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March 7, 2012
Vending Appellate Briefs: A 2010 selective survey of jurisdictions on providing briefs to commercial vendors
Like Mark Giangrande's recent posts, listed below, I find lawyer claims that court pleadings acquired for some sort of cost-plus or commercial gain violates copyright laws are questionable at best. Who really is the "owner" of work product? The firm, the billing partner, the associate who actually drafted the pleading under a partner's direction, the client who paid for legal representaion?
My hunch is that the matter will be resolved eventually. At issue may be the extent to which a public record is in the public domain. Will, for example, courts be required to go through the Copyright Clearing House when an individual requests a copy of a pleading in person? Will court records centers, PACER and commercial vendors have to obtain permissions and possibly paid whomever the "author" is fees? Where will "fair use" come into play? Will courts end up requiring a waiver of copyright for accepting pleadings?
Hell if I know. But as a footnote to Mark's recent posts recent posts, listed below, a former Standford Law student, Bryan L. Jarrett, wrote a directed research paper for Paul Lomio a couple of years ago. About Jarrett's Vending Appellate Briefs paper, Lomio wrote:
I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs. The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.
One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs. Some states have made various arrangements with vendors; others refuse to do so. For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.
Jarrett's paper "surveyed the largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors. The data was gathered in 2010" according to Erica Wayne's follow-up Legal Research Plus post. In Selling Others’ Briefs, Illustrated, "[t]o better illustrate some of the points made by Paul in his posting Selling others’ Briefs," writes Wayne, "Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper 'Vending Appellate Briefs.'” [JH]
For additional LLB posts on the issue, see:
- Lawyer Copyrights Briefs, Sues West And Lexis for Distributing Them
- Copyrighted Legal Briefs Continued
- Copyrighted Legal Briefs Continued: Are The Downloaders Just As Liable?