Dec 13, 2012

Posted in Assisted Decision Making, Harlan/Siri

Lexis and WestLaw File For Summary Judgment In Case Considering Whether Briefs Submitted To Courts Are Protected By Copyright

I have previously blogged about a suit against WestLaw and Lexis by an attorney who copyrighted his briefs. He claims that Wexis’s resale of his brief constitutes a copyright infringement.

The parties recently filed motions for summary judgment. You can view the docket here.

I focus in this post on briefs by WestLaw and Lexis, which provides some insights into how their business works.

I couldn’t help but LOL at this statement from WestLaw’s MSJ:

The specific business activity that Plaintiff attacks – West’s Litigator™ database – provides more convenient and comprehensive access to court filings by aggregating millions of documents into a text-searchable database that enables subscribers to locate filings of interest. Despite the fact that West thereby is helping to fulfill the very policy of ensuring public access to court filings to which White otherwise subscribes, Plaintiff has mounted the novel and groundless claim that West infringes its purported copyright rights.

“[P]ublic access”? Do you know how much West charges for documents that should be free?

Here is how WestLaw obtains the documents, and how many they have:

court filings by aggregating millions of documents into a text-searchable database that enables subscribers to locate filings of interest. Despite the fact that West thereby is helping to fulfill the very policy of ensuring public access to court filings to which White otherwise subscribes, Plaintiff has mounted the novel and groundless claim that West infringes its purported copyright rights.

And West describes the process by which they “transform” documents:

Before an acquired document gets added to Litigator™, West transforms and enhances it in a number of ways designed to facilitate subscribers’ ability to access the information it contains. See id. ¶ 6. Initially, the document is processed, converted into a text-searchable form, and saved in a proprietary file format. See id. This allows the documents to be incorporated into West’s electronic research system. See id. The documents also are coded in order to enable key features of Litigator™. See id. ¶ 7. For instance, the coding allows users to sort and retrieve documents by area of law or jurisdiction. See id. It also enables linking – a central element of West’s product offering – to other documents filed in the same case, to documents filed in similar cases, and to any authority cited in the document that is otherwise available in West’s system, which makes those resources instantly available to West’s subscribers with one easy click. See id. West’s coding of the document also enables West’s KeyCite system to provide instantly available indications of whether any particular cited opinion is still good law. See id. For each document, West creates a unique identifier so that users can identify the document and cite it to others. See id.

West also undertakes a privacy review before a document is added to Litigator™. See id. ¶ 9. This review looks for sensitive and/or private information and redacts that information before a document is made available. See id. Examples of the types of information that are screened out during this process are Social Security numbers, bank account information, or information identifying individuals in sensitive cases such as those involving allegations of sexual abuse. See id. West also reviews documents for sealed or confidential material and removes that as well before uploading documents to Litigator™. See id. ¶ 10.

Once documents have cleared West’s review process and are loaded into Litigator™, subscribers are able to see links to them in lists of search results, as well as links to the case in which they were filed. See id. ¶ 12. By clicking on a link, subscribers can access a document in West’s proprietary file format. See id. Once accessed, the proprietary file generally also contains a link to a PDF of the document. See id. The PDF ensures that lawyers, judges, and other officers of the court have remote access, 24 hours a day, 365 days a year, to an as-filed copy of the document and provides both convenience and a valuable archival function. See id.

The live issue is whether downloading a document from West differs from downloading a document from Pacer–something the Plaintiff concedes is legal:

White admitted that he has no objection to members of the public copying documents he files with courts via PACER. See White Dep. 164:19-165:19. Indeed, he acknowledged that it has “always been the case” that lawyers could obtain copies of filed briefs from PACER or the courthouse. Id. at 128:11-129:4. White is well aware that this right of access to court filings extends to any member of the public. See id. at 71:3-6, 71:18-21, 76:24-77:11. The ability of the public to access court filings through Litigator™ has had no discernible impact on the creation of or market for the Motions or similar works. White acknowledged that the possibility of someone obtaining the Motions via PACER and distributing them had no impact on Plaintiff’s decision to create those Motions or on the quality of his work product.

This interesting bit explains how Lexis gets documents from Pacer (here is the undisputed statement of facts):

Lexis acquires legal documents from various sources. For legal documents filed in federal district courts—the type of legal documents at issue here—Lexis obtains those documents primarily via the PACER system. (St. 10.) Lexis pays the same rate as other private users to obtain documents from PACER. (St. 26.) Lexis also has relationships with certain courts that send legal documents directly to Lexis. (St. 7.)

And from a declaration about how Lexis processes documents (fascinating insights):

16. Lexis is selective in choosing what legal documents to include in the BPM database. Lexis makes strategic decisions about whether legal documents will add value to the BPM product, depending on whether a document pertains to a priority topic or practice area or is from a priority jurisdiction. . . . .

19. A Lexis editor determines if the legal document should be split into multiple documents (for instance, if a brief includes an attachment) or if previously split documents should be combined

20. A Lexis editor or Lexis’s outside conversion vendor reviews all legal documents for sensitive information, such as social security numbers, financial information or information regarding minors, and makes any necessary redactions.

21. A Lexis editor captures and records certain “metadata” about the legal document, such as the case name, the court, the type of document, any expert witnesses involved, and the court opinion with which the legal document is associated. This allows for searching by jurisdiction, document type and any other captured data field.

22. Lexis then sends legal documents and corresponding metadata to an outside conversion vendor that converts the pdf document into Lexis’s proprietary data file format that is text and segment searchable.

23. Following this conversion, Lexis runs a cite recognition program to identify statutes, codes, regulations and court opinions cited in the legal document and to embed links to those statutes, codes, regulations and court opinions in the converted document.

24. Lexis also runs an algorithm program on the legal documents to identify relevant practice areas, which allows Lexis users to search for legal documents by practice area.

Yes, I realize the meta-ness of copying from these briefs that Justia downloaded from PACER.

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  • The problem with this stupidity is once you assent to PACER being legal, your claim is done. I don’t care how much extra “wexis” (I love that name BTW) charges. You have just basically said you have no justifiable claim to the content of the documents and better yet, you are saying that you agree the government can resell your work. How much again is PACER in the black year after year????

    At best, you could mount an absurd claim to the presentation as art maybe. You could possibly lay some claim that you provide limited copyright waiver to PACER and no further, but then are PACERs users violating the copyright by using RECAP, or when they file with the court snippets? How about citations? Are citations fair use? What about work for hire? Isn’t it the paying client who owns the work? Imagine I need a lawyer to negotiate the terms of copyright on work product with my lawyer. Now how do I negotiate the terms of copyright on work product with the lawyer whom I used to negotiate the terms on copyright of work product with the first lawyer…

    At the end of the day, all “wexis” is doing is taking unstructured (in the data warehousing sense of the term) content and structuring it to make it more easily searchable, presentable and usable. Lexis at least will reformat the doc to fit the three major citation systems. They provide analysis and meta data on top of the original. They annotate the original. Like every search service known to man, they provide value added services on top of the content but otherwise don’t sell the content itself since it’s available, for a fee, from your local court or PACER.

    Honestly, I think wexis is giving users the better deal as much as I see them as price gougers.

    • Despite knowing it’s uncouth to reply to one’s own comment, the above doesn’t even touch the issue of the purpose of copyright and whether allowing briefs to be copyrighted furthers the interest of arts and sciences. But that’s not even the most compelling argument against copyright protection for briefs.
      The most compelling argument IMHO against it is that a brief is the mechanism by which a petitioner seeks redress for grievances of contract, civil rights, etc; from the government or from a second party. Why should one lawyers copyright claim in a work for hire product they were paid to produce stand between the aggrieved and relief? What makes the copyright claim more important than the civil rights of another. Because remember, copyright allows for the prohibition of copying. A lawyer could copyright something than prevent it’s use. This isn’t a financial issue, it’s an access to the courts issue.

      Clearly all of the above relies on the extent to which fair use applies and how much copying becomes infringement, etc. But do we really want to go down this road? Are lawyers paid for their briefs when most of them are 80% written by junior attorneys or are they paid for more. I think the more, but I guess I can be convinced otherwise.

  • Pingback: The Top 10 Excuses For Why The U.S. Courts Will Not Open PACER | Josh Blackman's Blog()