A Lesson in Disclosure By Cochran Douglas on January 08, 2007

Robert Zellner says the Milwaukee Journal Sentinel should not have access to the copyrighted “adult” images on his computer hard drive from the high school where he used to teach.

Zellner does not own the copyrights to the images. Zellner does not even own the computer. But Zellner argues that copyright law prohibits the Cedarburg School District from releasing the materials and bars the Journal Sentinel from accessing them.

Now it is up to the Wisconsin Supreme Court to decide if Zellner is right.

Zellner’s case was sent up to the high court for consideration in October by an appellate court in need of direction, which declined to make a ruling of its own.

“No Wisconsin court has addressed the scope of the law’s copyright exception, whether it can be invoked by a party who does not hold the copyright, and whether it contemplates a blanket exemption of all copyrighted materials,” Judges Harry Snyder, Richard Brown and Neal Nettesheim of the state appeals court wrote in a written certification to the Supreme Court.

In January, the Supreme Court agreed to hear arguments as to Zellner’s ability or “standing” to assert copyright protection without owning a copyright. If the court decides that Zellner can raise a copyright defense to block the release of records, then the court must decide the scope of this exception to public disclosure.

The Reporters Committee for Freedom of the Press is planning to file a friend-of-the-court brief to the Supreme Court in support of the newspaper.

‘Adult’ images found

Zellner’s case began back in January of 2006, when according to court documents, the Cedarburg School District terminated his employment as a high school teacher based upon the school board’s determination that he had viewed “adult” Web sites at school. The local teachers union then filed a grievance on behalf of Zellner with the school district.

After the grievance was filed, the school district ordered a more detailed examination of Zellner’s school computer. Court records show that during the district’s second forensic exam, a CD-ROM of “adult images” found on the computer’s hard drive was created along with a memo detailing the information recovered.

The district presented the CD as evidence at a grievance hearing in February 2006. Following the grievance hearing, reporters for the Journal Sentinel and another local newspaper made public records requests to the Cedarburg School District requesting copies of all new evidence presented by the school board in support of Zellner’s termination.

The school district made Zellner aware of the reporters’ requests and of the district’s decision to release copies of the CD to the reporters pursuant to Wisconsin’s public records law. Zellner and the teachers union filed suit at that point to stop the CD from being made public.

In April, a Wisconsin trial court ruled in favor of the reporters, finding that the CD was public record and ordering its release. The court, however, stayed the order so that Zellner and the union could appeal the ruling.

A record or not?

Zellner and his attorneys argued to the appeals court that under Wisconsin’s public records law, copyrighted materials, such as the adult images found on his school computer, are not “records” as defined by the statute. And because they are not defined as records, Zellner argued the images could not be subject to the public records law.

The trial court had considered the same argument, but agreed with attorneys for the Journal Sentinel and the school district that a strong public policy preference for open public records and a plain reading of the public records statute weighed in favor of finding the CD, and consequently the images on it, part of the public record.

Even if the Wisconsin Supreme Court finds that the materials are indeed copyrighted, it could look to an exception in federal copyright law called “fair use” to determine whether the CD and images should still be disclosed.

Federal copyright law allows for “the fair use of a copyrighted work, including such use by reproduction in copies.” The “fair use” doctrine, as defined by federal law, calls for a case-by-case analysis considering the following four factors: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

The Journal Sentinel has argued that the four factors that make up the fair use of copyrighted material weigh heavily on the side of disclosing the CD and the memorandum in Zellner’s case. The Journal Sentinel has specifically referenced the noncompetitive and noncommercial nature of public records as support for a fair use determination in this case.

For his part, Zellner has argued that the “fair use” doctrine is not a consideration in this case because the copyrighted images do not qualify as records under the open records statute.

Peter Fox, executive director of the Wisconsin Newspaper Association, said that Zellner’s attempt to block the release of public records by use of a copyright exemption is a “specious argument.”

“Essentially, this claim arises from grasping a passage in Wisconsin’s Open Records Law and transposing it into federal copyright statutes,” Fox said. “Simply put — the dots just don’t connect.”

‘Current investigation’
In its request for clarification from the Supreme Court, the appeals court also asked the Supreme Court to rule on Zellner’s other claim, that the CD was exempt from disclosure under a separate provision of Wisconsin’s open records law that precludes the release of public employee personnel records with “[i]nformation relating to the current investigation of . . . possible misconduct connected with employment by an employee prior to disposition of the investigation.”

The trial court ruled that earlier Wisconsin case law supported finding that the disciplinary investigation was completed and the records discovered by the school district were therefore not subject to the “current investigation” exemption to the open records law.

While the state Supreme Court decides the fate of the public records request, Zellner and the school district continue their fight over Zellner’s termination. In September, a federal arbitrator ruled in favor of Zellner and ordered the high school science teacher reinstated. The school district appealed the federal arbitrator’s ruling, and a circuit court judge is expected to issue his opinion on the case sometime in February or March.

Oral arguments in front of the Wisconsin Supreme Court regarding the Journal Sentinel’s public records request are set for March 6 in Madison.




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