Public Policy, or Private Use?

On October 3rd, two Pennsylvania public school districts, the Mars Area School District (“MASD” or “Plaintiffs”) and South Side Area School District (“SSSD” or “Plaintiffs"), filed a Complaint against the Pennsylvania School Boards Association (“PSBA” or “Defendant”) stating that the PSBA improperly asserted copyright over public policies.

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In early September of this year, both Plaintiffs received Cease-and-Desist (“C&D”) letters from PSBA about the districts’ policies and annotations, which were created using the PSBA’s policy service. In the C&D letters, the Defendant asserts that the Plaintiffs may no longer use materials created through PSBA as the Plaintiffs have terminated their respective subscriptions. For background, both MASD and SSSD were formerly members of PSBA, but they are no longer associated with PSBA.

However, the Plaintiffs assert in their Complaint that the Defendant does not have copyright ownership of the materials, as they are public policies. The Plaintiffs argue that they “are the legislative bodies responsible for contemplating, considering, and passing school district policies,” acting under the School Code that allows the school boards to create and adopt policies for their respective districts. Citing Georgia et al. v. Public.Resources.Org, INC., the Plaintiffs contend that they were acting as legislators, and are therefore not the “authors” of the works they produced acting in that position. The Plaintiffs also state that the PSBA was contracted by the Plaintiffs to recommend policies or language that the Plaintiffs adopted as public policy. As such, the policies are owned by the public and not under the copyright of either MASD, SSSD, or their hired consultant PSBA.

The Plaintiffs have asked that the court declare the PSBA has no claim to the policies or annotations of MASD or SSSD and that the C&D letters sent by the Defendant are unenforceable. The PSBA has yet to answer the complaint.