Copyrighted Legal Briefs Continued

A number of other commentators have weighed in on law suit filed by two attorneys against Westlaw and Lexis.  The New York Law Journal takes the point about potential liability for PACER and, in an interview, the attorney for plaintiffs notes that Congress mandates that the briefs be made available as part of the service.  The intended audience for PACER, he says, is judges which make it different from a commercial database.  So it looks as if the courts are off the hook.

Eugene Volokh says the issue on copyright in briefs has some sustainability, but given how these documents are used in litigation, many unsettled factors come into play on how they can be distributed:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infringement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

The closest thing to a precedent is a decision on February 21^st in an ongoing parallel suit by a Canadian judge that certified a class action against Thompson Reuters’ Litigation Service (part of Westlaw Canada) largely over the same issue.  The judge acknowledges the difficulty of the question, the questions relating to the application of “fair dealing,” or as we know it, fair use; whether clients can have a role in authorship (in most situations not); how that affects attorney-client privilege; and more.  The judge notes these issues are unsettled at this point but not necessary for him to answer to certify the class.  He is also kind enough to cite a number of law review articles from U.S. law reviews on the topic:

S.F. Birch, Jr., Copyright Protection for Attorney Work Product:  Practical end Ethical Considerations, 10 J. Intell. Prop. L. 255 (2003); L.P. Wang, The Copyrightability of Legal Complaints, 45 Boston College L. Rev. 705 (2004); D.H. Issacs, The Highest Form of Flattery?  Application of the Fair Use Defence against Unauthorized Appropriation of Litigation Documents, 71 Missouri L. Rev. 391 (2006).

I haven't read them, so I have no comment about their content.  The case comes to us by way of Jason Wilson at rethink.k.  I wrote about the Canadian case back in 2010 and concluded the post by saying:  “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.”  I guess I got what I wanted.  I still think it’s a silly case, not necessarily one that is easily decided.  For what it's worth, the comments at the Volokh Conspiracy blog reflect a similar point of view to mine.  My previous post on the U.S. case is here.  [MG]