All right. Back on the record in the Simpson matter. The Defendant is again present before the court. The jury is not present. We have an extraordinary matter before the court, the record is already clear, this order issued at the request of the Defense, a subpoena duces tecum through the interstate compact among states to compel the production of certain audiotapes and transcriptions of those audiotapes that we have come to refer to as the, quote, unquote, Fuhrman tapes. Those tapes, the originals and the transcript and a transcript prepared by the District Attorney's office and a transcript, partial transcripts, that have been prepared by the Defense are in the possession of the court. The tapes in a redacted copy form were considered by this court with regard to the use and admissibility of those tapes as they pertain to the testimony of Miss McKinny. The unredacted tapes were listened to and the transcripts were read by another court as to another issue in Department 123, the honorable John Reid. So those matters have been completely and fully examined by the court for purposes of rulings in this case. The party which produced those documents, Laura McKinny, Laura hart McKinny, represented by counsel has--had at the time that these tapes and transcripts were produced in court asked for the protection of this court, asked for the assistance of this court in the form of a protective order so that these materials would not be disseminated beyond the confines of the real parties in interest, the Prosecution and the Defense and the court for the legitimate purposes that those items were originally sought. We have now, because of the overwhelming public interest in these matters, been requested by various parties, the Los Angeles city attorney's office representing I believe the Los Angeles Police Commission, and the American civil liberties union amongst other parties have requested that the court make these materials available to the public without any further restrictions. I'll hear first from counsel for Miss McKinny. And, counsel, I'll also allow you to conclude the argument.

Thank you, your Honor.

All right. Mr. Schwartz, good afternoon, sir. And I would like to conclude this part of the oral presentation by 3:30'ish.

Okay. Thank you, your Honor. Good afternoon. May it please the court, 10 years ago, Laura hart McKinny began a fact finding expedition for the purposes of gathering information to be used in a screenplay to be made into a motion picture and in a novel. She worked for 10 years on these projects, and she recently completed the screenplay and the novel is nearly complete. These end products represent the fruits of 10 year's worth of intense, physical and creative labor. And the reason why we're here today, your Honor, is to determine who should control the custody and the use of these materials. Is it going to be the exclusive and proper owner of these materials or is it going to be city entities or will it be a special interest group that has its own agenda? We're opposing all these motions, your Honor, for five reasons. The first ground for opposition is the fact that the moving parties don't have standing to seek the relief they have requested. The second basis for opposition is that the relief requested would violate my client's rights as protected under the copyright act of 1976.

The third basis for opposition is based on my client's privileges that are provided for in the California constitution article I, section 2; namely, the Shield Law. The fourth basis for opposition is that the relief requested would result in an unconstitutional taking in violation of my client's 5th Amendment rights, specifically with regard to the just compensation clause the United States Constitution made applicable to the States by the 14th Amendment. And, finally, the last basis for opposition is more of a factual argument than a legal argument, and that is to say that the interest to be served by the relief requested have already been served by the cooperation of my client as rendered previously. So that said, I'll now address our first ground for opposition, standing. According to Yancey versus American Savings and Loan Association, California law is in accordance with the federal law of standing and treating standing as a jurisdictional requirement. Valley Forge versus Americans United is a seminal case on standing, holds that:

"The document of standing requires a party seeking to invoke the court's authority to show that they have personally suffered an actual or threatened injury as the result of the conduct of the Defendant." Now, first of all, my client is not a Defendant in this action. She is a non-party witness who was brought here against her will by a subpoena, as the court noted previously. And she has not done--she has not engaged in any conduct that would ultimately threaten injury or actually cause injury to any of the moving parties, and, therefore, the moving parties are unable to show any basis for standing according to the valley forge authority. And with specific respect to the ACLU as a moving party, the Sierra Club case, another civil case, Sierra Club versus Morton, provides specific guidance. It says:

"Standing does not exist merely because a party claims to be acting as a representative of the public--of the public interest, nor will standing be established by way of an organizational interest in the problem." And yet that's exactly why the ACLU is here. They say that they're representing the public interest, but that's exactly the kind of abuse the Sierra Club has decided to protect against. And so they have two reasons why they shouldn't have standing. And I know the court has granted the ACLU the right to submit motions previously, but perhaps standing wasn't challenged in those cases, but we're challenging their standing to make this motion today. The second basis for opposition is copyright law. The moving parties have suggested that my client doesn't have a copyright interest in the audiotapes and the corresponding transcripts. And they proffer to this court the authority known as the State of Hemingway versus Random House, which is a New York state case, persuasive authority if it's even authority at all, which was decided in 1968.

Three days, the `76 copyright act.

Precisely. And so when they say there's no statutory basis for a copyright protection in an audiotape and there's only a common-law copyright interest, they're wrong. That authority is obsolete. Specifically, the copyright act of 1976 in section 102.A7 provides that sound recordings qualify for copyright protection, says:

"Works of authorship include ... Sound recordings." And in section 101 of the copyright act, it says that: "Sound recordings are defined as," quote, "Works that result from the fixation of a series of musical, spoken or other sounds regardless of the nature of the material objects such as discs, tapes or other phono records in which they are embodied." And so clearly, when my client affixed Mr. Fuhrman's vocal sounds into a tape recording, she acquired a copyright interest immediately in the recording. And they've also hinted that just because Mark Fuhrman has answered certain questions, his answers are not copyrightable because they came from him. That argument is misleading because although she may not have an interest in the words that were spoken, that means that anybody can go to Mark Fuhrman and say, "What did you say on the tapes," and then he could reiterate them. My client can't prevent them from doing that. But my client owns the recording, the sound that she recorded and the sound she affixed in that particular--I'm sorry. Am I going too fast for you--were affixed in that particular tangible medium of expression. Now, what does it mean to have a copyright? What kind of rights does a person have? There are three rights that are implicated by these motions, and they are provided for in section 106 of the copyright act of 1976. They are as follows:

"The owner of the copyright under this title has the exclusive rights to do and to authorize any of the following: "1, to reproduce the copyrighted work in copies or phono records; "2, to prepare derivative works based on the copyrighted work, and, "3, to distribute copies of or phono records of copyrighted work to the public by sale or other transfer of ownership or by rental, lease or lending." Now, the moving parties want this court to release copies of her work to the public. That would violate and usurp her ability to distribute these materials to the public, and if they make copies, the court would be assisting other people in committing copyright infringement, and if they were to make derivative works, that would be violating her exclusive right to make a derivative work. So that would ultimately result in three copyright infringements. Now, they've raised the issue that this would serve to be a fair use, and the adoption of fair use has been embodied in the copyright act of 1976, specifically in section 107. The reasoning behind it is that we allow certain infringements to occur if the public interest outweighs the interest in the monopolistical control that the owner has, but there's a specific test that we apply to determine whether or not a particular use is fair, and it was ably represented in the city's moving papers. There are four factors that the court considers to determine whether or not a use is fair. The first factor is the nature of the original work. The second factor is the nature of the contemplated use. The third factor is how much of the original work is being taken from the author. And the final factor is, what is the effect on the market for the original work.

All but one of these factors militate in favor of finding for my client's argument. The first factor, what is the nature of the work? This is a commercial enterprise. She made these tapes with hope--with the intent of exploiting them in the form of a motion picture and a novel. So clearly, we need to protect that interest. The second factor actually militates in favor of the moving--

Well, couldn't that also be--couldn't the tapes themselves though also be characterized as foundational research rather than the work itself?

I don't think so. I think what has happened is that there has been a sudden increase in value in that particular work. The way we represent the works to the court is that the original work is the tape recording and the screenplay and the novel are derivative works from the tape recordings. In fact, tape recordings have been registered with the United States copyright office. Those are works in and of themselves. The second factor of the fair use test, the nature of the contemplated use actually militates in favor of the moving parties and its notable purpose, and we concede that the notable purpose is to help the city conduct an investigation, and that's why we haven't helped the city to date by giving them access to the tapes as opposed to copying. But this one factor is outweighed by the other three. The third factor is the substantiality test. How much of this work do they seek to acquire? They want everything available. And when you take the entire work, it's prima facie unfair use. And when we look at the fourth factor, we know this is patently unfair because the fourth issue was the effect on the market for the original work. The effect on the market here, if it is disseminated to the public, is complete devaluation of the original work. Nobody is going to want to buy this stuff because it's already out there. Why buy the cow when you can get the milk for free? You're taking all the wallop away from this work. So when you consider all three factors--all four factors, everything must be found in favor of my client's argument. Now, counsel for the moving parties have proffered two authorities, case law saying this really is a fair use in light of Jartech versus Clancy, Grundberg versus Upjohn company, and those cases involve whether or not you can make a copy of a copyrighted work for use in a trial in a legal proceeding. And those authorities are sound because--and, in fact, that's what happened in this trial. The Defense has made several copies for their use and the Prosecution made several copies for their use so we can have administration of justice in this proceeding. But what the moving parties are trying to do is use my client's material for something unrelated to this trial. They want this disseminated to the public. They want this for use in an investigation of the police department. That's clearly outside the scope of these proceedings. In fact, this court has already ruled that 99.9 percent of my client's material are inadmissible for this trial. The involvement of my client's material for this trial is over. They're asking this court to do something extrajudicial that would be patently unfair. And Jartech and Grundberg can't be used to the extent--to the uses they contemplate. Therefore, what they're contemplating is unfair use. And that brings us to our third opposition. Their basis for the opposition is the Shield Law. And this court is well familiar with the law. It's been brought up several times in this case.

Article I, section 2 of the California constitution provides absolute immunity from contempt, which vests a right of nondisclosure of information acquired in the process of news gathering. And the Shield Law applies to unpublished information, even if that information was not obtained in confidence according to the New York Times versus Superior Court, 1990 case. Now, my client's materials were acquired by United States subpoena. And we raised the issue of the Shield Law in North Carolina unsuccessfully because Mr. Simpson enjoys a 6th Amendment right, which outweighs my client's right to protect the confidentiality for information, and that's because he's a criminal Defendant. And so we gave the court our materials. We conceded. And he used those materials to the best of his ability and the Prosecution used those materials, but we were also granted a protective order to make sure that the rest of these materials would not get out. And so to the extent that the protective order was obeyed, those materials are unpublished. These moving parties, if they went directly to my client and asked her to give them these materials, she could properly assert the Shield Law. But they're trying to circumvent that. They're trying to ride the coat tails of Mr. Simpson's 6th Amendment right, which they don't have because they're not criminal defendants. And so they're trying to escape the invocation of the Shield Law by my client by asking for these materials in this proceeding, and that would be improper. This is not the proper form for them to do that. They need to issue their own subpoenas, and we'll handle the matter then, we'll raise the Shield Law then. They cannot be permitted to inure the benefit of Mr. Simpson's 6th Amendment rights. That's the purpose that this court has control of my client's property, and it was already used. This is a different purpose now and they have to go to a different forum in order to get that material. The next basis for our opposition is eminent domain, your Honor. The 5th Amendment to the United States Constitution provides in pertinent part that:

"Private property shall not be taken for public use without just compensation. This protection known as the just compensation clause is made applicable to the States by the 14th Amendment to the United States Constitution according to Gideon versus Wainwright," another seminal case on the issue of unconstitutional takings. We contend that if this court is inclined to engage in this kind of copyright infringement, that it would be taking our client's property and it would be devaluating it and it would constitute an unconstitutional taking. "It is a well-established principle that an interest in copyright is a property right protected by the due process and just compensation clause of the United States Constitution,"

So it says Roth versus Pritikin, Loretto versus TelePrompTer and Pruneyard Shopping Center versus Robins. These are all 1980 federal cases. And additionally, California constitution article I, section 19 specifically provides how a court is supposed to conduct an eminent domain procedure. It says:

"Private property may be taken for a public use only when just compensation as ascertained by a jury has first been paid to or into the court for the owner." Now, this is not the proper form for an eminent domain. This is not the proper form to adjudicate a taking. We need a jury. We're not waiving a jury on that issue. We need a jury to determine whether or not there's a public use that's sound and we need a jury to help us determine what the value of my client's property is. And so to come in here and ask for a summary taking I think is outside the scope of this court's power and authority. And finally, the last ground for our opposition, your Honor, is that the interest to be served by the relief sought by the moving parties have already been served. For example, as far as the city is concerned, we immediately granted the city access, complete and continuous access to our client's materials. And, in fact, they took advantage of that offer. They came to our offices for six days and I think they spent approximately six hours for each of those six days listening to every word on the tapes, reading every word in the transcripts and taking copious notes therefrom. And, of course, these tapes, as the court well knows, do not contain scientific formulas or mathematical postulates. This is casual conversation. You can pretty much get the gist of everything from a first review. But if they need further review, they're more than welcome to come back and to engage in that investigation under our supervision. We just don't want to have to give out other copies. And so their purposes have already been served. And if they need to come back, they're more than welcome to come back. As far as the public is concerned, I think that the most startling portions of my client's work have already been published to the public. And if they need to second-guess your opinion, your Honor, as the ACLU suggests so that they can determine whether or not this court has rendered a good decision, then they can read your opinion. And you describe very ably in your opinion why you found these ways. They don't need the rest of my client's work to determine that. The rest of my client's work, which has not been published--and we're talking about 95 percent of it. Five percent of it was published because of the Defendant's proffer. But 95 percent, which contains story development, plot development, character development and actual dialogue which was lifted from the tapes and put into the screenplay and the novel is unpublished and it has nothing to do with the interest that they want to serve. And I think it's rather remarkable that an organization like the ACLU seeks to derogate an individual's property rights in favor of a city to get access to it. I think that's kind of hypocritical. The ACLU usually comes in quick assistance to somebody who's invoking the Shield Law or for somebody who's trying to protect their private rights against a governmental entity, but they're not doing it this time and I'm actually surprised as to why.

Strange bedfellows.

Okay. So at this point, I would conclude by asking this court to deny the motions, and I'll address other issues that may be raised by counsel when they're finished.

All right.

Thank you, your Honor.

Thank you, Mr. Schwartz. I'll hear from the city attorney. Good afternoon, sir.

Good afternoon. Thank you, your Honor. The Police Commission of the city of Los Angeles obviously has standing as the entity that is required by law to investigate complaints of police misconduct under 832.5 of the penal code. That is, a mandate placed on Police Commission to develop procedures to investigate allegations of police misconduct. The Christopher Commission that investigated the police department after the Rodney King incident recommended that this be the first priority of the police department to make sure that police misconduct was quickly rooted out, that any possible racism or prejudice or other police misconduct be investigated thoroughly. In addition, under counsel's argument as to whether or not we can show injury to show standing, obviously the reputation of the police department is critical here. It's at issue. The whole integrity of the police department depends on the public's understanding that we are going to do complete, thorough investigation of these charges. Not that we're going to do an 80 percent investigation or 90 percent investigation, but that a complete investigation is mandated and really required by the public to feel that they are really confident that the Police Commission is doing its job. Since obviously these tapes, portions of these tapes have been disseminated to the public, the public's outcry has increased. The pressure has increased upon the police department to demonstrate to the public that they're doing something about this. While it was very generous of counsel for Miss McKinny to allow us access to these materials, that process took some 18 hours, but we were not allowed to record the tapes, we were not allowed to bring a stenographer to record the tapes on transcript form. We were allowed to take notes, but obviously that is not the way the Police Commission or the police department would wish to do an investigation. After reviewing those tapes, we believe the situation has changed dramatically. We believe that allegations by Mr. Fuhrman on those tapes that have been heard by representatives of the Police Commission and the police department indicate there are instances at least that he brags about--we don't know if they're true yet or not--that would involve police misconduct and possible criminal acts. These need to be thoroughly investigated. We filed with the court the declaration of Commander J.I. Davis who indicated that he was the one who listened to all these tapes. But in order to complete his investigation, to do the kind of investigation he's going to need to do, he's going to need to go back to the tapes. As we go through that investigation and the investigators compare their notes, are they supposed to say, "Well, I'm not sure what we exactly heard here. It was a little inaudible. Let's all get in the car and drive over to Mr. Regwan's and Mr. Schwartz's office so we can hear those tapes again"? In addition, that offer by counsel, although generous, is revocable at any time by them. We believe that the court has the inherent power to modify the existing protective order because the court has issued that protective order. The court can decide the proper authorities, as the court has indicated before, that should be investigating these allegations should be given access to the materials. As to the copyright issues, I think the critical thing for the court and the court's interest in this is whether or not giving copies of the tapes and transcripts to the Police Commission would infringe on copyright interests of Miss McKinny. I do not concede that what these tapes and transcripts are copyrightable materials. I'm not sure that ordinary conversational speech is the kind of material that was envisioned to be protected by copyright. But even if the court would find that somehow this meets some definition of intellectual property, use by the Police Commission would not infringe on any of those property interests. We do not intend--what are the copyright interests? That they can reproduce, that they can distribute or that they can prepare something that would be derivative of the copyrighted material? The Police Commission, the police department have no intention of doing any of those, your Honor. We intend to investigate these allegations. We intend to try to do as Chief Williams pointed out, a biopsy of Detective Fuhrman's career in the police department to see whether or not incidents that he talks about may bear some relation to actual incidents that we are aware of, to go through his career and see who the parties were, see what incidents he was involved in. That's what we are going to be using the materials for. We're not intending to reproduce these materials, not intending to distribute these materials, not intending to prepare any derivative property that would be based on these materials. What we're trying to do is an investigation. And I think that the fair use doctrine comes into play here. Fair use is what this is about. As far as the Police Commission is concerned--and almost every one of the fair use cases, what you are talking about is a judicial--quasi judicial proceeding, and every one of those cases, your Honor, the courts have found it's fair use because we're not trying to interfere with the copyright protection, we're not trying to interfere with the author's right here, we're not trying to diminish the value of the property that she has. In fact, we have no intention of doing any of those things. The offer again from counsel that we could have a right to go over any time we want is not the way to do a police investigation. The other interesting thing that they brought out, it seems to me that the Shield Law has no application here, your Honor, because they've already given us access to the materials. There is no confidentiality anymore remaining in these materials. They have allowed the police department and the city access to listen to all the materials and to review the transcripts, although we have not obtained copies. It's a little late for them to raise the Shield Law since they've already let the shield down. Eminent domain, I don't understand quite what the eminent domain aspect of this is because we do not intend to take this property away from Miss McKinny in the sense we are not trying to deprive her of her commercial rights. We do not want to do anything that would interfere with her commercial rights here, and that is really what you are talking about with eminent domain; is the public trying to take something away from someone and never give it back, to take it away and use it for the public's own use in a way that would deprive the original owner of their use. That's not what we're intending to do at all in order to use these materials in a criminal investigation. Finally, your Honor, if we did not do a thorough investigation of these outrageous boasts, these outrageous claims, these outrageous statements by Detective Fuhrman that are on these tapes, the public would really question its confidence in the police department. It would fly in the face of really what the Police Commission is all about, why we have a Police Commission in the city of Los Angeles. The freeholders of Los Angeles in establishing this charter decided they wanted civilian oversight of the police department. The Police Commission, in order to do its job, needs to have unfettered access to these materials. Otherwise, the public's always going to say, did you get everything that was on these tapes? Did you investigate everything that was on these tapes? Is there a possibility that you may have missed some information that could have led to a criminal investigation or led to investigations that would have implicated other police officers? What are you trying to cover up? What have you missed? We need to reassure the public that we've done everything possible to get to the bottom of these outrageous statements. The public needs to be convinced that the police department is serious, that we want to eliminate racism in the department, we want to eliminate misconduct in the police department, we will not tolerate it. In order to do that, we need to do a thorough investigation. Obviously, the court is concerned about these property interests. But think of it as in any other situation. If the court came into possession of evidence of a crime or criminal misconduct, obviously the police department would have the right to come to the court and say, "We need that material, your Honor. We need the court to turn that material over to us so that we can do a proper investigation." The fact that this is intellectual property doesn't change what it is when you come right down to it. It is evidence of possible police misconduct and possible criminal activity. Under those circumstances, the Police Commission has not only the right, but the duty to get those materials and investigate these charges fully.

All right. Mr. Hahn, does the Police Commission have independent subpoena power?

Yes.

Have you attempted to subpoena these matters?

Yes.

All right.

We have served Miss McKinny with a subpoena from the Police Commission for these materials.

All right. When is that set for adjudication?

It's set for adjudication September 12th. That's--she's been ordered to appear before the Police Commission on September 12th. We've been informed by Miss McKinny's lawyers they intend to file a motion to squash.

All right. Thank you, counsel. Mr. Mirell.

Good afternoon, your Honor. Douglas Mirell, M-I-R-E-L-L, representing the ACLU foundation of southern California. With me in court today is, among others, the legal director of the ACLU foundation, Mark Rosenbaum. Your Honor, I'm mindful of the court's timing and I realize that this is a collateral matter and--

And it's been a long week.

I know it has. I appreciate that, your Honor, and I don't really intend at all to make it any longer than it absolutely has to be. But there are obviously several issues that I want to be sure that the court understands and that I have an opportunity to address. First, let me just say, what are the perimeters of what it is that we're seeking.

We're seeking access on behalf of the general public and the press--and by the way, I should note that Miss Sager is here as well and she may wish to address these issues briefly with the court. We are seeking access to the transcripts and tapes that were presented to the court and were considered by the court and which are the subject of the court's order of August 31st. We are also seeking access to all submissions that were related to the Defense's proffer as what--including the submissions by Miss McKinny's attorneys, if any, by the city attorney, by Mr. Mounger. All of that is by way of fulfilling what we think is a fundamental right, which is the right to ensure that the public has access to all aspects of what is a public trial. And these documents, like many of the documents we've talked to the court about before, including the transcripts of the jury dismissal hearings, these transcripts are every bit as much public records of a public trial and are public property in every bit as much a way as anything else that we've ever addressed with the court. I want to apologize first, your Honor, for not having any written response to the papers that were submitted at the very end of the day yesterday and that we did not see until after the close of business yesterday. To the extent that the court has any lingering concerns that we can address in writing, I'd be happy to do so, work on it over the weekend, get you something on Monday. But let me address first some of the very crucial important issues that are totally ignored in the opposition papers that arrived yesterday. First and foremost, the public record character of these transcripts and tapes. Miss McKinny's opposition I think is notable for its failure to address, much less contest the clear and unrefuted line of U.S. Supreme Court authorities that we have provided to this court that indisputably provide that public records are--that records of a trial are public records, that their sealing is presumptively unconstitutional and that their nondisclosure can only be justified where it is essential--and those words are within the court's opinion--essential to preserve higher values and is narrowly tailored to serve that interest. Nowhere in their briefing are those cases addressed. Nowhere is this issue directly confronted, and I think I know why. The answer is that they have no argument in refutation to the concept that evidence that is presented to the court, that is considered by the court in reaching adjudications that have already been made is evidence that is public information, and the public has a right to it just as they have a right to attend this trial, just as they have a right to participate in the process of determining whether or not what is going on here is an appropriate exercise of the court's power, is an appropriate fulfillment of the rights, duties, obligations of all parties. Next, second issue that's unaddressed, the transcripts and the tapes in this case provide vital context to the Defense's proffered excerpts and to the court's ultimate ruling on that proffer. And the reason why this central issue is unaddressed is also easy to understand. It's fatal to Miss McKinny's arguments. As the court will recall, we initially made our request for access to these transcripts and tapes by means of an Amicus brief filed before the August 31st ruling. But in that August 31st ruling, which followed many hours of argument and a two-day hiatus in trial testimony, this court made clear that its decision was tied inextricably to not only the submissions of counsel, but also to the overall text and context of the Fuhrman transcripts and in addition to the tenor and tone of the Fuhrman tapes. How do I know that? I know that from the opening paragraph of this court's order where the court said that it had, quote, listened to the redacted audiotapes, read and considered the multiple transcripts of the redacted audiotapes. Indeed, your Honor, in making the court's ruling, the order that was issued was so--made clear that the court had been so careful in scrutinizing and comparing the transcripts and tapes that it made the observation in line with the substantial inaccuracies comment that was made here in open court on the 29th. In footnote 4 of the court order, the court said, quote:

"The court's comparison of the tape recordings with the transcripts prepared by McKinny revealed significant errors and omissions despite Miss McKinny's testimony that her transcripts were verbatim in nature." So we know from that that the court did in fact not only read the transcripts, but actually listened and compared.

I understand, your Honor. And that's exactly why the public ought to be let in on what is going on and what it is that you had available to you when you issued your ruling. The reason why that's important is that any fair reading of the totality of this court's August 31st order, which was in fact very detailed, reflect a significant underlying focus upon the question of whether Mr. Fuhrman was speaking as himself or assuming the role of a character in a fictional work. In particular, one of the specifically articulated reasons for denying the Defense motion with respect to at least two of the incidents of alleged misconduct, which were ruled inadmissible, was--and this is a quote from at least one of them.

"This is clearly an instance of suggesting a scenario for the screenplay." That's found in incident no. 1. Similar language is found in the court's description of incident no. 2. Similar fictional concerns obviously arose from the court's comprehensive and textual scrutiny that were identified with respect to at least five other incidents, incident 1, 9, 14, 15 and 16. The fact, your Honor, of the preexisting disclosures and exposure of these tapes I think highlights what Miss McKinny's true goal is; and that is to make her attorneys into the gatekeepers of the public interest whose exercise of discretion will be unrevealable. We join with the comments made by the city attorney, Mr. Hahn. We believe that there is no reason why the kindness of strangers ought to be the test that determines whether or not the public or the Police Commission or anyone else has access to evidence which is actually before the court. Neither kindness nor sufferance are the test. The test is whether or not these are in fact public records that were considered by the court in the context of a public proceeding. Your Honor, let me address a couple of other issues briefly. And that is the following: I believe, your Honor, that it's the height of naiveté to believe that leakage, whether from Miss McKinny or anyone else or--that leakage will not continue unabated. And I think that what we can be assured of if this material is not publicly released is that all of this information will come out, but it will come out in selective leaks. It will come out in dribs and drabs and it will be pouring oil on the fires of this public controversy. And there's no reason for it, your Honor. There's no reason for it because we can put an end to this controversy now. By releasing this material publicly, what we will do is, we will accomplish two things. First, we will ensure that the public does understand what the basis of the court's ruling was.

Second, what we will do is, we will make sure that the public has access to this very important information. And why is that significant? It is significant, of course, in and of itself because these tapes, as the court knows, have become somewhat of a cause celebre in this city, and the impact of releasing this material and the impact on the public and the press is going to be magnified in our view if these tapes are not released at once and if these tapes instead are released selectively leap by leap. And we know what will happen because the court doesn't have access to the McKinny manuscript, the men against women manuscript. Yet, I read in this week's issue of Newsweek that Newsweek has it, and they discussed it. That was the supposed intellectual property that was truly the subject of protection. But in any event, your Honor, we know that to a moral certainty, that this information will come out sooner or later. And there's no reason why it shouldn't happen sooner because a third purpose that will be served is to ensure that the public has confidence in the very investigation that Mr. Hahn's office will be conducting and that we have every confidence they will conduct in a fair, full, complete and forthright manner.

But unless the public has access to the information that the Police Commission has access to with respect to these tapes, there will be lingering questions about the fairness, the fullness, the accuracy, the completeness of that investigation, and that shouldn't happen. There's no reason why that needs to occur. Your Honor, I don't know what the court's concerns are with respect to standing, but let me just say one thing. Standing has been an issue that we addressed at the very outset. I stood here on August 31st, 1994 to address then the issue before the court, which at that time was considering imposing a gag order upon the attorneys and imposing a sealing order upon the documents in this case. At that point, we brought to the court's attention the code of civil procedure 6426(A), which provides for taxpayer standing. And if this court has any concerns about a corporation having a taxpayer standing, although we clearly pay taxes within this county, I have a letter from representative Maxine Waters who sent a letter to the court on September 1st, a letter from her dated today, indicating that she has authorized the ACLU foundation to represent her interests as a taxpaying citizen of Los Angeles County in seeking access to these materials from the general public, and I can provide a copy of Miss Waters' authorization letter to the court and counsel. But beyond that, your Honor, 526(A), taxpayer standing is clear. We know what that's about. White versus Davis, a 1975 California Supreme Court case, says, quote: "No special showing of injury to the particular taxpayer,"

Closed quotes, need be made and that the primary purpose of the section is to, quote, "Enable a large body of the citizenry to challenge government action which would otherwise go unchallenged in the court because of the standing requirement," closed quotes. For that reason as well as for the fact that article I, section 29 of our California constitution provides that the People of this state have a right to a public trial in addition to the right that's possessed by the Defendant under section 15. That is a second reason, a second basis for bringing this action. We are enforcing a public right. And, your Honor, even the case that was cited by Miss McKinny's and--Miss McKinny's papers, the Dix versus Superior Court case, even though that case was in fact vacated by the California Supreme Court on May 31, 1990 and rendered unciteable, a violation of the rules of court and the business and professions code, even that case said that--well, I'm not going to talk about what that case said, your Honor, because that case is not authority. But when the Supreme Court addressed this issue, all that it said is, look, when it was confronted with a victim of an aggravated assault wanting to--seeking standing to challenge the trial court's decision to recall the Defendant's sentence under penal code 1170(D), the court said, look, private people have no right to step into the shoes of public Prosecutors. And that's Horn book law. Nobody's seeking to do that here. The sole responsibility of the public Prosecution is the sole responsibility of the public Prosecutor. The court's issuance though of the protective order that was proposed by Mr. Schwartz and Mr. Regwan is entirely collateral proceeding. And if there were a violation of it, we all know it would be a violation that would be punishable through civil contempt, not criminal contempt. Your Honor, with respect to the other issues that have been raised, let me say this. Let me just say this and then I will close.

With respect to copyright, there are two points I want to make, but two very important ones. Miss McKinny never asserts nor could she that an order rescinding the protective order that was entered or otherwise permitting the public and the press access to the Fuhrman tapes and transcripts could conceivably constitute any act of copyright infringement. If the court simply today lifted that protective order, it would have no--it would have done nothing under anyone's definition in terms of having committed any infringement of any copyright. But, your Honor, in addition to that overriding issue, which should be dispositive of any copyright concerns that this court has, in addition to that, the issue of whether or not these are appropriately works as to which Miss McKinny can claim a copyright is solved by reference to the copyright act itself. And indeed, the relevant section is cited in the McKinny opposition papers. They say that:

"Copyright subsists--" and this is the law--"In original works of authorship fixed in a tangible medium." That's 17 USC 101. But the key word, your Honor, is "Authorship." In this case, Miss McKinny is in no way the author for any copyright purposes of Mr. Fuhrman's answers to her questions. Now, Mr. Schwartz obviously recognizes this because in his papers, he says, quote: "Fuhrman's notorious comments were intentionally elicited by the skillful and creative questioning of McKinny," closed quote. Now, what that is an attempt to do is to argue that somehow, these answers are the creation of Miss McKinny. But that's wrong, your Honor. And it's wrong because in 1884, the United States Supreme Court defined authorship for copyright purposes. This is a definition which continues to subsists. The authorship provisions have never changed and authorship is a requirement of the constitution in order to obtain copyright protection. "Authorship" means in the words of Burrough Giles' lithographic, quote: "He to whom anything owes its origin, the originator, the maker." And here, the fact that Miss McKinny may have fixed--for copyright purposes, may have fixed Mr. Fuhrman's words in a tangible medium of expression does nothing to transmute her into an author of those statements. Indeed, the nimiety--is the leading treatise on copyright law--says:

"Important as fixation is, we have just seen that originality is the essence of authorship. Accordingly, the originator rather than the fixer should be deemed the author for the distinction between one poet who brandishes a quill or word processor and another who dictates to a stenographer cannot call for a different legal conclusion as to authorship." And that's what happened here. Miss McKinny may have an interest, a copyright interest. Ignoring the Hemingway issue for a moment, Miss McKinny may have an interest in her words and her questions. She doesn't have an interest in Mr. Fuhrman's answers and it's obviously the answers of Detective Fuhrman which are the most critical key component of this issue. Your Honor, I'm not going to address the Shield Law issue. The Shield Law was ably addressed by Mr. Hahn. I associate myself with his remarks. The Shield Law goes to disclosure. It doesn't go to use. The Shield Law issue was waived. The Shield Law issue was dealt with in North Carolina, disposed of. I'm not going to deal with it here. Local rule 719 compels this court to view protective orders like the one that was sought by Miss McKinny with intense scrutiny. They are disfavored by this court. They are rightly disfavored by this court. The court must have found or must find in order to preserve this that secrecy is in the public interest, that Miss McKinny has cognizable interests and that serious harm will result from public disclosure. Your Honor, we believe that on all three of those points, the answer is the converse. The eminent domain argument, your Honor, is a ludicrous argument I must confess. I honestly cannot believe that it was made with a straight face, but mischaracterizes disclosure as eminent domain. It is not. The government's exercise of power to transfer property from an owner to itself is what's involved in eminent domain. This isn't McKinny's intellectual property, and even if it were, the formal appropriation of property by transfer of a title to the government has never happened and I'm sure never will. This isn't even a regulatory taking, your Honor. This is--and the case that's cited, I'm amazed, the Prunard case is a case which, as the court may know, is a case in which the United States Supreme Court said that there was no taking when owners of private shopping centers are made to permit leafletters, picketers, pamphleters, petitioners to use their facilities in order to get their expressive message out. So, your Honor, on none of the points that have been made is there a viable argument here for keeping these materials secret, for keeping--for--and, in point of fact, for permitting counsel for Miss McKinny to decide selectively when the evidence that is rightly before this court will be disseminated to the public, and we would respectfully request the court for an order that does release these materials to the public and the press. And once again, your Honor, as always, I appreciate the court's indulgence.

All right. Thank you. Mr. Douglas, you had a brief comment you wanted to make.

If I may briefly, your Honor. Your Honor, with all due respect, I've been very heartened and appreciative of the comments of all counsel, of Mr. Schwartz on behalf of his client. Respectfully, however, we now take the position after hearing all the arguments that given the unprecedented public interest in these tapes as well as the importance in a full hearing of the larger community and to decide all issues which the tapes have raised, we believe, your Honor, that justice is best served through the release of these tapes. We've very mindful, of course, of the interests that Mr. Schwartz has suggested. We're also very mindful, however, of what we feel on balance is the overriding public interest, particularly in some of the issues that were raised by Mr. Hahn. I think that it is very important that there be the ability to fully analyze and consider some of the very disturbing comments and implications that were raised. I've had occasion to listen to all 14 hours of the tapes and transcripts. So I have some firsthand knowledge of that which was not included in the excerpts. It is in fact very disturbing. There are in fact implications that go beyond the four corners of this particular case and on balance, respectfully, we think that the interests are better served by the release of the tapes.

All right. Thank you, counsel. All right. I need to take a recess at this point for the court reporter. We'll stand in recess for 15.

Your Honor, if I may, after the court takes a recess, I would like to have an opportunity to address the court.

I think we've heard enough, counsel. Thank you.

Okay.