Copyright © 1995 Publications Council of the College of William & Mary; Henry H. Perritt, Jr.
Summer 1995

SOURCES OF RIGHTS TO ACCESS PUBLIC INFORMATION [FNa1]
4 WM. & MARY & BILL OF RIGHTS J. 179


Henry H. Perritt, Jr. [FNaa1]

INTRODUCTION

Public information is valuable, both economically and as a raw material of democratic government. Public and private sector publishers long have earned a return by selling public information. [FN1] The prospect of selling some public information and a reluctance to have other public information widely known tempts governments and their contractors to restrict access.

The temptations are the same at the federal, state, and municipal levels of both the United States and European governments, [FN2] though the legal frameworks may differ. This Article analyzes the legal issues involved when government entities want to restrict access to their information, either to prevent embarrassment or to keep others from undercutting their revenue expectations from the sale of public information. The Article mobilizes the legal arguments entitling members of the public, including publishers, to access and emphasizes the clash of interests when a government seeks to sponsor a monopoly for access to information in electronic formats. It is in this conflict of interests that new revenue-seeking temptations present the strongest threat to access.

This Article confronts the central tension between the Freedom of Information Act (FOIA) [FN3] and similar state public records laws on the one hand, and intellectual property law on the other. FOIA and similar state laws [FN4] *180 make it difficult to set up state-sanctioned monopolies for the sale of public information. Conversely, intellectual property protection makes it easier to set up state-sanctioned monopolies. Even though literal interpretation of some freedom of information statutes and the Copyright Act seem to permit state-sanctioned monopolies, below the federal level the First Amendment and the Patents and Copyrights Clause of the United States Constitution impose significant restrictions on government efforts to block access and redissemination of public information. In addition to limitations on intellectual property law, antitrust law enters into the legal equation when government seeks not to withhold information altogether, but to sponsor a private monopoly over public information.

In order to provide an appropriate technological and economic context for the legal analysis to follow, this Article begins by explaining the technology for electronic dissemination of public information. It then reviews some microeconomic principles to facilitate evaluation of the various technological approaches.

II. TECHNOLOGIES FOR PUBLISHING PUBLIC INFORMATION

Publications containing public information have distinct attributes of value for users. At the core is raw content. This is the basic message or data, with nothing added to help users find, retrieve, keep, or browse for particular pieces of information. [FN5] Virtually all information products have something added to the raw content. Most products have at least some "chunking" and "tagging" value added. In the print technologies, chunking and tagging value comprises page breaks, running headers and footers, headlines, and subtitles. With digital computer technologies, chunking and tagging value includes things like record and file boundaries, paragraph breaks, and computer readable tags that can be accessed from elsewhere. In addition, more sophisticated products have "pointers," which either point to other parts of the same document, as in a table of contents, index, or cross reference; [FN6] or point to a different document, as in a conventional footnote reference, or a Hyper Text Markup Language (HTML) [FN7] reference to another resource on the Internet in the World Wide Web. [FN8] Beyond that are the less *181 tangible kinds of value-added features, like extra copies, [FN9] availability at other locations, [FN10] integrity assurance, billing and collection value, [FN11] and promotional capabilities. [FN12]

With print publishing technologies, the publisher bundles most of these attributes of value and the consumer buys the entire bundle from that publisher. Digital computer technologies, particularly as they are implemented in distributed and open systems like the Internet, permit unbundling of the attributes of value so that one supplier may supply only raw content, and another may make available one or more other value-added attributes such as pointers that the user combines with the raw content on demand. [FN13] Still other suppliers might make available billing and collection value [FN14] or promotion value.

This facilitation for unbundling the value-added elements in publishing drastically changes the economics of publishing. In fact, it has already contributed to a more competitive marketplace with lower barriers to entry. With Internet technology, a would-be publisher needs only the capital to establish a server that adds a particular type of value, and not the capacity to own the content and other types of value, or to provide a full range of subject matter. The Internet thus provides demand economies of scope. [FN15] A *182 good example of the attractiveness of Internet technology is the "Thomas" system established by the Library of Congress to make congressional materials available in full text. [FN16] Thomas uses a World Wide Web technology on the Internet, [FN17] was established in a matter of weeks, and is free, contrasted with the more limited service of the Government Printing Office which uses mostly dial up access, and was established over a period of several years. [FN18]

The increased likelihood of unbundling the value-added attributes in electronic publishing has particular implications for the publishing of public information. Public information is special in that its raw content is generally considered to be non-proprietary because it is owned by governmental entities which either created it or collected it under legal mandates, whereas most other attributes of value are usually added by private publishers who own intellectual property rights in at least some of the value-added features. [FN19] Under more traditional technologies in which the value-added features were bundled with and made practically inseparable from the content to which they were attached, the publisher gained de facto intellectual property protection for the entire bundle, including the content. [FN20] Under more recent Internet and Internet-like technologies, [FN21] the content can remain easily *183 accessible to end users and intermediaries alike, while the value-added contributions of entrepreneurs is protected appropriately.

III. INFORMATION POLICY PRINCIPLES

To realize the improvements in public access and in the use of public information which technology makes possible, federal, state, and local governments must adopt and implement two key policy precepts. First, they must make electronic formats available when they exist. Second, they must allow for, and promote, a diversity of channels and sources of public information. [FN22]

The first principle, that electronic formats should be made available, is consistent with a policy statement adopted by the American Bar Association in 1990, [FN23] recommendations adopted by the Administrative Conference of the United States (ACUS), [FN24] policies adopted by the President's Office of Management and Budget, [FN25] and legislation passed by the Senate in 1994 [FN26] which is expected to be reintroduced in the 104th Congress in 1995. To deny public access to electronic formats, as the legislature of New Jersey has done, [FN27] denies the public the benefits of publically funded public record *184 formats and significantly impairs public accessibility to public information by increasing the cost of search and retrieval. Indeed, the impairment is so great that the denial of access makes some records practically unavailable.

The policy advocating a diversity of sources and channels of information, endorsed by the ABA, [FN28] the Administrative Conference, [FN29] and the OMB, [FN30] is based on the reality that no one supplier can design modern information products to suit the needs of all users. [FN31] Instead, market forces and entrepreneurial energy are crucial for learning user needs, and for experimenting in the marketplace with different distribution and marketing techniques and different value-added features in order to satisfy those needs. In addition, maintaining a diversity of channels and sources protects against censorship and manipulation of public information for political purposes. In this respect the diversity policy principle is central to the policy of the First Amendment to the United States Constitution and similar policies embraced by state constitutions. The diversity principle is inimical to any state- maintained or state granted monopoly over public information. [FN32]

Of course, many public managers perceive a competing policy interest: the need to find new sources of financing for public activities. [FN33] For them, the best way to raise money for new electronic information systems and public access features is to ensure a sufficient revenue stream from the information access. One obvious way to do that is, in effect, to sell a franchise to the dissemination activity. Strategies for public finance that depend on selling franchises to perform public functions are not new. One of the main ways that King Charles I of Britain financed his government without seeking parliamentary approval of taxes wasthrough franchises. [FN34] Some of the revolutionary fervor for both the English revolution and, more than a century later, the American revolution came from the reaction to perceived corruption associated with the granting of franchises. [FN35] Franchises are currently *185 disfavored because they deprive the public of the benefits of competition, [FN36] although the temptation to set up monopolies continues in the background of public-finance discourse.

Before the Civil War, the American distaste for monopolies extended in some quarters to opposition to the granting of corporate charters and corporations in general. [FN37] Early colonial and state charters in the United States expressed an aversion to state granted monopolies. [FN38] There were, however, others who argued that monopolies may be useful ways to attain public benefits. [FN39] In fact, however, reluctance to raise taxes to pay for public activities led many early state legislatures to revert to the custom of granting monopolies to private persons to perform public activities. [FN40] To be sure, monopolies have a role. Otherwise, there would be no justification for government activities in any area; everything would be privatized. The issue is whether a competitive system, or one that allows monopolies, better serves the public interest.

*186 IV. THE LEGAL FRAMEWORK FOR PUBLIC ACCESS TO PUBLIC INFORMATION

The two most important bodies of law with respect to public information policy are those under the Freedom of Information Act [FN41] and similar state statutes, and intellectual property law.

A. Freedom of Information Acts

1. The Federal Freedom of Information Act

The freedom of information acts grant a right to obtain and copy records held by governmental entities. The federal Freedom of Information Act (FOIA) extends to virtually all records held by federal agencies outside the judicial and legislative branches of government, including electronic formats. [FN42] FOIA is interpreted broadly, and its exemptions narrowly. [FN43] The purpose for which one requests an agency record under FOIA is irrelevant. [FN44] Thus, FOIA is an instrument of the diversity principle. It undercuts efforts to establish information monopolies because it grants private sector re- disseminators an entitlement to public information notwithstanding agency efforts to block access in order to support exclusive distribution arrangements.

The main issues with respect to construction and application of FOIA involve the relationship of private intellectual property in value-added enhancements to public information and the possibility that electronic formats created from paper agency records, which are never under the control of the agency, might be outside FOIA's definition of "agency record." [FN45] Both of these issues are present in Tax Analysts v. United States Department of *187 Justice, [FN46] presently pending in the United States District Court for the District of Columbia. In Tax Analysts, a non-profit publisher of public information, seeks access to JURIS, a comprehensive database of federal judicial opinions, statutes, and agency materials compiled partially by public agencies and partially by West Publishing Company. [FN47] The Justice Department asserts that those aspects of the JURIS database that are subject to claims of intellectual property by West Publishing Company do not constitute agency records or, alternatively, that they are privileged from disclosure by FOIA. [FN48] The JURIS controversy raises a number of issues of more general importance. One obvious issue is whether FOIA permits an agency to decline release of electronic formats in its possession on the grounds that the information contains copyrighted works or on the grounds that the information was made available to the government under license restrictions that prevent its release under FOIA.

Important to the JURIS issue is the analytical framework established by the Supreme Court of the United States in its review of Department of Justice v. Tax Analysts. [FN49] That case involved a 1979 FOIA request by Tax Analysts for district court tax opinions and final orders received by the tax division of the Department of Justice. [FN50] Tax Analysts wanted those materials to facilitate its publication of paper and electronic databases containing judicial opinions. [FN51] It could have obtained the opinions from the clerks of the nearly one hundred district courts around the country, but found that method of acquisition unsatisfactory. [FN52] The district court upheld the Justice Department's refusal to make the records available, reasoning that they had not been "improperly withheld" under FOIA because they were available from their primary sources, the district courts. [FN53] The court of appeals reversed, reasoning that FOIA only allows agencies to withhold records in their possession if one of the nine exemptions applies and none did. [FN54] It also found that the requested materials constituted agency records. [FN55] The Supreme Court determined that the case involved construction of all three jurisdictional terms of FOIA: (1) "improperly" (2) "withheld" (3) "agency records." [FN56]

*188 Two requirements must be satisfied for requested materials to qualify as "agency records." First, an agency must either create or obtain the requested materials. [FN57] The Court declined to narrow the scope of FOIA to records generated by the agency because many studies, trade journal reports, and other materials produced outside of the agencies by both private and governmental organizations form the basis for much agency decisionmaking. [FN58] This concept is important for public access to electronically published materials because of the possibility that some electronic formats or value-added features would be generated by others and transferred to an agency. [FN59] When a government contractor creates the work, the FOIA problem is not acute because the principles of the common law of agency attribute the contractor's acts to the agency. However, there are also situations in which the agency may acquire independently generated information or value-added features such as computer programs or database formats, and use them to organize its information. In these circumstances, the conduct of the creator of the computer programs or formats may not be attributable to the agency. However, the reasoning of the Supreme Court in Tax Analysts nevertheless would find the first prong of the agency-record test satisfied because the agency "obtained" the records.

The second agency-record requirement is that the requested materials be under the control of the agency at the time the FOIA request is made. [FN60] This test contemplates that the materials be in the agency's possession pursuant to the agency's official duties. [FN61] Therefore, the test excludes personal materials in an employee's possession even though they may be physically located at the agency, but includes "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business." [FN62] The Court deflected concern that its decision would make it too easy for agencies to be burdened with FOIA requests for materials readily available elsewhere. It determined that requesters would follow the course of least resistance and generally obtain access to sources like telephone books and other publications from libraries rather *189 than through the FOIA. [FN63] The Supreme Court left "to another day" resolution of the issue as to whether materials purposefully transferred to another agency to avoid a FOIA request would satisfy the control test. [FN64]

The Court rejected the Justice Department's arguments that no FOIA "withholding" was involved because the materials were readily available from other sources. [FN65] Similarly, the Court rejected the Department's construction of the statutory term "improperly," rejecting in turn the argument that FOIA does not require disclosure of materials already disclosed and publicly available, [FN66] the argument that FOIA does not compel disclosure of materials disclosable under other statutes or rules, [FN67] and the argument that there is a broad set of circumstances in which refusal to disclose is not "improper" even though none of the FOIA exemptions applies. [FN68] Justice Blackmun, the lone dissenter, thought that FOIA was not the appropriate vehicle for a commercial enterprise to obtain access to raw material. [FN69] The rejection of Justice Blackmun's views strengthens the inference that FOIA is an appropriate vehicle for private publishers to obtain access to basic content for their publications.

In Tax Analysts the Supreme Court thus suggests that the existence of private property interests in electronic formats does not necessarily preclude the content from being "agency records." The Court also undercuts the argument that an agency can avoid a duty to disclose electronic formats merely because the same content is available in paper formats.

These same propositions are supported by case law involving records preservation statutes other than FOIA. [FN70] The United States Court of Appeals for the District of Columbia Circuit has rejected the argument that paper printouts of electronic communication systems are acceptable legal substitutes for the electronic records themselves. [FN71] It is but a small step *190 from this rejection to the conclusion that the greater utility and accessibility of electronic formats justifies obligating agencies under FOIA to disclose them when requesters prefer them over paper versions. [FN72]

In Petroleum Information Corp. v. United States Department of the Interior, [FN73] the D.C. Circuit rejected an argument by the Department of the Interior that it need not provide a magnetic tape containing a preliminary version of a comprehensive database of land records for certain states on the grounds that the material was available in paper form from other sources and from the agency itself. [FN74] The court also rejected the argument that the preliminary character of the database in the requested form qualified the database for exemption under the deliberative process exemption. [FN75] The mere possibility of adjustment or revision to data does not justify withholding it under FOIA. [FN76]

Disclosure obligations under FOIA do not stop with computer data; the obligations also include at least some computer programs. [FN77] It may be, however, that computer programs which uniquely reveal the thought process of an agency analyst may qualify for the deliberative privilege exemption. [FN78]

2. State Freedom of Information Laws

State public records laws are not identical to FOIA; nor are state court interpretations of similar language in such state statutes necessarily the same as federal court interpretation of FOIA. Nevertheless, there is broad agreement on the basic propositions. There is virtually unanimous agreement among state courts that electronic formats are covered by state freedom of *191 information acts. [FN79] There is also strong authority for the proposition that the requester can specify a computer-readable format when the agency has both paper and computer-readable formats available.

In State ex rel. Margolius v. City of Cleveland, [FN80] the Ohio Supreme Court emphasized that

a set of public records stored in an organized fashion on a magnetic medium also contains an added value that inherently is a part of the public record. Here, the added value is not only the organization of the data, but also the compression of the data into a form that allows greater ease of public access. [FN81]

The court reached its conclusion that computer-readable versions of public data must be disclosed by analogy:

(C)onsider two sets of identical public records kept on paper, with one set organized in a file cabinet, and the other kept as a random set of papers stacked on the floor. Certainly, we would not permit an agency to discharge its responsibility by *192 providing access to the random set while precluding the disclosure of the organized set, even though both sets are . readable' as required by the statute. [FN82]

The Ohio Court of Appeals, relying on Margolius, aptly described the selection of media this way in Athens County Property Owners Ass'n, Inc., v. City of Athens: [FN83]

The basic tenet . . . is that a person does not come--like a serf--hat in hand, seeking permission of the lord to have access to public records. Access to public records is a matter of right. The question in this case is not so much whether the medium should be hard copy or diskette. Rather, the question is: Can a government agency, which is obligated to supply public records, impede those who oppose its policies by denying the value-added benefit of computerization? [FN84]

The court affirmed an order compelling the city to make its diskettes containing rental property information available to the requesters, noting, however, that to the extent the proprietary software was necessary to make use of the data, the requesters must obtain their own copies of the proprietary software. [FN85]

State courts, however, have been less willing to compel agencies to provide access to computerized information that represents the intellectual property of private persons. The court in Athens County Property Owners Ass'n was careful to avoid suggesting that a requester would be entitled not only to database information but also to a copy of proprietary software in order to read the information. [FN86] In Brown v. Iowa Legislative Council, [FN87] the Iowa legislature used public money to buy a database from Election Data Services, Inc., a private entity. [FN88] The database was built on top of census data overlaid with political boundaries. [FN89] The data were readable only with the use of proprietary software which the requester did not *193 have. [FN90] The Iowa Supreme Court found that the requisites of trade secret protection were satisfied and therefore affirmed the trial court's refusal to order disclosure. [FN91] It recognized, however, the conflict between the rights of the vendor to its trade secret and "the rights of citizens to information purchased for the government at public expense." [FN92] It suggested that in other cases, a trial court could order appropriate disclosure of computerized materials clothed with trade secrets in a manner that would reconcile the two conflicting interests. [FN93] In Margolius, the Ohio Supreme Court held that "proprietary software does not constitute a public record under R.C.149.43, even if such software is necessary in order to read public information contained on computer tapes." [FN94] This holding, however, rather than being justified by any policy consideration, presented the narrowest conceivable construction of an earlier case that raised doubts about access rights to computerized information. On the facts of Margolius, itself, there was no request for proprietary software.

Some courts, however, have gone astray and denied access to computer- readable formats when other means of disclosure were available. [FN95] Many of these cases contain facts or ambiguous trial records that weaken the force of their precedental value. [FN96] An early Michigan case suggests that the existence of a commercial purpose weakens or negates an entitlement to access, *194 although careful analysis shows that the commercial purpose was relevant to a balancing of access interests against personal privacy interests. [FN97] In Dismukes v. Department of the Interior, [FN98] the district court held that the federal Bureau of Land Management could supply information contained on a computer tape rather than supplying the computer tape itself. [FN99] Some state courts have followed Dismukes, [FN100] but many have not. [FN101] In an Illinois case, the Illinois Supreme Court held that an agency was not entitled to satisfy a request for computer readable media with paper formats. [FN102] The only bases for refusal recognized by the Illinois Supreme Court were that satisfying a request for computer media would require the generation of new programs or formats not presently possessed by the agency, or that the request for computer media followed too closely on the heels of an earlier request for the same content in paper form. [FN103] The Illinois Supreme Court specifically declined to follow Dismukes. [FN104]

Few state freedom of information statutes obligate an agency to set up new means of access. [FN105] For example, the Georgia Supreme Court affirmed denial of mandamus to compel a clerk of court to set up a means of direct access via personal computers and modems to real estate deed records that were provided on magnetic tape. [FN106] In some cases, the aggregate nature of computer files has led to the conclusion that privacy exemptions shielded *195 them from access even though individual data items within the computerized collection might be accessible. [FN107]

Most of the state statutes, like the federal FOIA, do not allow for interest balancing or for assessing the reasons why a requester wants access. Under such statutes, the only occasion for considering the requester's commercial motivation is when access rights must be balanced against privacy rights under a privacy exemption. [FN108] There, the scope of the privacy exemption depends on whether the invasion of privacy is "unreasonable" or "unwarranted." [FN109] To apply this standard, a decision-maker must consider the interests of the requester to determine whether they should override the interests of the subject. [FN110] Nevertheless, a few courts persist in minimizing the legitimacy of freedom of information requests by electronic publishers. For example, in Kestenbaum v. Michigan State University, [FN111] the court held that the legislature's purpose in enacting freedom of information statutes was not to provide a channel between the government and commercial publishers. [FN112] That proposition overlaps to a considerable extent with the proposition that mandating disclosure of public information to private publishers would constitute the use of public funds for private purposes, which was also a concern of the court in Kestenbaum. [FN113] Both propositions are flawed.

First, the use of policy and purpose to interpret statutes is only appropriate if the statutory language is ambiguous, and most freedom of information statutes are not ambiguous; a literal construction of their terms covers computer-*196 readable formats. Second, the mere fact that an individual or entity may obtain income from an activity that serves a public purpose does not negate the public nature of the activity. When a commercial publisher disseminates public information, it serves a public purpose, the same purpose that is the central justification for the enactment of freedom of information statutes.

This illusory conflict between public and private purposes is implicated in a 1994 amendment to the New Jersey public records law [FN114] which could be interpreted to eliminate any statutory right to obtain public information in electronic formats. The New Jersey Attorney General has taken the position in litigation now pending before the New Jersey Supreme Court that this amendment does deny access to electronic formats and that such denial is good public policy because it prevents private exploitation of materials developed at public expense. [FN115]

In addition to statutory entitlement to public information, many states recognize a common law entitlement. Such an entitlement was used by the intermediate court of New Jersey to reverse a lower court and grant access to electronic versions of tax assessment records. [FN116] These types of common law doctrines usually are uncertain in their scope both with respect to the kinds of information to which they give an access right, and to the kinds of requests or interests that justify access. Unlike FOIA, these common law doctrines balance the interest of the requester in obtaining access against the interest of the public entity in denying access. [FN117]

The policy principles identified earlier in this Article support the interpretation of state records access laws broadly so that they, like the federal FOIA, extend to all electronic formats and present a counterpoise to public *197 agency efforts to set up information monopolies. In other words, state records access statutes should be written and applied in a manner consistent with the 1990 ABA policy statement, [FN118] a consistency expressed by most of the recent state freedom of information judicial decisions.

B. Intellectual Property Law

1. Copyright Protections

The Copyright Act disables federal agencies from obtaining a copyright in public information. [FN119] This disability does not extend, however, to state or local agencies. Thus, from the literal text of the Copyright Act, state and municipal governments can copyright their public information resources if such resources otherwise qualify as copyrightable works. Some states, most notably New York and Colorado, have even asserted a copyright or quasi- copyright in judicial and legislative materials, although the legitimacy of such a position has not been litigated thoroughly. [FN120]

There are several constitutional and statutory arguments based outside the Copyright Act that potentially prohibit or limit state assertion of copyright in public information. There are also arguments based on the Copyright Act itself and on the Patents and Copyright Clause of the United States Constitution which potentially limit state or local copyrights in public information. Under section 102 of the Copyright Act, copyright does not extend to factual information. [FN121] Moreover, Congress lacks the power under the Patents and Copyrights Clause of the United States Constitution to extend copyright protection beyond that which is necessary to provide incentives for creative efforts. In Feist Publications v. Rural Telephone Service Co., [FN122] the Supreme Court of the United States narrowly construed these statutory and constitutional provisions to eliminate the possibility of copyright protection for "sweat of the brow"--the effort in assembling factual information--except when the selection and arrangement of such information involves non-trivial creative contributions. [FN123] In no event can copyright *198 extend to the underlying factual information. [FN124] The Feist doctrine and the underlying limits in the copyright statute and clause upon which it is based should exclude many copyrights in public information. At the very least, these doctrines exclude state or local copyright in the memorialization of physical realities. For example, they should not permit a copyright in survey information or in basic records of land ownership. [FN125]

Beyond that, the Feist analysis should eliminate the possibility of copyright in primary judicial and legislative information. The information contained in a statute, legislative committee report, or a judicial opinion is the recording of an official act. To that extent it is factual. Even if one were to characterize the underlying communicative act--the words uttered by the judge or the legislative body--as the sort of creative expression traditionally entitled to copyright protection, closer scrutiny of the communicative act shows that it lies beyond the power granted by the Patent and Copyrights Clause.

The Feist analysis [FN126] proceeds from the proposition that facts may not be copyrighted because they lack the originality component that is constitutionally mandated as a prerequisite for copyright. [FN127] This "is true of all facts--scientific, historical, biographical, and news of the day. . They may not be copyrighted and are part of the public domain available to every person."' [FN128] There is a reason for that constitutional limitation. The Patents and Copyright Clause gives power to the Congress to grant limited monopolies only for a particular purpose: to create incentives for original expression *199 by authors, and more generally to provide incentives for discovery and other creative effort. [FN129] Such incentives are entirely unnecessary for legislators and judges, who have a legally imposed duty to engage in the communication represented by statutes and judicial opinions. Absent the incentive justification, Congress lacks the power to extend copyright protection to these expressions.

In Campbell v. Acuff-Rose Music, Inc., [FN130] the Supreme Court recognized the appropriateness of analyzing economic incentives in deciding the scope of copyright protection for derivative works. The Court explained that "(t)he licensing of derivatives is an important incentive to the creation of originals." [FN131] Justice Kennedy also recognized the importance of incentive analysis. In his concurring opinion, he expressed his concern that too broad an interpretation of the fair use privilege with respect to parodies and derivatives would "reduc(e) the financial incentive to create." [FN132] The courts of appeals have routinely recognized this centrality of economic incentive as the justification for copyright. [FN133]

When the incentive is not needed, as when the authors in question are legally obligated to perform their creative effort, the Patents and Copyright Clause does not authorize a copyright. This is exactly the situation that exists for the work product of public officials. As long as they are not acting ultra vires, they are performing public duties when collecting and assembling information. Even if some of their selection and arrangement would seem to qualify under the Feist originality test, the creative component of their selection and arrangement does not stem from the economic incentive provided by the copyright law because it is legally mandated and therefore fails to qualify under Feist. Whenever a public duty is the cause of the expression, the incentive justification under the copyrights and patent laws is absent, and any construction of the Copyright Act to protect such official work product would be unconstitutional.

Of course, this statutory and constitutional copyright argument does not *200 eliminate the possibility of extending copyright protection to value- added enhancements to public information so long as they are not supplied during the performance of a public duty. However, even though incentive may seem an appropriate justification for copyright protection, the Court in Feist specifically rejected the idea that originality can result simply from gathering facts. [FN134] It rejected "sweat of the brow" justification for copyright. [FN135] Moreover, even copyrighted compilations are copyrightable only to the extent of their original selection or arrangement. "(A) subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement." [FN136]

Several cases support the proposition that states may not assert a copyright in some public materials even though copyright statutes seem to permit it. Building Officials & Code Administration v. Code Technology, Inc., [FN137] for example, holds that neither judicial opinions nor statutes can be copyrighted. [FN138] The case concerned the Building Officials and Code Administration's right to copyright a model regulatory building code. The plaintiff, Building Officials and Code Administration (BOCA), claimed it held a copyright for its publication of The BOCA Basic Building Code, which it encouraged public authorities to adopt through a licensing program. [FN139] The Commonwealth of Massachusetts adopted and distributed a building code based substantially on BOCA's model code, pursuant to a licensing agreement granted by BOCA. [FN140] The Commonwealth referred persons wanting to purchase a copy of the code to BOCA. [FN141] The defendant, Code Technology, Inc. (CT), a private publisher, published and distributed its own edition of the Massachusetts building code. [FN142] CT's edition was essentially the same as the BOCA edition with a few additional regulations. [FN143] The district court granted BOCA a preliminary injunction against CT, finding probability of success in BOCA's claim that the CT code violated BOCA's copyright. [FN144] The First Circuit reversed, addressing a question not addressed by the district court: "(W)hether inclusion of (the BOCA created materials) . . . (would have) the effect of rendering the (BOCA) materials . . . freely available for copying by anyone," not withstanding *201 BOCA's copyright. [FN145]

CT argued that because the BOCA code was adopted by the state as a set of administrative regulations having the force of law, it had lost its copyright protection and thus entered the public domain. [FN146] CT noted a line of cases dating back to the mid-1800s which held that "judicial opinions and statutes are in the public domain and . . . not subject to copyright protection," and argued this rule should be extended to cover administrative regulations such as the Massachusetts building code since these regulations have the force of law and are enforced by penal sanctions. [FN147] BOCA argued that the building code was not like judicial opinions or statutes because it was written by a private organization at its own expense and not by the government at public expense. [FN148]

Synthesizing from this early case law, the First Circuit reasoned that the public "owns the law" not just because it pays the salaries of those who write the statutes and judicial opinions, but because "(e)ach citizen is a ruler--a law-maker," and therefore "(t)he citizens are the authors of the law." [FN149] Beyond that, the court found that due process guarantees access because it requires notice of legal obligations. [FN150] It also found these principles irreconcilable with BOCA's claims to limit access under the copyright law, and to decide for itself when, where, and how the code was to be reproduced and made publicly available. [FN151] Nevertheless, the court left "the door slightly ajar" for BOCA to argue, based on a more complete trial record, that it was entitled to some protection by relying on the distinctions between privately authored model codes, publicly authored statutes, and judicial opinions. [FN152]

The court in Building Officials analyzed several cases dating from the 1800s to support its reasoning and conclusion. [FN153] In Wheaton v. Peters, [FN154] the Supreme Court stated, without offering much analytical support, that "no *202 reporter has or can have any copyright in the written opinions delivered by this court; and judges thereof cannot confer on any reporter any such right." [FN155]

A later Supreme Court case, Banks v. Manchester, [FN156] invalidated a state law which purported to allow an official reporter to obtain a copyright on the opinions of the Ohio Supreme Court. [FN157] The reporter could not claim authorship of the opinions, and the state was not a "citizen or resident" under copyright law [FN158] and thus could not obtain a copyright for itself. [FN159] The Court stated "that work done by . . . judges constitutes the authentic exposition and interpretation of the law . . . (and) is free for publication to all." [FN160]

In Nash v. Lathrop, [FN161] the Massachusetts Supreme Judicial Court ordered the reporter of decisions to permit a competing publisher to examine and copy opinions in the reporter's custody. [FN162] The court stated:

Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices. [FN163]

The court avoided deciding whether the state itself could hold a copyright in the opinions, deciding only that the state had not granted an exclusive right to the reporter, Little, Brown & Co. [FN164] The court also stated that the publisher had the right to make reasonable regulations to prevent damage or disruption to the orderly management of its official papers. [FN165]

*203 The court in Building Officials also cited two earlier cases, Davidson v. Wheelock [FN166] and Howell v. Miller, [FN167] which held that "although the reporter could obtain a valid copyright on his compilation and analysis, anyone could freely copy the laws themselves." [FN168] Furthermore, "no one can obtain the exclusive right to publish the laws of a state in a book prepared by him." [FN169] If one cuts from another's book the general laws of a state and uses the pages thus cut, and nothing more from the first work, in preparing a competing compilation, then there would be no copyright infringement. [FN170]

In In re Gould & Co., [FN171] the Connecticut Supreme Court held that the reporter of opinions was not entitled by his copyright or by the exclusive franchise granted him by the secretary of state to withhold slip opinions from competing publishers. [FN172] Among other things, the court noted that the reporter's duty was to allow the public to make copies without inquiry as to the requester's purpose. [FN173] It suggested in dictum, however, that the state could copyright the text of judicial opinions through legislation. [FN174]