February 24, 2012
Lawyer Copyrights Briefs, Sues West And Lexis for Distributing Them
Two lawyers have opened a can of copyright worms by filing a class action suit against West and Lexis for using briefs in the brief banks sold by their respective companies. They allege that these documents are copyrighted by attorneys and seek damages, the amounts depending on whether the works are registered or not registered. I acquired a copy of the complaint via Bloomberg Law, so I’m wondering when they will be joined to the suit. Aside from the allegations, the attached exhibits are copyright registration certificates that show original works called “Plaintiffs' Requested Voir Dire” among others. I don’t plan on seeing this on Amazon any time soon.
I don’t question the authorship, though some questions come immediately to mind. The first is who actually owns the work. I understand the registration, but lawyers being lawyers and the smell of money enticing, will there be clients intervening claiming the document was a work for hire? I mean, who writes a requested voir dire for the fun of it? Clients usually pay for this kind of stuff as part of the representation, and production of the document Is certainly charged against billable hours. I generalize how this process works, but the client has a plausible argument that the document belongs to him or her.
My next question is whether the Administrative Office of the Courts can be a defendant. After all, what’s the price these days to download a document from PACER? Ten cents per page? Isn’t that a sale? And what if another lawyer writes a substantially similar Plaintiffs' Requested Voir Dire? Would that attorney be liable for copyright infringement? Your honor, my esteemed colleague copied my work and merely changed a few names. Where is my money? And how about all the briefs and other filings that populate Scribd and other document sites? Copyright infringement doesn’t require financial gain as an element of suit. Shall we see DMCA takedown notices served to these sites? How would fair use play into this?
The biggest problem I see with this case is not whether the plaintiffs win, but what happens to the legal profession if the plaintiffs win. It would be piranhas to a meal. I’ll be watching this one for the entertainment value if nothing else. Find the case on your own. I don’t want to be liable for illegal distribution of a copyrighted work. The case is Edward White and Kenneth Elan v. West Publishing and Reed Elsevier, Southern District of New York, 12-CV-1340, filed on February 22, 2012. Here is a report on the case from Thompson Reuters News & Insight. [MG]