. Stageberg on his blog.  The parties reportedly settled for a piddling royalty of $50,000 per year.  

[5] See Carl J. Khalil, Are Page Numbers Really Copyrightable?  The Effect of Feist on the West Publishing v.Lexis Case.  Mr. Khalil, writing in 1994, holds out some shred of hope that a copyright might be found in page numbering, which this author does not share.  

Deservedly, West Publishing has not fared well in subsequent decisions.  See MatthewBender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) (finding virtually all elements added by West Publishing to reported decisions, other than its headnotes, syllabus, and key numbers, are unoriginal and therefore unprotected by copyright); and Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998) (rejecting the Eighth Circuit’s logic in West Publishing Co. v. Mead Data Central, Inc., and holding West’s star pagination lacks sufficient originality to qualify for copyright protection).

[6] LEXIS is currently the official reporter for the State of Colorado.

[7] See Goldfarb v. Virginia State Bar, 421U.S. 773 (1975)

[8] Where recognized, the doctrine of copyright misuse bars attempts by a copyright owner to extend a copyright beyond those rights granted by the Copyright Act.  See Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990) (barring a copyright action, and reversing a permanent injunction, where a software licensor’s standard license prohibited a licensee from making their own CAD/CAM die-making software).  See generally John Baker McClanahan, Copyright Misuse As A Defense In An Infringement Action: Lasercomb America, Inc. v. Reynolds, 49 Wash. & Lee L. Rev. 213 (1992).

[9] According to Wikipedia, “[t]he iTunes Store, originally the iTunes Music Store . . . opened on April 28, 2003, and has been the largest music vendor in the United States since April 2008, and the largest music vendor in the world since February 2010.” (footnotes omitted.)