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Court of appeals: PDFs are not ‘photocopies’

By: dmc-admin//November 19, 2007//

Court of appeals: PDFs are not ‘photocopies’

By: dmc-admin//November 19, 2007//

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A prevailing party cannot recover his costs for producing electronic images as “photocopies,” the Wisconsin Court of Appeals held on Nov. 14.

After Troy Beebe was injured in an automobile accident, two insurers found themselves in litigation over which was responsible for his medical bills.

Ultimately, summary judgment was granted in favor of Zurich American Insurance Company (Zurich American), and against Wisconsin Physicians Services Insurance Corporation (Wisconsin Physicians).

After Milwaukee County Circuit Court Judge Richard J. Sankovitz directed counsel for Zurich to submit a proposed order for judgment, Zurich included in its request for costs pursuant to sec. 814.04(2), $248.50 for “Imaging: PDF Files” as a photocopying expense.

The circuit court held that Zurich could not recover the costs, reasoning, “This is clearly a circumstance where the law has not kept pace with technology. By use of the term ‘photocopying,’ the Legislature seems to have intended that prevailing parties recover the costs of reproducing documents. However, the term of art chosen by the Legislature, ‘photocopying,’ is not really up to the task. … [N]ot all ‘copies’ get reproduced on paper.

Indeed, in the current era both bench and bar are striving to be ‘paperless.’ Some law firms and court systems are ahead of others, and the elite tend to reproduce documents in electronic form rather than on paper.”

The court concluded that “photocopy” could not be interpreted to cover copies of documents reproduced in electronic media rather than on paper for two reasons: precedent that sec. 814.04(2) must be narrowly construed; and the ordinary meaning of the term “photocopying” does not include “digital electronic reproduction contained on electronic media.”

Both insurers appealed, but the court of appeals affirmed in a divided opinion written by Judge Ted E. Wedemeyer and joined by Judge Patricia Curley. Judge Ralph Adam Fine dissented.

The majority adopted Judge Sankovitz’ analysis as its own, adding, “As the statute currently reads, ‘photocopying’ must be narrowly construed to include only hard copy photocopies, rather than electronic imaging. Although both serve essentially the same ultimate purpose, they are not physically the same. Thus, unless the legislature revises the statute to add electronic reproduction/imaging to the statute as an item of cost, imaging costs do not fall within the costs statutes.”

Judge Fine dissented, reasoning that, because both traditional photocopying and creating PDF files include photographing a document and then copying it, the statute includes the production of PDF files as “photocopying.”

Fine explained, “Zurich American made the PDF copies for which it seeks costs by scanning paper documents. Rather than transmitting the resulting light-generated electronic impulses into a print head, Zurich American’s device transmitted the impulses to a CD. In short, Zurich Ameri-can took a ‘photo’ of the documents (using its scanner) and then copied them to a CD; that is a ‘photocopy’ no matter how ‘narrow’ the word is read.”

Costs

Section 814.14(2) may have the distinction of becoming obsolete quicker than any statute in state history. Ironically, the statute was just amended by the Legislature in 2004, for the sole purpose of keeping up with technology.

Included in the definition of disbursements for which a prevailing party can recover are, in relevant part: “amounts actually paid out for certified and other copies of papers and records in any public office; postage, photocopying, telephoning, electronic communications, facsimile transmissions, and express or overnight delivery.”

The words added in the 2004 legislation were “and other”; “photocopying”; “electronic communications”; “facsimile transmissions”; and “overnight” delivery.

The only word so obsolete in 2004 that it was eliminated in the amendment — “telegraphing.”

Looking at the word in light of that history, the dissent appears to have the stronger argument, as to the definition of “photocopy.”

In a footnote in his dissent, Fine cited The Online Etymology Dictionary for the origin of the word “photocopy” as follows:

“photocopy (v.): 1924 in the sense of ‘make a photographic reproduction,’ from photo- ‘light’ + copy (q.v.). The usual modern meaning arose 1942 with the advent of xerography. The noun is recorded from 1934. Photostat (1911) was a type of copying machine (trademark Commercial Camera Company, Providence, R.I.) whose name became a generic noun and verb (1914) for ‘photocopy.’” (http://www.etymonline.com/ index.php?term= photocopy)

However, as noted, the word was added to the statute in 2004; thus, the etymology of the world is not as important as how the word was interpreted in 2004.

Wikipedia, another online source, provides even stronger support for the dissent than the etymology of the word.

The entry for “photocopier” notes, “In recent years, all new photocopiers have adopted digital technology, replacing the older analog technology. With digital copying, the copier effectively consists of an integrated scanner and laser printer. This design has several advantages, such as automatic image quality enhancement and the ability to ‘build jobs’ or scan page images independently of the process of printing them. Some digital copiers can function as high-speed scanners; such models typically have the ability to send documents via email or make them available on a local area network.” (http://en.wikipedia.org/wiki/Photocopier)

Admittedly, the interpretation of photocopier to include digital technology has not been universal. An online glossary of technical terms observes, “For the purposes of this Glossary, the term photocopier is restricted to devices that use analog technologies, such as the use of light lens technology. Digital technologies are incorporated separately (emphases in original).” (http://www.clir.org/pubs/reports/lynn/term3-2.html)

However, even if “photocopy” is not universally understood to include digital images, clearly, by 2004, when the statute was amended to include the word “photocopy,” that word could include digitally-produced PDF files, such as the ones at issue in the case at bar.

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