Do Lexis and Westlaw (and Harlan) infringe the copyright of the author of a brief when they post briefs filed in court?

February 26th, 2012

The complaint is here.


Volokh has some commentary here:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infrigngement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.

I follow this issue with great interest. The value of briefs is not just in merely posting them. The value lies in mining the briefs to determine the efficacy of various arguments, and how courts accept them. West and Lexis aren’t even thinking about this.

Oh, I can’t wait to see what the law suits would be like against Harlan, when it puts frickin everything online, in a form you can Google. Lawyers will suddenly see their mystique and aura fade away, when their records are publicly available. Oh, I’ll get sued, indeed.