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Lindberg v. Kitsap County

filed: July 12, 1996.

RICHARD E. LINDBERG AND EVELYN C. LINDBERG, APPELLANTS/CROSS-RESPONDENTS,
v.
KITSAP COUNTY, RESPONDENT/CROSS-APPELLANT.



Superior Court of Kitsap County. Superior Court Docket No. 93-2-02744-5. Date Filed In Superior Court: January 21, 1994. Superior Court Judge Signing: James Maddock.

Written By: Turner, J., Concurred IN By: Houghton, A.c.j., Bridgewater, J.

Author: Turner

TURNER, J. -- The Kitsap County Department of Community Development denied Evelyn and Richard Lindberg's request to photocopy site and drainage plans for proposed residential developments, contending that federal copyright law prohibited reproduction of the requested material. The Lindbergs sued under the Public Records Act to obtain the documents. The trial court ordered the County to permit photocopying of the documents, and awarded the Lindbergs a total of $1,110.00 in costs and statutory penalties. The Lindbergs contend on appeal that the trial court erred in failing to award greater penalties. The County cross-appeals the order compelling it to release the documents for copying. We affirm the trial court's order but remand for recalculation of the statutory penalty award.

FACTS

In the Fall of 1993, Evelyn Lindberg and her father, Richard Lindberg requested from the Kitsap County Department of Community Development copies of certain site, drainage, and erosion control plans for several proposed residential developments.*fn1 These documents were submitted to the County between 1987 and 1993 as part of the platting application process.

The Lindbergs needed the documents to prepare comments for public hearings on the projects. Mr. Lindberg, an experienced civil engineer, told the County that he intended to "check site conditions against drawings, therefore, merely reviewing copies of the documents at your office is unsatisfactory."

The County permitted the Lindbergs to inspect the documents, but refused to provide photocopies, stating that to do so would violate federal copyright law.*fn2 The Lindbergs disagreed with the County's determination and sued the County under the Public Records Act, RCW 42.17.340(1).*fn3 They also sought costs and statutory penalties.

On December 23, 1993, the trial court ordered the County to allow the Lindbergs to copy the requested documents.*fn4 At a later hearing, the trial court awarded the Lindbergs costs and statutory penalties totalling $1,110.00.*fn5 The Lindbergs appeal the amount awarded and the County cross-appeals the order compelling it to release the documents for copying.

ANALYSIS

Preemption by Federal Copyright Law

We review de novo agency actions challenged under the Public Records Act. RCW 42.17.340(3). The County does not dispute that the plans sought are "public records" within the meaning of the Public Records Act, RCW 42.17.250 et seq., or that the County and its Department of Community Development (DCD) are "agencies" within the meaning of the statute.

RCW 42.17.260(1) requires an agency to make public records available for copying unless a statute exempts disclosure.*fn6 Because an agency refusing disclosure of public records has the burden of showing that an exemption applies, the County has the burden of proving its argument that federal copyright law*fn7 preempts the Public Records Act. RCW 42.17.340(1). Further, "there is a strong presumption against finding preemption in an ambiguous case and the burden of proof is on the party claiming preemption." Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash. 2d 299, 327, 858 P.2d 1054 (1993) (citation omitted).

Here, the County failed to show that federal copyright law exempted its duty of public disclosure under RCW 42.17.250. The Lindbergs correctly argue that we need not consider preemption if there was no violation of the Copyright Act under the doctrine of fair use. The fair use doctrine developed at common law and is now codified at 17 U.S.C. ยง 107. Fair use confers an equitable "privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without [the owner's] consent, notwithstanding the monopoly granted to the owner." Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983) (quotations omitted). To determine whether the fair use doctrine applies, a court evaluates the nature of the copyrighted work, the purpose and character of the use, the amount and substantiality of the work used, and the use's effect upon the potential market for the work.*fn8 It "is an equitable rule of reason . . . and each case raising the question must be decided on its own facts." Key Maps, Inc. v. J.J. Pruitt, 470 F. Supp. 33, 37 (S.D. Tex. 1978) (citation omitted).

Relying on Walt Disney Prod. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132, 59 L. Ed. 2d 94, 99 S. Ct. 1054 (1979), the County argues that the "fair use" exception does not apply when complete copying of the work occurs. The County agrees that the Lindbergs may use a copy of the plans to critique a proposal without violating the copyright laws, but argues that they are not entitled to a complete ...


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