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.
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)