Preemption and Public Utility Hearing Transcripts

The Patry Copyright Blog: 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…


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Published:
17.05.08
Category:
IP News