City Fights Blogger On Display of Public Information 134
rokkaku writes "When the gadfly blogger Claremont Insider went searching for information about employee compensation on the city of Claremont web site, they never expected to find scans of pay stubs for all the employees. Nor did they expect the city attorney to demand that they remove copies of those pay stubs from their web site. They found it especially odd since, according to California law, the compensation of public employees is public information."
Bizarre legal argument (Score:2, Interesting)
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would."
They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted.
>"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them."
An image *is* a copy.
>Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication.
Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
\==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
Re:Except... (Score:2, Interesting)
Re:Too much info (Score:1, Interesting)
We would not have posted the 2 (out of 283) that we did if there were personal identifiers on the stubs.
Here is a link to a local newspaper's article on the public nature of the documents:
http://www.dailybulletin.com/news/ci_6888125 [dailybulletin.com]
Re:Except... (Score:3, Interesting)
You are correct that Wisconsin is not like California; I wasn't implying it was similar in every legal respect. However, the information in my example is also completely public...but it's no longer publicly accessible on-demand on the internet, and there is no legal compulsion requiring the government - whether it is the state of Wisconsin or a municipality in California, under their respective laws - to provide it via the internet or in any particular fashion.
Note also that I didn't say that the images of the paystubs *certainly* weren't public, just that while (some of) the information *on* the paystubs may be public, it doesn't necessarily follow that images of the paystubs themselves are public. That aside, any copyright argument is indeed puzzling. My only point was that there was likely more to the story, and the city seemingly didn't intend for this document to be publicly accessible, without regard to the fact that any or all of the information *on* them is public; further, it sounds like at least some of the information isn't technically public, whether you obscured it or it wasn't legible. Even if it is due exclusively to their bumbling incompetence, if the document wasn't intended to be public, I believe the city has some standing to ask for the removal of content of the document, even if the lion's share of it is public information. Further, as I'm sure you're aware - and aside from what the city believes about minutia other than compensation on the pay stubs - any member of the public can still obtain compensation information on city officials if desired.
That was my only point: that it doesn't have to happen via the internet. Also, what would happen if you provided all of the information that is most certain to be public information from the pay stubs, but not the images of the pay stubs themselves? Is it your feeling that there would be a problem? If not, I don't see what the issue is, here.
Wow, that is one clueless lawyer (Score:3, Interesting)
First, he seems unaware that if something is copyrightable, copyright is automatic. So, if paystubs are copyrightable, the city would not have to do anything special. They would be copyrighted the moment they are printed.
Second, he says that they aren't copying the paystubs, just making images of them to display, so it would not fall under copyright. An image of a document is a copy as far as copyright law is concerned, so that's strike two.
finally, he says that this would be covered by fair use because there is no market value in the pay stubs. Affect on market value of a work is just one of the four factors considered in determining whether a use is fair use. Strike three.
Lawyers who do not specialize in copyright often make mistakes, but this guy seems to be setting some kind of record here!
Re:Pay stub != compensation (Score:3, Interesting)
"there were no Social Security numbers, no dates of birth, no personal identifiers. The documents only contained name and pay information"
Two things.
1. AOL didn't think there were any personal identifiers in the search archives they released to the public either. Yet plenty of people ended up being tracked down from what was in that data. The point being, "no personal identifiers" is not a determination that you have the right to make about somebody else's data.
2. What pay stub have you ever seen that "only contained name and pay information"? I have never seen such a pay stub.
Not to mention, let's assume "salary" is public information. Does that mean elective deductions are also? What if I choose to have 10% of my pay put into a 401(k)? Is that public information? It's on my pay stub. I would highly doubt that deduction breakdowns are included in the law making "salary" public info. If someone got my pay stub and saw a large 401(k) deduction, and that pay stub also had my name on it and other personally identifiable info (which it does, whatever this guy thinks), then somebody now knows that at my rate of pay, and assuming a period of years of work, I might now have more than $100,000 in a 401(k) account... and if he has my pay stub, he really has all the info needed to access it. (A few phone calls is all it would take.)
You still don't see the problem here? Do you actually have a job? I mean, have you ever seen an actual pay stub?
Re:State Employees (Score:2, Interesting)
Simple Courtesy..... (Score:2, Interesting)
I mean for example, just because I have the right to access public employee information doesn't mean that I have to go around publicly displaying the employee's pay stubs.
Some people might disagree, saying that we should be able to find out what people are being paid (as ALOT of public officials get paid six, sometimes seven, figures just to play golf and ski), which is true, but that doesn't justify the overt publishing of employee's personal information. If you want to find out what public officials are earning, you should just do a simple FIA request yourself. Keep in mind that the claim is to keep an eye on excessive spending of taxpayer dollars. However, what about the wasteful spending of funds by corporations? Corporate executive abuse their funds too, not just governments.
Naysayers should ask themselves if they would publicly post their own information. Think about it: If you are a public official, and someone publishes your personal information, it is ok, while if someone posts your personal information, and you are NOT a public official, it is an invasion of privacy. So what? A job is a job is a job. Period.
My beliefs are this: If you were elected to office through a public election, then your information should be available. If you were hired in the same way that private employees are, then your information should be kept private, with the obvious exceptions for budget analysis and allocation (departmental allocation, travel expenses, office expenses, fees, etc.), but amounts/figures only.
Why should we force the city street sweepers, meter maids, library Reference Desk clerks, or librarians to be publicly scruitinized and have their own personal privacy invaded and compromised in the same way as police chiefs, fire chiefs, city council members, and mayors? (I think that there is less of a chance that a Librarian is corrupt and being overpaid, rather than the mayor or council members.)
Just because you work for the city/state/federal goverment, and not a private business doesn't mean that your personal information should be available for the world to see and become somebody's bitch.
Simple Rule:
Elected Official (Term Jockey) -> Public Information.
Hired Employee (Clock Watcher) -> Private Information.
Remember: Just because you have rights doesn't make it right to abuse them by being a dick.
Be polite and respectful of other people's privacy, even if you have the right to abuse and violate it.
Re:Wow, that is one clueless lawyer (Score:3, Interesting)
I thought it was hard to pass the California bar, how did these idiots ever do it?