Do Lawyers Only Copy While Everyone Else is Original?

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.

Copyright Lawsuit Against Thomson Reuters, Lexis Nexis Over Legal Briefs Dismissed

According to a release by Thomson Reuters, U.S. District Judge Jed Rakoff dismissed an action brought by lawyers arguing that Thomson Reuters and Lexis Nexis violated copyright by copying legal briefs and selling access to those documents on their research platforms (White v. West Publishing Corp., S.D.N.Y., No. 12-1340). No details of the decision are available yet, as the judge dismissed the action in a brief ruling on Friday while indicating his reasoning would be laid out in a subsequent opinion.

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Although the legal publishing industry (in which I work) is likely happy with the dismissal because it allows them to continue to sell access to databases of legal briefs, the part of me that studied intellectual property law was pleased to see the legal industry face the same problems other industries must deal with from a broken copyright system. I am also annoyed that the legal industry may craft rules that allow itself to avoid those problems (i.e., legal briefs are ok to copy because they are super special legal things) I suspect the judge will come up with some reasoning why legal briefs are in fact special or unique (somehow making them not subject to normal copyright rules) simply because they were filed as part of a court’s public record. If this is the reasoning, I suspect such a view will open a can of worms with related copyright issues. For example, when copyrighted material is attached as an appendix to a legal brief or court opinion (as the U.S. Supreme Court did in the copyright case Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) in which the court published the very excerpts from Gerald Ford’s memoirs that were at the center of that lawsuit) does it lose its copyright protection? Does the court filings about a copyrighted work, destroy the protection of that very work just because it was part of a legal brief. At this point, I do not see any reasoning that can differentiate between the copyrighted work of an attorney from other copyrighted works that become part of a court’s records.

One additional note, a rather ridiculous argument in today’s very press release by Thomson Reuters on the dismissal shows their ignorance of copyright law:

Westlaw and Lexis countered that they were entitled to use the documents under the doctrine of fair use, according to court filings. They noted that the documents were generally available to the public via the Pacer filing system.

In light of the current debate highlighting how PACER data is generally not made available to the public this is an ill-timed argument to cite. Further what does general public availability have to do with copyright? Think of how quickly piracy lawsuits would be thrown out, if the accused copyright violator only had to demonstrate how available a work was?

I am eager to see how the judge arrived at his decision to dismiss the lawsuit. Perhaps the sequel to this lawsuit will be brought by laws students against law school reviews and journals (I worked for a journal in law school and I had a copyright professor that insisted any work I did for the journal was “obviously” a work-for-hire. However, most work for hire involves a creator being paid, not the other way around)

Stay tuned!

The Reasoning Behind Eureka’s Purchase of West Academic Publishing is Strange

The private equity firm, Eureka Growth Capital, that purchased West Academic Publishing from Thomson Reuters has put out a press release which gave more details about the deal. The release indicated that the deal was actually a partnership with the Thomson Reuters managers that were operating West Academic Publishing. Although the release also acknowledged declining enrollment in U.S. law schools, it asserted that the purchase provided “opportunities for significant growth as the legal economy recovers.”

Law School Applicants

Tuition

This statement is interesting in light of the recent online debates concerning the causes for the drop in law school applications and the downturn in the legal market. Eureka’s statement seems to indicate that they view the recent downturn in law school enrollment as a temporary condition caused by a weak legal market. Personally, I think this logic is flawed, since economic downturns typically have a counter-cyclical impact on education enrollment. Many commentators on the law school drop have argued that it is more of a downward correction that has more to do with the employment metrics scandal and increased public awareness about the real value of law school compared to tuition. To make matters worse, there are convincing arguments (increased focus on legal spend by corporations, etc.) that the weakness in the legal market represents much more than a temporary reflection of the decline in the overall economy. If either of these declines is in reality a more permanent shift or correction (i.e., a “new normal”) rather than simply a temporary condition, Eureka’s expectation of “significant growth” would seem to be misplaced.

Does Eureka really not believe the nay-saying about the legal market? Does Eureka know something everyone else has missed? Has Thomson Reuters sold Eureka a lemon? Are both companies unaware of these trends? We may never know Eureka’s reasons but it seems like a risky move on Eureka’s part.

Thomson Reuters Sells Law School Publishing Assets to Private Equity Firm

It appears Thomson Reuters has sold off the part of its publishing business that was focused on the legal education market. The sale (which was leaked by TaxProf Blog) transfers Minnesota-based West Academic Publishing, which includes the Foundation Press, West Academic, and Gilbert’s Law Summaries imprints to the private equity firm, Eureka Growth Capital. The move seems to get Thomson Reuters out of the business of publishing casebooks, textbooks, and other legal education products. I have to wonder if this move is tied to all the recent attention being given to the drop in law school applications, which would indicate that this isn’t exactly a growth market.

Eureka_Growth_Capital

Content is King (But Only When Licensed Apparently)

200px-Crown_of_Italy.svg For years, the growth rates in software have given the big legal publishers a big case of software envy. As a result they have been trying to mold themselves into software companies by focusing on buying up software companies, offering software suites, and finding ways to inject themselves into professionals workflows. The focus on software go to a point that you may have heard Mike Suchsland, president of Thomson Reuters Legal, saying:

We have decided that our long-term vision is not information, it is software tools, solutions, ways to enable attorneys to practice in a more cogent way

The attitude reflected in the above statement can be found throughout the legal publishing industry and prompted Dewey B Strategic to declare that “Content No Longer King.” While I agree that there are real benefits to focusing on the software that supports the workflow of the professionals, such as lawyers, I think this envy has distracted many from the simple value of high quality content and left legal publishers with a case of content schizophrenia. As a result, we have seen many stories about legal publishers touting the licensing of content from third parties while at the same time talking about how how providing information is not important. The most recent of which was Thomson Reuters announcement of a license to carry content from CQ-Roll Call. Dewey B Strategic did a very good job of re-capping some of the recent content licensing activity:

Dominance in the legal publishing industry appears to hinge as much on grabbing exclusive content as on enhancing platform functionality. In December there were reports that Bloomberg may be negotiations to purchase the Financial Times Bloomberg acquired the Bureau of National Affairs in 2011. Within the last two years Lexis Nexis purchased Law360 and Knowledge Mosaic and entered into a exclusive alliance with American Lawyer Media. It is also rumored that they have extended its exclusive relationship with Dow Jones/Factiva for several more years.

I think this strange case of content schizophrenia has lead legal publishers to downplay content when faced with the costs (especially when compared to software) but somehow ignoring that same cost when paid through a license agreement. These publishers should be asking why, with all their resources, they can not manage news or other content operations that produce content that is as valued as the content they are licensing. The licensing route also would seem to carry significant risk when the inevitable round of licensing renewals place legal publishers in an uncomfortable position of paying more or losing content on which their customers come to rely.

In the end, I think legal publishers should embrace their role as information providers but acknowledge that information is distributed in a broader array of ways (which now includes software and within workflow tools). The choice between being a software company or an information provider is simply a false choice (you are both – accept it) and I fear that as long as they focus on that misleading dichotomy more bad short-term moves are in store.

Data Used to Predict Settlement Negotiation

In reporting from LegalTech 2013, Robert Ambrogi recently highlighted an interesting product that utilizes data on prior settlements to predict when the parties are likely to settle and for how much. The product is called Picture It Settled and the website claims it’s predictions are based on “thousands” of cases and is 80% accurate. If your interested, the tool is free to use for a limited time.

picture-it-settled

When will there be a negotiation prediction tool for dealing with my wife?

Three Developments in the Wake of Aaron Swartz Death Worth Supporting

Since the death of Aaron Swartz, there has been a number of developments related to open information access and the causes he advocated. Here are just a few of the most relevant:

  • Openpacer.org – an effort to craft legislation to allow free public access to PACER, the federal court docket database;
  • Operation Asymptote – an amazingly simple project to crowd-source the collection of PACER data using the system’s “the first $15 is free” system in combination with a Firefox plugin; and
  • Aaron’s Law – legislation supported by Rep. Zoe Lofgren (D-Calif.) and Sen. Ron Wyden (D-Oregon) that would amend the Computer Fraud and Abuse Act by specifically excluding from the law breaches of terms of service and user agreements, and the definition of “unauthorized access.”

P.S., It really really bother me that the PA in PACER allegedly stands for “Public Access.”

OrangeLT – What Not to Do If You Want Others to Trust Your Technology

I have been monitoring press releases from legal technology companies lately to identify additions to my Legal Information Industry Directory and when I stumbled across e-discovery services provider Orange Legal Technologies (aka OrangeLT) I was not left with the impression of a high tech company that knows what it is doing. I think the below is even more troubling when you consider it coincides with LegalTech 2013, the big legal technology conference.

The first troubling sign was the company’s cited URL in its own press release, which pointed to http://www.orangelt.com. Instead of being presented with a company website describing their services, I got this:

the unimpressive OrangeLT website

the unimpressive OrangeLT website

The problem appears to be that while OrangeLT owns the cited orange.com domain (confirmed via whois), it isn’t its primary domain. Yet, it is linking to it from its press releases. Although it doesn’t make sense to me to use .us as a primary or to link to a secondary domain in a press release, the mess is made worse by the company not having an automatic redirect in place on any or all domains it owns. Then I noticed that all the contact emails use the .com domain. Is this company business model to try to confuse people trying to contact it? Even with all these problems shouldn’t the person who crafts their press releases check the links before sending them out? On a hunch, I checked other press releases from OrangeLT (including their presumably important press release on LegalTech and encountered the same issue (hello blue host!).

OrangeLT logo at original size

OrangeLT logo at original size

After finding the OrangeLT website, I saw several other bad rookie errors, including a logo with ridiculously unreadable text and a very confusing copyright notice. I usually check copyright notices for any clues about whether a company is owned by a parent. The posted notice on their site footer is:

OrangeLT's confusing small print

OrangeLT’s confusing small print

I am very supportive of Creative Commons licenses but what exactly is this company saying? I can freely copy the content on its website as long as I give attribution? Does this include their site design, images, content, news, or their products? Are they really not reserving complete copyright in anything on its site? Without a link to a “terms of use” or other clarification, can we assume everything is attribution only? fun.

I know I am being a bit rough on OrangeLT but if I was on the market for e-discovery services (services requiring precise high-end technical skill and trust), I do not think I would even consider a company that bungles its own website so badly.

Deep Layoffs Revealed at Thomson Reuters

The New York Observer has reported (HT: 3 Geeks and a Law Blog) that Thomson Reuters issued a large round of layoffs last week. The Observer reported that as many as “3,000 people were let go, out of approximately 50,000 employees” worldwide. The layoffs appear to have been focused on jobs serving the financial sector, including those working on its Eikon financial product, managers within its editorial staff, and the Reuters TV team. In addition, it appears that no 2013 raises will be given to employees making over $100,000 a year.

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The write up at 3 Geeks and a Law Blog has some good commentary on how these recent layoffs fit into other bad news associated with Thomson Reuters’ foray into the financial sector, such as the stepping down of the prior Thomson Reuters CEO.

These developments obviously reflect well on the current strength of competitor Bloomberg BNA, which seems to have defended itself against a challenge from Thomson Reuters’s Eikon product in the financial arena, while it continues to expand its legal and tax business.