"Well, it's everything except the manufacturer's operator manual," I replied.
I could just see his frustration level mount. He insisted that they had told him this was all they had, but was I to believe that they didn't know what I was talking about when I had said "manufacturer's manual" over and over again? I wasn't buying it, and it's a shame that he wound up as an intermediary between the stubborn police department and a stubborn litigant (me).
And a few days later, I drafted this motion to compel discovery, demanding that they produce that manual. I mean, they had protested about its copyright status so loud and so long, and had told me to go talk to the manufacturer if I wanted to see it, so they obviously knew what I was talking about and had it in their possession, right? Right??
And during our meeting, Mr. Cho had claimed that my use of 17 USC 107 wasn't germane to demanding the right to copy documents - apparently he'd been told that that's only used for defense against accusations of copyright. Yeah, sure, right, whatever - it's either "fair use" or it isn't! Give me a break already! Do DA interns generally lack critical thinking skills, I wonder? Maybe the 4.0 GPA Stanford law students do their internships elsewhere.
Regardless, I wanted to drive a stake through the heart of that argument once and for all, so I dropped a note to attorney Richard W. Stevens, who I know through our common support of JPFO, and asked for suggestions. He was kind enough to do a WestLaw search for me and came up with the absolutely perfect Evans v. Lerch cite that I include below, along with a variety of other juicy tidbits relating to copyright and trade secret law.
)TRAFFIC-MUNICIPAL COURT, CITY OF SAN JOSE
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
* On May 20, 2000, the defense entered an informal request for discoveryPREVIOUSLY ON SJ LAW...
-----------------------
* On September 12, 2000, defense appeared before the court in a
motion
hearing,
and all discovery requests were resolved save the request for
the aformentioned portions of the manufacturer's operator
manual,
the court indicating that it would be necessary to enter
a subpoena
due to an assertion by the SJPD of copyright
protection.
* On September 19, 2000, a
subpoena for this item was delivered by the
defense to Sgt. Leong (2241), and served by the sergeant
on the records
division of the SJPD.
* Two days later, the defense was informally contacted by Lt. Botar
of the
SJPD in response to the subpoena, and was told once again
that copyright
protection was at issue and, the story changing from September
12, that
the manual was not available even with a subpoena.
To the best knowledge of the defense, no motion for a protective
order
or motion to quash said subpoena was entered by the prosecution
or the
SJPD Records Division, despite Government Code Section
11450.30(a).
* On September 21, 2000, defense sumbmitted a
letter to the court contesting
the claim of the police department that copyright law trumps
a duly-entered
subpoena, listing the provisions of Title
17, Section 107 towards showing
that the intended use falls within the purview of "fair
use," therefore
not constituting an infringement of copyright and thus vitiating
the
"copyright protection" claim of the SJPD in their refusal
to comply
with the subpoena.
* On September 28, 2000, defense submitted a
followup letter to the court
indicating that an attempt to informally obtain the manual
directly from
the manufacturer in Kentucky, as suggested by the prosecution,
was
unsuccessful.
* On October 4, 2000, defense received a
letter from the prosecution,
again asserting the "copyright law trumps subpoena" claim,
and adding
the claim that the manual is in a "secured facility," and
suggesting
that defense subpoena the document directly from the manufacturer.
The defense is intrigued at the possibility of exploring
the murky realm
of the law on the implications of a subpoena issued by a
California
citizen against a Kentucky corporation - given that Penal
Code Section
1326 pertains only to
"witnesses in the state" - but does not believe this
to be a necessary exercise in prosecutorial obstructionism.
The above notwithstanding, Mr. Cho made
arrangements for the SJPD to
deliver the materials to the Office of the District Attorney
where
the defense might review them.
* On Tuesday, October 10, defense
arrived at the office and met Mr. Cho
with the intention of reviewing and copying "that portion
of the RADAR
unit manufacturer's operator manual relating to field use
and operation."
What was presented was not in the slightest bit related to the item soughtREQUESTED DOCUMENT NOT DELIVERED
--------------------------------
It was a slender three-ring binder with an embossed
label on the front
which read "RADAR TRAINING MANUAL," and contained
materials which extolled
the virtues of the 55mph National Maximum Speed Limit, now five
years
repealed. The first booklet was the NHTSA "Basic Training Program
in RADAR
Speed Measurement." Though the document was not dated, the
cars featured
in the photographs had the
look of mid-80's. The second was an apparently
hand-drawn guide to the general principles of radar operation,
promulgated
by a university, and the remainder of the binder contained copies
of
applicable clippings and citations, including a memorandum dated
January 7, 1987.
None of the materials in the binder were the "RADAR unit manufacturer's
operator manual." And indeed, on page
3-4 of the NHTSA publication, it
was further underscored why the manufacturer's manual is required
by the
defense:
"The initial angle of the emitted RADAR beam will determine theThis is in addition to the justification already presented to the court
relative beam width. This initial angle may vary from 11 degrees
to over 18 degrees depending on the manufacturer."
AUTHORITY ON INAPPLICABILITY OF COPYRIGHT LAW AS BARRIER TO DISCOVERY
--------------------------------------------------------
Evans v. Lerch [700 N.Y.S.2d 400 N.Y.Sup., 1999]
Evans opposes the demand by asserting a common law copyright for
works in progress. He purportedly fears that turning them over for
examination raises the possibility that they "may be misappropriated
and pirated." Moreover, he asserts that since the book drafts need
further editing, "plaintiff would suffer professional embarrassment
by peer review of his unpolished work." This argument is clearly
specious. Common law copyright no longer exists. The federal
Copyright Act of 1976, 17 U.S.C. § 301(a), entirely preempted all
state copyright protections. All published or unpublished material
created after January 1, 1978 is now protected by statute from the
moment it is created. Patrick v. Francis, 887 F.Supp. 481
(W.D.N.Y.1995). Evans's copyright is not destroyed by turning the
book drafts over to defense counsel for the limited purpose of
having an expert examine them and the federal copyright statute
provides all the protection Evans requires. Thus, unless Evans
is willing to stipulate that he will not be claiming the future
value of the unpublished manuscripts as damages, Lerch is entitled
to inspect them.
Likewise, the copyright of the Vindicator corporation on the
operator
manual of their VH1 radar gun is not destroyed by turning the document
over to defense counsel for the limited purpose of examining specific
techincal details pertaining to the field operation of the device
used
as the foundation for the issuance of the citation at hand in this
case.
Note also that "all published or unpublished material" is automatically
protected by copyright. If copyright were ample barrier to discovery,
the right to discovery as
set forth in the California Constitution would
no longer exist. One could simply assert "copyright law," as has
the
police department, and that would be the end of it. Like Evans'
claim,
that of the SJPD with respect to the Vindicator VH1 operators'
manual
is "clearly specious."
Therefore, the defense moves that the court compel the San Jose PoliceMOTION TO COMPEL DISCOVERY
--------------------------
The defense further moves that the court provide a continuance from
the
scheduled November 7 trial date of sufficient duration to meet
the
requirements of Penal Code Section
1054.7 upon satisfaction of the
previous motion.
The defense waives time, and respectfully requests that this case
continue
to be scheduled before Commissioner James L. Heath, for continuity's
sake.
The defense thanks the court for its consideration of this matter.
DATED: _________________ /x/___________________________________________
Michael Vincent Pelletier
After this, they finally gave up their copyright claim and admitted they didn't have the manual. Well why didn't they say that to begin with? What do you think the odds are that they ever had the manual in the first place?
They must have been just sooo excited to use their shiny new Vindicator RADAR guns that they ripped the wrapping paper off, tore open the boxes, and started measuring each other's speeds in a gleeful frenzy before rushing off to write tickets... and then the janitor came by and threw out the manuals along with the shredded wrapping paper.
They have at least 67 RADAR units, based on the number of the
one Officer Jackson used, but they don't have a single manual? Yep, that's
right.
