IP Law Daily, COPYRIGHT NEWS: Does a membership school board association own the policies that it drafts for its members?, (Oct 7, 2024)

By Matthew Hersh, J.D.

A new lawsuit contends that the private association cannot own those policies as a matter of law.

A non-profit school board association was not entitled to ownership over the school policies that it drafted for its members because those policies, once enacted by the districts, become “the property of the citizens of the districts” and therefore could not be owned nor copyrighted by either the districts or their ostensibly hired consultants, a new federal lawsuit contends. The lawsuit, one of several recent entanglements between school board associations and their member districts, is only the latest of many to test the boundaries of a controversial 2020 Supreme Court decision about ownership of legislative materials (Mars Area School District v. Pennsylvania School Boards Association, No. 2:24-cv-01396 (W.D. Pa. filed Oct. 3, 2024)).

Each of the parties to the dispute plays a different role in the Pennsylvania educational system. The Pennsylvania School Board Association is a private, nonprofit association that, according its website, provides member school boards with “services, support and counsel as they lead their districts, navigate relationships and promote public education across Pennsylvania.” The Mars Area School District and the South Side School District are the local school districts for two cities in the greater Pittsburgh area, Mars and Hookstown.

The dispute began when the two school districts terminated their membership with the school board association during the past summer. The association responded by sending each district a demand letter in early September. The letters advised the districts that they no longer had access to “a library of materials which are owned and curated exclusively” by the association. At the core of those materials, the letters made clear, are the association’s “policy guides”—documents containing templates with recommended policy language for school districts to use and adapt.

The letters accused each school district of infringing upon those policy guides by continuing to make use of policies that were derived from the school board association’s materials. For example, the letter to the Mars school district cited its continued use of associated-drafted policies on guidance policies and student/teacher relationships, while the letter to the South Side district accused it of continuing to use various sexual harassment policies. “These are just a few examples,” the letters noted, but a cursory review of other policies suggested that “many, if not all” were either copied or derived from the association’s materials. This constituted copyright infringement, the letters contended. “To put it simply,” the letters said, “once a district terminates its agreement with PSBA, that district may no longer use the PSBA Materials and it must, among other things, develop its own policies.”

The new lawsuit responds to these letters with a demand of its own. The concisely drawn complaint is centered about Georgia v. Pub..Resource.Org, Inc., 590 U.S. 255 (2020). In that case, a deeply split Supreme Court found that the State of Georgia could not claim copyright protection for a collection of explanatory annotations to Georgia’s official code that was created by a publicly funded commission. (IP Law Daily covered the opinion here.) That decision controlled here, the school district contended. The school board association was “contracted by the [districts] to assist in the formulation of policies,” the complaint asserts, “and, as such, was merely the entity recommending legislative language or policies which thereafter required the [districts] to legislatively adopt such policies or variations thereof.” Those legislatively adopted policies, the complaint asserts, “are the property of the citizens of the districts and are not owned by nor may they be copyrighted by either the districts or the districts’ hired consultant, PSBA.”

The lawsuit demands a declaration that the school board association has no legal claim to ownership of the policies of the school district nor to any annotations to those policies. The lawsuit also asks the court to declare as unenforceable a contract between the districts and the school board association that also purports to bar the districts from using the materials.

The lawsuit is not the only dispute involving school board associations and their former members to make it to the courts. Two weeks ago, IP Law Daily covered a lawsuit asserting that the former CEO of the Arizona School Boards Association made off with the association’s policy manual and used it to start a competing school board association.

The Case is No. 2:24-cv-01396.

Attorneys: Jordan P. Shuber (Dillon McCandless King Coulter & Graham LLP) for Mars Area School District.

Companies: Mars Area School District; The Pennsylvania School Boards Association

News: Copyright PennsylvaniaNews GCNNews