I created a masterpiece about a week ago. On the left, a very horrifying creature that took about three minutes to create and was instantly copyrighted upon creation. If you took my creation and slapped it on a mug and started selling it, I could probably successfully sue you. On the right, a file snapshot of years worth of transcript work, which could be freely copied by anyone any time, at least ostensibly, as any court that decides this issue seems to decide that transcripts are not expressive work protected under copyright. Sam Glover also wrote about this years ago, but seems to have purged it from his blog. Some courts, like the one in Urban Pacific Equities et al v The Superior Court of Los Angeles County (59 Cal. App. 4th 688, 69 Cal. Rptr. 2d 635), have taken the step of ruling that the transcript does not have to be turned over under a business record subpoena because it is a product of business and not a business record, but this does not necessarily prevent it from being copied if counsel obtains it another way.
Here in New York, we do have guaranteed payment of an original via our General Business Law 399-cc (Transcripts and stenographic services). In that way, I feel the state and legislature has already partially acknowledged the hard work that we do. But it’s no secret that court reporter businesses, for whatever reason, have chosen to make originals cheap, and make their businesses more or less dependent on these copy sales. It’s often reported in social media circles that attorneys at a deposition will openly and in front of the stenographic reporter offer to copy and give the transcript to counsel that would otherwise have to order the transcript from the reporter. Why not? As best anyone can tell, it’s legal! There’s also a darker side to this. If you do not have a clear agreement with your agency stating otherwise, they can probably also legally copy your work and not tell you about it. Again, why not? It’s legal!
The question arises, what do we do about this? Many ideas have been floated over the years. Some say we should change our model to reflect the lost copy sales and consider charging in a different way, like hourly, per diem, or a higher original. Personally, I believe it would not be unfair to create a body of law protecting stenographers’ rights to their work. Transcribers would probably be equally in favor, and it would certainly slow the rate of copying if it were explicitly not legal.
Many ideas have been floated in this regard, including putting it under theft of services. I don’t think anyone supports throwing attorneys in jail over this. That’s unreasonable to me. But I do think it’s fair to create a civil penalty for the copying of transcribed work. Virtually everything else is protected via patents, copyright, or intellectual property laws, and it seems weirdly unfair to have a class of people whose work is wholly unprotected.
I would propose language to the effect of “No person or business entity shall copy, reproduce, publish, or dispose of to another a copy of the transcript of any matter transcribed or stenographically reported. A person or business entity that violates this must pay a copy sale to the stenographer or transcriber that created the original transcript. Such copy sale price shall not exceed the mean average of the stenographer or transcriber’s copy sales for the twelve months preceding the copying, reproduction, publishing, or disposal.”
Now, if we were to propose such law, there’s a strong possibility we would have to make some concessions. Let’s be fair, many of these matters are matters of public domain and importance. I would propose a few important carve outs, such as, “nothing in this law shall be construed to abridge the right of any person to critique, cite, discuss, parody, or utilize a transcript’s content in any expressive matter.” This punches a bit of a hole in the law, but look at fair use in copyright law, and you’ll get what I’m trying to do. Also, “nothing in this law shall prohibit any person from preparing or having prepared by another their own transcript of the same proceeding or matter.”
There are some bigger issues we’d have to deal with. Would this law exclusively cover private transcribers / stenographers and not public employees? That’s a fantastic question. As a stenographer, I’m sure everyone knows where I stand, but as someone who reads a good amount of law, I understand that government work simply works out that way sometimes. I think if we’re serious about a New York City, New York State, or even someday federal law on this, it’s entirely doable. I think the important thing is prohibiting copying while allowing “fair use” type cases that don’t prohibit freedom of speech and expression. Notably, we could always go the way of this proposed Florida rule, which states plainly, “subdivision (g) requires a party to obtain a copy of the deposition from the court reporter unless the court orders otherwise…”
As always, discuss away or email me! It’s always fascinating to see what others have researched. Hopefully, if ever it becomes a serious discussion by our lawmakers, they’ll also get a chance to consult with authorities in our field like NYSCRA, NCRA, or even ASSCR.