Copyrighted Legal Briefs Continued: Are The Downloaders Just As Liable?

A few more observations about PACER’s role in the legal brief copyright case are in order.  One comes from a tweet by Sarah Glassmeyer that the prime users of PACER (95%) are, gasp, the vendors.  The product in the packaging of the litigation products has to come from somewhere.  As I think more about the “parade of horribles” that proceed from a potential finding of infringement in this case, what happens to the lawyers that may have downloaded briefs from Westlaw or Lexis?  Can they be liable for infringement?  I’m not sure there is an analogy with the music and movie litigation we’ve seen in the past.  Some judges have had problems with the level of damages in those cases compared to the cost of the infringing items, but not the liability.  Imagine West as the Napster of legal briefs.

One of the pieces of the literature I cited in my last post is available as a download from SSRN.  That would be The Highest Form of Flattery? Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents by Davida H. Isaacs, of the University of Maryland and published at 71 Missouri L.Rev. 391 (2006).  Another article that was not mentioned in the learned judge’s opinion from Canada in the related suit is Appellate Court Briefs on the Web: Electronic Dynamos or Legal Quagmire? by Michael Whiteman from the Salmon P. Chase College of Law at Northern Kentucky University.  It’s published in 97 Law Library J. 467 (2005).

Previous coverage of this issue is here and here.  [MG]