June 2, 2010
Are Court Filings Copyrightable?
A lawsuit in Canada is asking the novel question of whether legal filings are protected by copyright. The proposed class action is filed on behalf of a Canadian lawyer against Thomson Reuters for violating the Canadian Copyright Act by including briefs and other records in that company's Litigator service which is comparable in some respects to Westlaw. Canada's copyright law differs in some respects from that of the United States. Canada recognizes an author's moral rights in a work. Aside from the standard unauthorized copying of a work, the claim also stem from a violation of the moral rights. A complete description of the issues and claims is available from the lawsuit's web site. I guess it's fashionable these days for lawsuits to have their own web presence. More on that in a bit.
It was last July that U.S. attorney Edmond M. Connor was aghast to learn that the Supreme Court of California was supplying briefs and records to Lexis and Westlaw for sale to other attorneys. He stated via letter his concern to the Court that other attorneys would be buying his work product and using it without fair compensation. He suggested several rule changes to California court rules that would modify the practice. Attorneys should designate which filings were licensed for download and could make the determination whether royalties should go to the attorney or a designated pro bono purpose. From the letter:
Based on the results of Mr. Hedenkamp's legal research, I sent letters to Lexis and Westlaw, stating my belief that their actions constituted copyright infringement, and asking for their views on the subject. While Lexis and Westlaw both claimed that their actions were not unlawful, neither was able to cite a single statute or case to support that position.
Without having to decide whether Westlaw and Lexis are engaging in copyright infringement in copying and selling appellate briefs, the Supreme Court should change its practice of providing these commercial vendors with free copies of the briefs that unsuspecting attorneys around the state a reserving on the Supreme Court pursuant to Rule 8.212, believing that these copies will be used for court-related purposes, rather than to generate corporate profits. In fairness to attorneys who dutifully comply with Rule 8.212, the undisclosed practice of routing briefs to Westlaw and Lexis can and should be halted unless and until a fair contract is worked out with them as proposed above.
So far, the Supreme Court of California has not acted on Attorney Connor's letter. Do I owe him any money for quoting part of it above?
The status of attorney generated content that is filed in court is unsettled in the United States. U.K. law, for example, specifically exempts documents filed in court from claims of copyright. U.S. law extends to literary works but excludes those which "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." (Sec. 102) Do these exclusions cover legal filings? The section on government works specifically excludes government works from copyright claims, but includes this provision (Sec. 105):
...[B]ut the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
Could "otherwise" include submitting a document to a court and thus transforming it into a part of the public record?
The practical steps for anyone seeking a court filing was typically to visit the clerk of the court office, wade through the file (or worse, microform) and pay an exorbitant fee to duplicate the item. To my recollection, attorneys were not compensated for this. Then came things like the Internet and PACER, where for a "slight" fee, anyone with an account can pay for documents filed in the various federal courts. Though PACER actually runs in the black, none of that profit is shared with the attorneys who generate those documents. Of course, the federal courts and the clerk's office are not profit centers despite the cash they generate for attorney product. Court rules covering issues in discovery routinely protect work product such as the internal memoranda that may describe relations with a client. Filed, "public," documents, however, do not have similar protection. Work product, however, is usually not licensed for sale otherwise.
The nub of this is commercial exploitation by Westlaw and Lexis. We in the academic world don't have much of a feeling as to whether attorneys copy parts of briefs from other but similar litigation and incorporate them in their own filings. Courts don't usually ask if counsel has plagiarized their filing, let alone licensed it from someone. Perhaps someone in the commercial litigation part of the library profession can comment on this.
Making briefs available would seem an unlikely selling point for Westlaw and Lexis given the vast amount of information their databases contain otherwise. But even if this were the case, would there be a distinction based on the source? How many actual briefs and records are available for free on the Internet? Many of them are put there by attorneys at their own web sites for download. Moreover, many of these are paid for by the client. Does this make them works for hire with copyright extending to the client rather than the attorney? For the record, Attorney Connor complained that the brief in his situation was prepared pro bono for an indigent client, so there are even more exceptions to characterizing the creation and status of these documents.
I think the idea of a suit such as this is silly. At the same time, I wish one would be brought in the United States simply to put the issue at rest. [MG]
I agree with the previous comments -- the solution is to make it all available for free. Whether or not you could make a viable copyright claim should be secondary to the question of whether or not such an approach furthers the purposes of the Copyright Clause and/or harms justice (due process or otherwise). The Copyright Clause is intended to incentivize creators to be more productive and to generate better/more-popular works. In the case of briefs, a competitive incentive already exists. Counsel wants to present the best argument possible for the sake of winning. However, by preventing copying you would be a) standing in the way of dissemination of valuable inputs into the process, b) potentially blocking counsel's ability to make certain arguments or use certain phrases, and c) hampering the ability of the general public to know "the law".
Posted by: steve | Jun 3, 2010 6:58:34 AM
I find it ridiculous to propose that the California Supreme Court take down briefs until a "licensing" scheme is worked out. If you don't like Westlaw/LEXIS making "corporate profits" off of them, then it would seem to me the real answer is to set up a giant free repository of such briefs so that no one can charge for what another is providing for free.
Do you really think it would be a good policy to encourage lawyers to start suing one another for copyright infringement when they borrow a paragraph from someone else's brief? Many parts of briefs have become boilerplate and copyright's merger doctrine or scenes a faire could provide defenses there, but we shouldn't even get to that stage of things. The better policy is that as public records, they are in the public domain and uncopyrightable.
I think granting copyright in briefs posing serious constitutional due process problems. I'm charged with knowledge of the law. The court's opinions are law. I often cannot fully understand the court's opinions without reference to the underlying documents in the case. Therefore, I believe undue restrictions on public access to such documents are constitutionally impermissible.
Posted by: Brian | Jun 2, 2010 8:02:19 PM
Can I suggest another solution?
The California appellate courts could make these same briefs available for free on their own websites. (If vendors want a paper copy, the courts could ask them to donate back an unrestricted electronic one to the court system for this purpose.)
The courts undeniably can share these briefs, especially if that is known when they are filed. And this preserves the public value of access to briefs. Commercial vendors might still sell their special searches or categorization -- the value they add, which they already fold into their research systems.
Posted by: Don Cruse | Jun 2, 2010 5:58:52 PM
The nub of this is commercial exploitation by Westlaw and Lexis. We in the academic world don't have much of a feeling as to whether attorneys copy parts of briefs from other but similar litigation and incorporate them in their own filings.
For all that's worth, the records and briefs collection at my (non-public, non-academic) library gets a good amount of use. Whether or not attorneys are actually copying parts of briefs is hard to tell - but they are certainly looking at them.
How many actual briefs and records are available for free on the Internet?
At this point, the only court I know of that has opened access to briefs (not records), and even then, to a fairly limited extent, is NY Supreme Court, Appellate Division, 2nd Department. However, stay tuned for a major announcement from Google.
Posted by: Mikhail Koulikov | Jun 2, 2010 3:12:35 PM
Posted by: Steve | Jun 2, 2010 1:03:56 PM