Do Court Reporters own the Transcripts?
Our Founding Fathers intended the general public to be involved
in the Criminal Justice System. They established trial by jury and public
trials. In this age of national media, the general public is captivated by more
than just what goes on at their local courthouse.
Those of you who followed the Scott Peterson trial know that Judge Delucchi refused to have cameras in the courtroom. You also know what a pain it was to get copies of the transcripts. And, if you did participate in getting them, you also know how much you weren't told by the Media, or how much you were told that just wasn't so.
Why are transcripts of trials so hard to get? Because all of the States have privileged the court reporters with their ownership, to broker and sell. Court Reporters for high profile cases stand to make a lot of money on the side from the sale of transcripts. In fact, purchasing the entire set of transcripts for the Peterson proved to be so burdensome that the Media pooled their resources and hired another court reporter to take minutes in the over-flow media room. The entire set of transcripts for the Peterson case, from June 1, 2004 through March 16, 2005 added up to $14,864.00 (PDF). That didn't include jury selection, pre-trial evidentiary hearings, the preliminary hearings, or a multitude of hearings.
That is not the way it is supposed to be. Testimony is public information, and should be readily available to the public who are interested in the trial but are not able to personally attend.
In an October 22, 2002 Memorandum, the Administrative Offices of the United States Courts clarified ownership issues for court transcripts:
Transcripts of court proceedings are not original works of authorship subject to the protection of the Copyright Act (17 U.S.C. 101). Even if the transcript were a proper subject of the Act, official court reporters would not be able to seek a copyright because their transcripts are prepared as part of their official duties and thus come within the "work of the United States Government" exception. . . . Therefore, certified transcripts filed with the clerk of court may not contain statements or seals which purport to restrict the distribution or copying of the transcript by the clerk's office or by the public. Because transcripts filed with the clerk are public records, they may be used, reproduced and provided to attorneys, parties, and the general public without additional compensation to the court reporter, contractor, or transcriber.
Since Court Reporters are mandated to file their transcripts
with the Clerk, then it is without question that transcripts at any stage of the
process are public records, and not the property of the Court Reporter.
If Court Reporters do not own their work product, the transcripts, why are they able to sell them? More importantly, why do they think they control access and distribution?
The answer is simple. States have passed laws giving court reporters the right to sell the transcripts they produce.
I have not looked into all states, but I have researched the justification California uses for allowing court reporters to sell their product, even though their salaries are paid out of the public coffers and court recordings are public records.
This justification is explained in Bill Number AB 582, introduced on February 21, 2007 and amended on April 10, 2007.
SECTION 1. The Legislature finds and declares all of the following:
(a) Official court reporters and court reporters pro tempore employed by the courts are currently paid under a dual compensation structure in which the base salary of the court reporter is supplemented by income from preparing required transcripts and providing other required transcription services.
(b) The dual compensation structure protects the state from bearing the full cost of transcript preparation and other transcription services and avoids the resulting consequences of overtime liability related to these services.
(d) In order to ensure full and fair compensation of official court reporters and court reporters pro tempore employed by the court, and in order to attract and retain official court reporters and court reporters pro tempore employed by the courts that have sufficient skills and competence to serve the needs of the justice system, it is imperative that the system of dual compensation provide sufficient payment for transcription services.
Obviously, charging for the transcripts is intended to generate
income for the court reporters, not just cover their costs.
Two questions immediately come up. First, just how much do court reporters make for base salary? Second, how much income can they legally generate from the sale of transcripts?
To answer the first question, let's look at some published recruitments for Court Reporters in 2 counties in California which had recent high profile cases: San Mateo and Contra Costa.
A December 2005 recruiting ad for Superior Court, San Mateo County, posted a salary of $5,760 - $7,200 monthly. That equates to an annual salary range of $69,120-$86,400. Source
For Contra Costa County, a 2006 recruiting ad posted the salary range for Superior Court court reporters at $65,754-$82,970. Source
These positions are county positions, so they come with full benefits.
To answer the second question, we go back to California Code. Sections 69941-69958 govern the production and sale of transcripts.
69950. (a) The fee for transcription for original ribbon or printed copy is eighty-five cents ($0.85) for each 100 words, and for each copy purchased at the same time by the court, party, or other person purchasing the original, fifteen cents ($0.15) for each 100 words.
(b) The fee for a first copy to any court, party, or other person who does not simultaneously purchase the original shall be twenty cents ($0.20) for each 100 words, and for each additional copy, purchased at the same time, fifteen cents ($0.15) for each 100 words.
As for controlling distribution and access, yes, the State has given them that power, too.
69954. (d) Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person. Source
The terrible irony is that the sale of transcripts is intended
to save the State money. The result is quite the opposite, because it is the
Courts that have to bear much of the expense. In an analysis of the sought for
30 cent per 100 word increase in the cost of the transcripts, "the Trial Courts'
Consolidated Legislation Committee (TCCLC) comments that 'by increasing the rate
for original reporter transcripts by $0.30 for each 100 words, this bill would
cost over $3.1 million in fees for transcripts that the courts are required to
purchase from their own court reporters'."
"The Judicial Council also notes that current law requires the courts in criminal cases to obtain an original certified transcript of the proceedings for the court, and to provide copies to the parties, the cost of which is borne by the court. The Judicial Council therefore notes that the changes to the fee schedule . . . 'represent an increase in transcription costs of 17.4 percent at a statewide cost to the courts of as much as $5 to $7.5 million annually'." Source
Folks, that's just the cost of the proposed 30 cent fee increase. Multiply that by 2.83 to get the annual cost imposed on the Courts by the 85 cent per 100 word fee -- $14 to $21 million annually.
I can't think of any way to say how ridiculous this is in language fit for a public website.