Dunlap Codding congratulates its client Pictometry International Corp., the leader in geo-referenced aerial image capture and visual-centric data analytics, on its recent victory before the Connecticut Supreme Court in Pictometry International Corporation v. Freedom of Information Commission et al. (SC 18724) (January 29, 2013).
The precedent-setting unanimous decision handed down by the Connecticut Supreme Court was officially released on January 29. Pictometry was represented by Dunlap Codding attorneys Joseph P. Titterington, who presented oral arguments before the Court, and Emily E. Campbell.
This case is the first in the nation to examine the interplay between a citizen’s access to public records and the limitations placed upon such access by federal copyright law. Issues of first impression include: (1) whether Connecticut’s FOIA is preempted by the federal Copyright Act to the extent that FOIA permits the copying and distribution of copyrighted materials without the permission of the copyright owner, and (2) whether the “fair use” doctrine may be applied to allow copying and distribution of copyrighted materials without the permission of the copyright owner.
As a result of this case, copyright holders may license their intellectual property to governmental agencies knowing that their federal intellectual property rights supersede the copying and distribution requirements of FOIA. "Citizen access to copyrighted materials is unimpeded by the Court’s ruling and is consistent with Pictometry’s long-standing efforts to help governmental agencies be more efficient and transparent in their use of copyrighted technologies,” according to Pictometry's counsel, Joseph Titterington.
The case also makes clear that the agencies do not need to bear extraordinary costs in providing information—those costs can and rightly should be passed along to the parties requesting the information.
Chris Barrow, Pictometry’s President and CEO, said, “We are happy that the Connecticut Supreme Court reached this decision protecting our intellectual property. This decision encourages companies that hold intellectual property to continue to do business with state agencies, as they know the value of their assets will be preserved."
Background of the Case
Pictometry had contracted with the Connecticut Department of Information Technology (DOIT) to provide a license to the Connecticut Department of Environmental Protection (DEP) for the use of certain of Pictometry’s computerized aerial photographic images and geo-referenced data of the state of Connecticut.
In the recently decided case, the Connecticut Supreme Court construed the state’s FOIA and held that in the event of a conflict between state law and the federal Copyright Act, the Copyright Act prevails.
Specifically, the Connecticut Supreme Court held that:
- Pictometry's software is protected by copyright and that it and the geo-referenced metadata associated with each image are also trade secrets, thereby exempting the software and metadata from the disclosure and copying requirements of the Connecticut FOIA.
- The federal Copyright Act is a "federal law" under the Connecticut FOIA and exempts public records that consist of copyrighted materials from the copying requirements, but not the disclosure requirements of Connecticut FOIA.
- Neither the state Freedom of Information Commission (FOIC) nor a state court may consider whether the "fair use" exemption under the federal Copyright Act permits a third party to obtain copies of copyrighted materials of a state vendor.
- Since the underlying agreement between Pictometry, as licensor, and the Connecticut Department of Information Technology, as licensee, permits certain state agencies to provide copies of the copyrighted images to a requesting party, conditioned upon the payment of an image license fee by the state agency to Pictometry, that license fee may be passed on to the requesting party by the state agency.
These cases were heard by the Connecticut Supreme Court on appeal from a series of decisions originally stemming from a proceeding initiated by Stephen Whitaker before the state’s FOIC.
Under the state’s FOIA, Whitaker sought to obtain copies of Pictometry’s images, metadata, and software which had been licensed to a number of Connecticut state agencies by Pictometry. After being denied copies of Pictometry’s images, metadata, and software, Whitaker appealed to the FOIC. Following an evidentiary hearing, the FOIC denied the request for the software and metadata, holding they were exempt from disclosure and copying requirement of FOIA as trade secrets of Pictometry. While upholding Pictometry’s claim that the images were copyrighted, however, the FOIC ordered the images to be reproduced for Whitaker at a nominal fee, finding that the Copyright Act did not provide an exemption from copying. Pictometry appealed the FOIC's ruling to the state superior court, which in 2010 upheld the FOIC’s decision. Pictometry subsequently appealed (July 2010) the court’s ruling to the Connecticut Supreme Court, and the latter court has now decided in Pictometry’s favor.
Since inventing geo-referenced aerial oblique imaging in 2000, Pictometry International has defined the global standard for visual-centric data analytics, integration and reporting. Professionals across government agencies and commercial market segments use Pictometry’s patented technologies daily, overlaying GIS data and integrating existing systems to enhance productivity, gain unique insights, and change lives. With over 35 million images added annually to its cloud-accessible servers, the company’s unparalleled library now contains more than 210 million images–each mapped to the individual pixel. To learn more, visit pictometry.com or follow @Pictometry.
About Dunlap Codding
Dunlap Codding is an Oklahoma City-based law firm serving regional, national, and international clients. Established in 1957 as Oklahoma’s original intellectual property firm, Dunlap Codding remains the state’s largest and most versatile IP boutique, representing a substantial number of sophisticated client companies in all areas of intellectual property, including litigation.