On Open Government, and, Incidentally, Copyright Exceptions
Getting back to the citizenship application of Zuhair Mahd, about which I blogged before…
As you may or may not remember, September 14 is the deadline for Attorney Weishaupl (on behalf of the United States) to prove that Judge Miller’s order was complied with–that order being that the Department of Homeland Security complete the “name check” required to determine whether to accept or reject an application for citizenship. That September 14 deadline came about because such proof was not available at the “show cause hearing” of August 31. It was not available, as far as those of us gathered there to support Zuhair could tell, because the Department of Homeland Security acts as though its agents are above the law, and as if the word of its agents were law. As if that Department need never carry the burden of proof, but the rest of us must simply take their agents’ word as unquestionable fact.
So much for the recap. Today is the 13th. Tomorrow is the deadline.
While we wait to see what comes of that, I’d like to make a few blog posts in which I share some excerpts from the reporter’s transcript from the hearing. You might have suspected me of exaggerating in my previous posts, perhaps. You might be thinking, “There’s no way the attorney could have been that brazen; surely our reporter is portraying her with excessive negativity?”
You can judge for yourself.
But first, a few words about copyright and reproduction of court transcripts, courtesy of an October 2002 memo [PDF] from the Administrative Office of the United States Court. [Google’s HTML version is here.]
Transcripts of court proceedings are not original works of authorship subject to the protection of the Copyright Act (17 U.S.C. § 101). Even if the transcript were a proper subject of the Act, official court reporters would not be able to seek a copyright because their transcripts are prepared as part of their official duties and thus come within the “work of the United States Government” exception.
That means, if I’m not mistaken, that court transcripts–once filed with the court–go directly into the public domain. Onward:
Therefore, certified transcripts filed with the clerk of court may not contain statements or seals which purport to restrict the distribution or copying of the transcript by the clerk’s office or by the public. Because transcripts filed with the clerk are public records, they may be used, reproduced and provided to attorneys, parties, and the general
public without additional compensation to the court reporter, contractor, or transcriber.
There are some fees involved with having the clerk of court make you a photocopy of the print document or print out the electronic document. But no fee is incurred simply for the privilege of viewing these public records, and there are no restrictions on redistributing them to the general public.
No, the lady doth not protest too much. This isn’t about covering my butt. This is important: We have an open government in the United States. That is the ideal our country’s founders worked to achieve. That ideal is exactly why government documents are not legally subject to copyright protections. It’s not just so that we can make BBS avatars out of the pretty pictures in NASA’s gallery. It’s also to preserve the public’s ability to monitor government activity via documentation of said activity.
To the extent that the current administration is moving to seal more and more records and deny citizens the right to examine its actions, we are moving away from that ideal. And I cannot stress enough how very indicative Attorney Weishaupl’s statements at the August 31 hearing are of this disturbing movement away from the open government ideal.
In the spirit of countering that movement, in the interest of maintaining the ideal of open government and public oversight of government action, I’ll be posting excerpts from the transcript. Stay tuned.