Jean O’Grady @ Dewey B Strategic posted about the recent dismissal of White v. West Publishing Corp., calling it a victory for fair use and common sense. I obviously disagree and I think her argument about why legal briefs should not be protected reveals one of my reasons why. She re-posted her earlier argument that:
Call me a cynic but aren’t a huge chunk of the legal opinions written in this country essentially “derivative works” based on other peoples arguments and analysis? Don’t judges (or their clerks) take whole paragraphs from briefs and drop them into opinions? Don’t lawyer’s draft briefs by selecting text from judicial opinions and legal memoranda?
Does she have a point? Yes, but that point could be made against all of copyright and is not at all unique to legal briefs. Couldn’t you say the same of programmers writing a program or marketing professionals putting together market research? Are these things also not due copyright protection? Name the last movie you saw with an original plot? Copyright reformers have been arguing for years that culture itself works in much the same manner as lawyers drafting legal briefs — it involves a lot of copying. Although it is seldom admitted openly much of what we produce as a culture is the result of copying. If we are lucky a few percent might be truly original expression. As Albert Einstein said, “The secret to creativity is knowing how to hide your sources.”
UPDATE: An additional problem with arguments focusing on the nature of legal briefs (i.e., the work) is that they are really arguing copyrightability not arguing fair use, which would have to focus on the activities of the alleged infringer (i.e., what Thomson Reuters and Lexis Nexis actually do with the works). From that view it is even harder to how the commercial sale of these works jives with the fair use factors. It still isn’t clear if this dismissal was based on the copyrightability of the work (is it eligible for protection) or on fair use (how it was copied was ok).
UPDATE 2: Now Joe Hodnicki over at The Law Librarian Blog has weighed in to agree with Jean O’Grady’s view and also not making the argument that what the legal publishers did was fair use but that legal briefs do not deserve copyright protection. Again, I highly doubt there is any logical way to support the argument that a written legal argument is not copyrightable (At least one that would not invalidate all of copyright). I am also troubled by how little understanding there is about the difference between copyrightability and fair use.