Does copyright provide shade against Sunshine laws?

There are many situations in which the application of fair use is vitally important.  Educational uses are paramount, of course, and the law of fair use was clearly written with them in mind.  But right up at the top of the list, along with education, should be protecting free speech and supporting governmental transparency. This last value, however, has been put in some doubt by a decision back in August by the Missouri Court of Appeals.  The question, which has arisen in several recent court cases, is whether copyright can be used by a state university to avoid releasing materials that have been requested under the state’s freedom of information, or “Sunshine” laws as they are often called.  The laws are intended to shine light on the workings of government, and these situations where copyright is asserted to prevent the release of records threaten a novel method by which government agencies can avoid public scrutiny.

The cases have been brought by an organization called the National Council on Teacher Quality, or NCTQ, which advocates for tougher evaluation standards for teachers and is sharply critical of many teacher education programs.  The NCTQ has sent requests under numerous state Sunshine laws asking for the syllabi used in various teacher education courses at state universities, and that is where the copyright cases have arisen.  In at least two states the university and/or a teachers union has sought to prevent the release of the requested syllabi by asserting that such documents are the copyrighted property of individual faculty members and that the Sunshine laws do not permit the state to release material when doing so might infringe copyright.

I am coming at this issue slightly backwards, because I was alerted to it by a report in the Chronicle of Higher Education  when, earlier this month, the Missouri Supreme Court upheld a decision refusing to release the syllabi because they were protected by copyright.  That decision, handed down in August by the Missouri Court of Appeals, was something of a shock to me; the reasoning is so bizarre and it seems to try so hard to misconstrue the arguments made by the NCTQ that I can only conclude it is result-driven.  That is, the court decided what it wanted to do and then contorted the law to achieve that outcome.  I want to walk through some of the oddities of this decision, then look briefly at a case from Minnesota, decided a year earlier, in August 2013, and pointed out to the Missouri court, that got the situation right, in my opinion, recognizing that fair use can prevent state entities from using copyright to shield themselves from sunshine laws.

Those other cases provide the first illustration of the oddity of the Missouri decision.  The Court of Appeals was presented with several previous cases from other states where copyright was held not to prevent release of materials that were otherwise subject to Sunshine laws.  But the Missouri panel declined to acknowledge those precedents — they were not obligated to do so, to be sure — by arguing that those rulings had never found that copyright “had no application” in such cases.  But that is not what the NCTQ had argued; they offered the precedents to show that copyright had not, in the past, been permitted to shield the government from disclosure.  The Missouri Court of Appeals misconstrued the point and then, based on this misunderstanding, dismissed the cases and did exactly what it had been warned against — turned copyright into a defense against open government.

Later on in the decision there is another instance where the court again appears to willful misunderstand the NCTQ’s arguments in order to get to its desired goal.  When the NCTQl argues that syllabi are widely distributed already, the Court of Appeals claims that this is an argument based on privacy concerns and, as such, inapplicable to a case about copyright.  But it is clear that the NCTQ is arguing a copyright point related to the “market” for syllabi and the potential for harm (minimal) that would result from handing them over for NCTQ research purposes.  In short, this is part of a fair use argument, to which I will return below.

But first we should note one more oddity in the Missouri case, which is not the fault of the Court — the fact that the copyright ownership of the syllabi was never disputed.  Apparently both sides conceded that the faculty members were the copyright holders.  It might have been a better strategy for the NCTQ to raise the issue of work made for hire here and try to claim that the University, an arm of the state, was the copyright holder and therefore not entitled to use its own copyright to impede disclosure under the law.  Apparently the mutual concession on this point was based on the policy at the University of Missouri which said that faculty held their own copyrights, but this policy could easily be challenged (as most such university policies could) on the grounds that they do not meet the standard of “a written instrument signed by [the parties],” which is what the copyright law requires to return a work made for hire to individual ownership.

So here we have a situation where syllabi are widely distributed but, when requested by a private organization with an undeniably political agenda, are held to be the copyrighted property of individual faculty members and therefore excluded from Sunshine law disclosure because they are “protected from disclosure by law.”  This is clearly a ruling that effectively destroys the Sunshine law in Missouri, since most everything requested under it will be the copyright-protected property of someone.  Maybe in a later ruling the courts could make it clear that copyrights held by the state itself do not justify withholding materials from disclosure, but this case does not say that.  And even if that is the state of the law in Missouri, this ruling provides a huge loophole in the Sunshine law that clever agencies will surely find multiple ways to exploit. Such a situation cries out for a comprehensive fair use analysis, and yet the Missouri Court of Appeals declines to undertake one.

Three reasons are advanced by the Court to explain why fair use is unavailing to protect the Sunshine Law from being gutted by copyright claims; all are unavailing, in my opinion:

  1.  First, the Court of Appeals claims that, as a state court, it “lacks authority” to consider the effect of the Federal copyright.  This is clearly nonsense.  State courts regularly consider questions of Federal law when necessary to resolve an underlying state law issue.  The Minnesota case that was pointed out to the Court of Appeals is exactly such an example, which the Missouri panel chose to ignore.  It should be obvious that when the Sunshine exception refers to prohibitions by law, that necessarily means that the state courts will have to deal with Federal laws, and, in fact, the state court here does consider the impact of Federal copyright law.  It just draws up short at the idea of considering fair use.
  2. The Missouri Court of Appeals also asserts that it cannot consider fair use because there is no case of actual infringement before it, and fair use is an affirmative defense that is raised only after a prima facie case has been presented.  This is a silly excuse in the context.  For one thing, the law clearly tells us that fair use is a right, which, like most rights, functions as an affirmative defense in many situations.  But even more fundamentally, the Court of Appeals is agreeing to the claim that the University of Missouri does not have to disclose syllabi because doing so would involve it in potential copyright infringement; how is it possible to then decline to consider the applicability of a potential defense to copyright infringement as part of its analysis?
  3. The Missouri Court of Appeals gets involved in a convoluted consideration of who would be able to assert fair use in this situation, and appears to throw up its hands in despair.  On the one hand, the Court asserts that it cannot consider fair use because it does not know what the use is that NCTQ will make of the syllabi that might be turned over to it.  But, on the other hand, the Court accepts the University’s argument that it is not trying to enforce faculty member’s copyright — which it would not have standing to do — but is merely protecting itself from committing infringement.  So why is fair use not applicable to the University’s use, an argument the Court rejects without much clear reasoning?

The Missouri decision is, in my opinion, one of the worst considered decisions I have ever seen; a colleague told me that even after being warned about it, it caused her to gasp in surprise and, I suspect, horror.  The ruling is made that much worse because the Court had before it an example of how the situation should have been handled, in the case of NCTQ v. Minnesota State Colleges and Universities, which was decided a year earlier and which got all of the issues raised above right where Missouri struggled to find a way to get them wrong.  There is a report on the Minnesota case available here.  Quite simply, the Minnesota Court of Appeals found that it could, and indeed must, consider fair use when faced with exactly the situation that the Missouri court got so wrong.  In Minnesota they decided that fair use clearly applied to allow a state institution to make and distribute the  the copies needed to comply with the Sunshine law.  It further held that the University could not resist compliance with the State’s open-records law based on a speculative future infringement that might occur when the materials were in the hands of the NCTQ.  In short, Minnesota decline to make copyright into an expansive shield that undermines the key values expressed in open records laws, which is exactly what Missouri did allow.

Fair use exists to prevent the copyright monopoly from undermining key democratic values.  It supports education and free speech precisely because these are key components of a democratic system.  So is transparency in government, and the deeply unfortunate decision made by the Missouri Court of Appeals allows copyright to defeat the intent of the Missouri Sunshine law precisely because it does not recognize that this is a key place where fair use should do its important work.