Public notices belong to the public

Public notices: they’re paid for by taxpayer funds, created by public employees, intended for wide public distribution, but publication is dictated by a monopolistic government subsidy for newspapers.

It’s a law I and every other independent online publisher in New York State would like to change.

When I last wrote about this issue, a guy who has created a national public notices Web site contacted me and told me he was already compiling all of the public notices available online for Genesee County. For the simple price of sending him over our logo, he would provide a link where visitors to The Batavian could go and view public notices in a user-friendly fashion.

He wants to work with independent publishers to help prove online-only publications are just as capable of handling public notices as print publications, so he was offering the service for free.

The Batavia Daily News, under the current law, is the carrier of most paid public notices in Genesee County.

Since the notices originate not from the Daily, but from public agencies, it was our belief the notices are public property and not proprietary to the Daily. Besides, the only action The Batavian was taking was providing a link to a third-party Web site for the benefit of readers.

Now, months after we provided the link, the parent corporation of the Batavia Daily News, has decided to take a different view.

A few days ago, I received a “cease and desist” email from John B. Johnson, an executive with the chain of newspapers that owns the Daily.

The note was cordial, but also asserted legal authority to require us to stop posting public notices that originated from the Daily.

The note accused The Batavian of “copying” notices from thedailynewsonline.com, which was a factually untrue statement. As I noted in a reply to Johnson, the service was provided by a third party for which The Batavian has no contractual relationship and no monetary interest.

The assertion that The Batavian was violating the Daily’s copyright of notices also flies in the face of case law that substantiates the idea that a newspaper cannot claim copyright on material that it did not create. Since public employees create public notices, the notices are public property.

And besides, since no advertising appeared on the third-party’s public notice page, and since print publication of public notices is an income stream protected – a monopoly subsidy -- for newspapers courtesy of the State Legislature, the Johnson Newspaper chain cannot establish an important element of any assertion of copyright violation: financial loss as a result of the use of the material.

All that said, the Johnsons can afford corporate lawyers and The Batavian, still a small, family owned start-up, cannot. When you factor in that there is no monetary benefit to The Batavian for providing the free public service of increasing access to public notices, the risk-reward equation for challenging the newspaper chain’s claims falls well short on the reward side.

There’s just no point in fighting the corporation’s claims. 

But we want to continue to provide the service.

The owners of the third party Web site, at no charge to The Batavian, have graciously agreed to start accepting public notices directly from town, village and city clerks along with the agents of every other public entity in Genesee County that create public notices.

Such agencies can now email those notices to (notices at the batavian dot com) (reformat that address into a proper email address, of course).

I’ve already been in touch with about a half dozen town clerks and all cheerfully agreed to start sending their notices directly to this email address.

While the service is free to the public agencies and won’t cost taxpayers a dime, it is no substitute – under current law – for an agency’s legal requirements to publish public notices in a newspaper that has been designated by state law to publish such notices.

While we wish our friends at Johnson Newspapers well in their effort to protect a business model that is being disrupted from a variety of competitive forces, we believe public notices should not be a State Legislature-sanctioned monopoly subsidy for print publications.

In this day and age, public notices should be widely available to the public, and publications other than strictly print should be able to compete for the business of providing verified, legal publication. We will continue to encourage lawmakers to change the law.