7th Circuit Tosses Limits on Water Analyst Report

CHICAGO (CN) - A nonprofit whose focus is water crises across the U.S. cannot prevent an analyst it once employed from publishing the details of a report on water demand during droughts, the Seventh Circuit ruled.

The Alliance for Water Efficiency is a Chicago-based nonprofit that "serves as a North American advocate for water efficient products and programs," according to its website.

It hired defendant James Fryer to analyze urban water usage and how municipal programs affect the elasticity of demand for water during droughts. However, it was dissatisfied with the results of the analysis and decided not to publish them.

The California Department of Water Resources, one of the Alliance's sponsors and an agency facing one of the nation's most serious water crises, felt differently, and sought to present the findings on its own.

This led to a settlement in which Fryer promised to remove the Alliance's name from the report and issue it solely under the Department's name, but the Alliance later sued for a more extensive agreement under which organizations that had participated via its committee would not be identified either.

A federal magistrate judge ultimately sided with the Alliance, but Fryer appealed and on Dec. 22, he won.

U.S. Circuit Judge Frank Easterbrook's pithy judgment noted that the Copyright Act, upon which the Alliance had based most of its case, was irrelevant:

"According to the Alliance, the report is a 'work made for hire.' Yet Fryer is not employed by the Alliance. The Alliance did not allege that Fryer had agreed in writing that his report would be a work for hire."

"Federal question jurisdiction therefore is unavailable," he said.

Since the Alliance is incorporated in Illinois and Fryer is a citizen of California, diversity jurisdiction was available and left Easterbrook with a straightforward question of interpreting the settlement.

Easterbrook acknowledged the magistrate's finding that "unless Fryer is forbidden to mention any person or entity that participated in the project advisory committee, some readers may associate the report with the Alliance."

However, he wrote, "[t]hat's the nature of a compromise. Neither side gets everything it wants."

The court ultimately found that the parties' original settlement should be enforced instead of modified.

"The district court's injunction is vacated because it contains terms on which the parties have not agreed," Easterbrook concluded.

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