I obtained the recording of the 2004-07-12 hearing in SCO v. Autozone from the clerk of the District of Nevada on 2004-07-13.

The clerk did not express to me any restriction on reproducing the recording. You can see the form the district uses for these requests here. The only certification requested of me on the form was that "By signing below, I certify that I will pay all charges (deposit plus additional) upon completion of the order".

Pamela Jones, of groklaw.net, expressed two concerns about the recordings here, and discouraged anyone from disseminating them.

(Please note: Like Jones, I am not a member of any bar, nor do I purport to be anyone's attorney at law. Nothing I state should be relied upon as legal counsel.)

Jones's first concern, which only applies to the mp3 file, was that creating it from the wav files using the ForTheRecord.com (FTR) software and then distributing the mp3 violated the FTR License Agreement. Reading the agreement, I do not see how this could be so, and last I heard from Jones, she still had not even read the agreement.

Jones's second concern, expressed in email, was that the recording service may have a copyright interest in the recording. In Lipman v Commonwealth of Massachusetts, 475 F.2d 565 (1st Cir. 1973), the first circuit ruled that a court reporter has no copyright interest in a transcript [1]:

since a transcript is a verbatim recording ... there can be no originality in the reporter's product

An electronic audio recording is even more verbatim than a transcript. How can there be any originality in the recording operator's product?

Jones's response to this was that a first circuit ruling is not binding on a Nevada court, which is in a different circuit. That's true, but she could present no conflicting ruling that would be binding in any circuit. Nimmer on Copyright also appears to rely on the Lipman case to settle this issue. (I don't have links to these online, but see the citations and snippets from Nimmer and Lipman on pages 12 and 13 of this advisory opinion.)

I heard from someone else hosting the files that Jones claimed to have received conflicting information from court employees, and that at least one such employee said that the court claimed a copyright in the recording. Jones did not respond to my request that she confirm this information to me directly.

To settle the uncertainty, I wrote to the clerk, Lance S. Wilson, on 2004-07-16 (pdf txt) stating that "I have made the recording freely available on the internet" and requesting that he "Please let me know if your office asserts that I am infringing its copyright, or asserts that I must desist for any other reason". He responded on 2004-07-26 (pdf), writing "please be advised that this is permissible. You are not infringing on any copyright regulations."

[1]. The transcripts at issue in the Lipman case were those that Sidney Lipman had made of the inquest into the drowning of Mary Jo Kopechne and the involvement of Senator Edward "Ted" Kennedy, "who had been driving the car in which Kopechne met her death". The name of the island off which this occurred will be on the quiz.

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