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Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?

A lawyer says yes. [UPDATE: Here's his letter.] 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. 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.

Thanks to Kevin Gerson of the UCLA Law Library for the pointer.

UPDATE: A reader suggests, "I should think that the minute they are filed they become public information; accessible to all." 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. So the fact that they are descriptively accessible to the public, at least if the public is willing to go to court or to read the briefs on PACER, doesn't resolve the copyright infringement question.

Now if the claim is that the minute they are filed, they ought to become available for copying by anyone, including by commercial services, that's a perfectly defensible claim. It's just that there's no existing copyright law doctrine that clearly embodies such a rule. (There is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such doctrine as to briefs filed in court.)

One would therefore have to argue, as I mentioned above, that the fair use doctrine should be interpreted as basically embodying such a rule. It's just that the doctrine is vague enough that we can't be clear that courts will indeed interpret it this way.

UPDATE: Thanks to Erika Wayne for the pointer to the letter.

Le Messurier (mail):
I should think that the minute they are filed they become public information; accessible to all. Am I missing something?
7.23.2009 6:53pm
Commentor (mail):
How is the case strong, aren't all court filings public record?
7.23.2009 6:55pm
cboldt (mail):
Is he going to sue PACER too?
On a related subject, what about Patent Applications?
7.23.2009 7:03pm
Mike& (mail):
Lexis and Westlaw charge for access to the briefs, though. How, if at all, does that factor into a fair use analysis?

Intuitively (I have no legal understanding of the legal issues) it seems shady to allow Lexis and Westlaw to profit from another's work. After all, it isn't like they are distributing briefs for the public good.
7.23.2009 7:08pm
alkali (mail):
Court filings are (generally) public record; they are not public domain.

For example, if some other author is infringing the copyright on my book, and I submit a copy of the book and the infringing book in support of a motion for summary judgment, my book doesn't become public domain. (I am guessing that I probably wouldn't be able to stop people from going to the clerk's office and reading the copy in the public file.)
7.23.2009 7:09pm
hattio1:
Professor Volokh,
You say that it is quite unlikely that the posting would diminish the market value of briefs. Do you say that because there is a relatively small market value? Or because they are available anyway to the public? I'm not a copyright attorney at all, but I'm thinking along these lines. There are practice books, that give you the basics to be included for various motions. Assuming a practice book wanted to use actual winning motions, would they have to pay royalties to the attorneys (or wold it be a work for hire and the royalties go to the client)? Anyway, obviously if there were any sort of market in briefs, posting them electronically makes them more easily accessible and therefore less valuable. I realize that there isn't really a market in briefs at this point. I was thinking along these lines because I used to go to the courthouse and get the briefing from seminal cases all the time.
7.23.2009 7:11pm
Crunchy Frog:
It also wouldn't stop them from going to the public library either.
7.23.2009 7:12pm
hattio1:
The more I think about this, the more it strikes me that the more interesting question is whether the brief's copyright would belong to the lawyer or the client. Could a client who paid for the original briefing and research (through their attorney's fees) sue the attorney for using the brief again for another client?
7.23.2009 7:14pm
yankev (mail):
I remember Lawyers Cooperative Publishing Company had a product called Supreme Court Reports, Lawyers' Edition -- L. Ed. in Whitebook form. (For some reason the Blue Book was the Whitebook in the mid-to late 1970s.) Is that product still sold? It was not the official reporter like U.S. Reports and lacked the key numbers of Supreme Court Reporter, but it included the briefs filed by either side. How did Lawyer's Coop get around the problem?
7.23.2009 7:27pm
Eugene Volokh (www):
Hattio1: The brief belongs to the law firm, unless a written agreement between the lawyer and the client conveys the copyright to the client. See 17 U.S.C. secs. 101 (definition of "work made for hire"), 201, and 204.
7.23.2009 7:28pm
hattio1:
Professor Volokh,
Thanks, I just thought it was an interesting question.
7.23.2009 7:34pm
tvk:
I would qualify Eugene's answer to the copyright ownership question by noting that it depends on whether the client made creative contributions to the brief. If the lawyer wrote the entire brief, there is not much question that he owns the copyright. But if the client has substantial input (or the client's in-house lawyers), then there is a very plausible claim of joint authorship and joint ownership.
7.23.2009 7:37pm
Bruce Hayden (mail):
EV is, of course, correct, as I understand C/R law. The briefs are automatically protected by copyright, unless created by the federal government. But Fair Use would likely excuse most uses of the briefs.

However, Lexis and Westlaw are making commercial use of the briefs, whereas most others are making less (or maybe even non) commercial use, and that is one of the prongs for Fair Use. Would it be enough to move that use away from allowable under FU? Probably not, but still not clear.

As for the Work for Hire doctrine, I am not sure if even a written agreement would be sufficient to give legal authorship to the client. Here is the definition:
A "work made for hire" is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
(1) is presumably inapplicable, so the question revolves around whether it falls under one of the types of works listed in (2). And, I just don't see it fitting in there.
7.23.2009 7:41pm
hattio1:
Professor Volokh and Bruce Hayden,
Would the rule be different for in-house counsel based on what Bruce Hayden posted? I assume that typically, in-house counsel doesn't do the litigation briefing, but if they did in certain cases, it seems like the briefing would belong to the employer/client, no? What about if there is a dispute over copyright ownership between the firm and the attorney who actually wrote the brief?
7.23.2009 7:58pm
Not studiyng for the bar:
Professor Volokh,

Expanding on hattio's first comment, I wonder if you gave short shrift to the market impact factor.

Contrary to your post, there does appear to be demand for a brief. Institutional clients (through their general counsel) hire firms based on the expected quality of the brief. That is the relevant market. And the expected quality of a brief is highly variable. A brief, though based on public information, is an incredibly original and creative endeavor. An effective brief must synthesize issues of style, research, and analytic argumentation. Additionally, briefs and motions are often based on proprietary templates developed by the firm. At any big firm, there is a database of previous motions and briefs, which are routinely reused in new litigation. There is (hypothetically) a "Cravath way" of writing a motion and they don't want to see that value diluted by copying competitors.

Thus, when these briefs are disseminated without authorization, low-cost firms with Westlaw access can undercut high-cost firms that put in the time and effort to write the briefs. Clients will eventually get wise, and they'll realize that there's no point in paying Cravath for a "Cravath motion" when a lower-cost outfit can produce a similar product simply through mimicry.

That's not to say that the fair use argument falls apart. The factors are malleable and these facts are hard to distinguish from the PACER situation. However, I believe the existence of a market makes the fair use defense more difficult to assert.
7.23.2009 8:03pm
cboldt (mail):
-- There is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions --
.
Does that include briefs by the prosecution? Briefs in defense of federal claims?, etc.
7.23.2009 8:18pm
drunkdriver:
Coincidentally, just last week I was talking to a West sales rep about the availability of briefs; I asked if they planned to eventually add all briefs. He said they were actually becoming selective and scaling back what they would upload because so many briefs in pedestrian cases were not worth reading. So they are selecting briefs for their quality and thus value. I don't know if this makes the liability case stronger, but it does perhaps help a plaintiff make out a damages claim.

On another note, over the years I have amassed quite a collection of briefs from other lawyers- some from cases I've worked on, and others that I've downloaded from Pacer or various other sites. I keep them for help on both stylistic and substantive points. Am I an infringer?
7.23.2009 8:24pm
R. Gould-Saltman (mail):
It occurs to me that Mr. Conner, and others, might have found found this analysis less appealing had "Westlaw", going back to the days when they were simply "West", not argued so strenuously, and successfully, that they had transformed public government documents (decisions and opinions) which the taxpayers paid to create, into their own copyrightable and copyrighted product by "Key-numbering" them. As far as I know, "Westlaw" isn't proposing to do anything "transformational" with the briefs, but instead simply to sell copies of them as part of their for-profit enterprise.
7.23.2009 8:26pm
cvt:
To me, its hard to avoid the perception that Westlaw and Lexis do not add much value to unpublished case materials like briefs. I pay for some of Westlaw's briefs and docket libraries, but I think they are less useful and overpriced in comparison to its core libraries for case law, statute, administrative codes, secondary works, etc. To retrieve case specific materials, I use the court web sites much more often than the Westlaw services that I have available. Although I think W&L should have a right to copy briefs, I wouldn't find it a huge tragedy if they didn't because they seem to mostly still duplicate what is available on PACER and some state court web sites with little added value. (I may be wrong about appellate briefs but it's my understanding that the federal appellate courts are beginning to accept more electronic filings.)

Is any of that relevant to the legal question? Maybe not in a strict sense. But PACER and related systems are great public works in comparison with the type of services that W&L provide in that area (and I'm not including their core services for case law, etc.).
7.23.2009 8:51pm
LL (mail):
If the Court quotes the brief, that part of the court opinion is copyrighted? So its no accessible to citizens?
7.23.2009 8:59pm
StrongJer (mail):
Would the fair use argument be stronger if Lexis/Westlaw contends they are not "selling" the brief, but are instead charging customers for the ability to "search" for briefs and then have them electronically delivered (i.e., selling a service rather than a publication)? Thus, Lexis/Westlaw are acting as a courier service that provides/delivers customers with electronic copies of briefs that are already regularly available at the respective courthouse.

For instance, I can hire a researcher/courier to go down to the county courthouse and retrieve all briefs filed for a particular case during a particular month. And the courthouse charges $1 per page to make a copy. I guess I do not really see how this is any different than Lexis/Westlaw other than they're cruising down the electronic superhighway instead of paved city streets.

This argument could fall apart, however, if the end-user (i.e., lawyer) is deemed a direct infringer for lack of fair use and then I suppose Lexis/Westlaw might be on the hook for indirect infringement?
7.23.2009 8:59pm
Doug Hedenkamp:
A copy of the letter is posted online. Some of the copyright issues raised here are dicussed in the letter:
COPY OF LETTER

Regarding fair use, the Princeton University Press case cited in the letter makes it clear that a third party may not simply copy a publicly availble document and sell it for a profit, even where an end user's use is protected by fair use.

The notion that Lexis and Westlaw are not impairing the market for briefs is undercut by the fact that Lexis and Westlaw have conclusively demonstrated that there is a large market for the use of briefs as secondary sources, and that market is clearly impaired by Westlaw and Lexis's infringement. Indeed, how is a site like Briefreports.com—who obtains consent for the briefs it sells—supposed to compete against Lexis and Westlaw, who simply copy and sell whatever briefs they want, without bothering to get permission?

As for the notion that these are public documents, the Suffolk County case makes it clear that a document required by law to be made available to the public by a government agency does not lose its copyright protection, and that a third party may not simply copy it and sell it to others.

Finally, the copyright issues are really only half of the story. The other half is the fact that the Court requires litigants to file extra copies of their briefs, which the Court then gives directly to Lexis and Westlaw. These briefs were originally intended to be distributed to county law libraries, not given to private companies for their own profit.

In any event the letter also suggests a solution which, I think, could satisfy those who want royalties for their briefs, as well as those who want greater public access to the briefs, while also having the potential to benefit legal services.
7.23.2009 9:16pm
Soronel Haetir (mail):
StrongJer brings up an interesting question. Perhaps WL is safe because they aren't competing in the same market as the lawyers writing briefs. But what of a WL user who then re-uses a brief, changing only those elements that differ for their case.

I know it's nicer to go after a single deep pocket, but perhaps this would simply be a situation where that is not viable.
7.23.2009 9:32pm
Oren:

One would therefore have to argue, as I mentioned above, that the fair use doctrine should be interpreted as basically embodying such a rule. It's just that the doctrine is vague enough that we can't be clear that courts will indeed interpret it this way.

Easier still -- the Courts could require, as a condition of filing, a non-exclusive grant of license.
7.23.2009 9:33pm
Doug Hedenkamp:
StronJer, the difference is that an actual courier does not make multiple copies of a document in order to sell them to whoever wants them. A courier goes to the court with a specific order, the court (who is lucky enough to have immunity) makes the copies, and the courier simply delivers the copy made by the court.

Lexis and Westlaw actually make copies themselves (before anyone orders them) and offer those copies for sale to whoever wants them. That is not the m.o. of a mere courier.
7.23.2009 10:01pm
Doug Hedenkamp:
Also, in response to some comments above, the Pacer situation is different, because Pacer is run by the federal government. Just because the federal government does something does not mean that it is legal for private companies to do.
7.23.2009 10:12pm
Sebastian the Ibis (mail):
A Undergrad Miami Professor copyrighted his lecture notes and Exams, then sued the fraternity run website that was distributing them.
7.23.2009 10:20pm
Snitty:
There actually is one precedent that's mildly on point.

Recenly there was a appeals court (9th Cir.) decision in the TurnItIn case. In that case students sued TurnItIn, a company that checks papers for plagerism. The students alleged that TurnItIn violated their copyrights in the papers by making copies of all papers turned in and using them to check against future plagerism.

The case revolved mostly around the fact that the students had agreed to the click-through licenses (even though they had no choice but agree to them if they wanted to get papers graded for school).

The court did go through the Fair Use analysis (one plaintiff didn't agree to the license, and got a password from someone else, raising a CFAA claim). The court there found that despite the fact that TurnItIn used the entirety of the students papers, used them entirely for commercial purpose, fair use excused their infringement. The court concentrated on the transformative nature of the use -- from a paper to data to detect plagerism.

That same transformative use isn't as clear here, but those two factors that weigh heavily against fair use have been found to not be disposutive before.

A little more (links mostly): here.
7.23.2009 10:23pm
Soronel Haetir (mail):
WL does something entirely different from turnitin.com, WL makes the content available. If turnitin.com made the paper's contents available they almost certainly would have lost.
7.23.2009 10:35pm
Bruce Hayden (mail):
Lexis and Westlaw actually make copies themselves (before anyone orders them) and offer those copies for sale to whoever wants them. That is not the m.o. of a mere courier
Close, but not exactly accurate. From a technical point of view, Lexis and Westlaw do make a single copy of the works (the master copy on disk). It is the users of those services that actually make the other infringing copies. However, Lexis and Westlaw would likely be contributory and/or vicarious infringers for those copies.

Of course, the above is when we just look at the reproduction right under 17 USC 106(1). Several others may be implicated, including: creation of a derivative work (106(2)), distribution (106(3)), and public display (106(5)).
7.23.2009 10:47pm
Carolyn Elefant (mail) (www):
I wrote an article on this topic which is in the Legal Times IP Monthly, May 2001 and online here - http://www.his.com/israel/loce/press/brief.pdf

I researched this issue years ago and agree that the copyright issues are not frivolous. Moreover, I can certainly understand lawyers' anger at LEXIS being able to copy the briefs and the lawyer not being able to access other briefs. That concern has been mitigated to some degree by PACER but it is a real concern that LEXIS is able to make money off of others' work product.
7.23.2009 11:04pm
drunkdriver:
Perhaps profiteering, if not infringement, will be alleviated to some degree in the future if courts make briefs, as well as opinions and oral arguments, available for free online? The 7th Circuit currently makes briefs available online, though you'd have to download them individually to be able to search them (i.e. google does not index them).
7.23.2009 11:19pm
Jon Roland (mail) (www):
Isn't it the dirty little secret of the legal profession that legal research often consists of finding briefs in similar cases and plagiarizing them? Or that the legal profession has generally acted in concert to exempt themselves from little matters like copyright when it gets in the way of racking up billable hours?
7.23.2009 11:24pm
George Weiss (mail) (www):
yet another example of the absurdity of current copyright law
7.23.2009 11:37pm
SEC?:
Wouldn't this apply to prospectuses as well? Or the expository section of any document filed with the SEC?
7.23.2009 11:45pm
Jon Roland (mail) (www):
Let's face it. Established custom has become to treat briefs, once filed, as though they are in the public domain. Similarly works read into the Congressional Record. Once made part of the public record someone might claim copyright on the images of the pages, but not on the text.

Many briefs are themselves composed of parts taken from long chains of other briefs, until the ultimate author is lost in time.
7.24.2009 12:01am
Soronel Haetir (mail):

Many briefs are themselves composed of parts taken from long chains of other briefs, until the ultimate author is lost in time.


I could see this being a problem with things like long quoted chain cites and such. I've seen a few where the actual in-line citation was kept two or three levels deep.

As for the comment above about courts making materials available, I could still see massive value in a consolidated database. Much easier to search one provider than to have to check all the circuits and state courts on a regular basis for new material.
7.24.2009 12:29am
Cornellian (mail):
Hard to believe it wouldn't be fair use if you walked to the courthouse, got the actual brief from the court file, photocopied it and took it home to read.
7.24.2009 12:40am
Grigor:
Didn't some law firm -- I think it may have been Milberg Weiss -- a few years ago start slapping copyright notices on their complaints, to prevent copycat tagalong complaints in their securities class actions? That made a bit of news at the time as I recall.
7.24.2009 1:23am
fishbane (mail):
From a technical point of view, Lexis and Westlaw do make a single copy of the works (the master copy on disk). It is the users of those services that actually make the other infringing copies. However, Lexis and Westlaw would likely be contributory and/or vicarious infringers for those copies.

Interesting - Napster would seem to apply here. If one assumes a lack of fair use here, L&W are clearly centralized services inviting contributory infringement, and are even profiting from it (something Napster never managed).

Established custom has become to treat briefs, once filed, as though they are in the public domain.

It appears that established custom in music is heading the same direction. I wonder how much cross-pollination in legal arguments will happen here.
7.24.2009 7:47am
Gramarye:
It's not a slam dunk for either side, but my money is nevertheless on fair use carrying the day. As EV noted, the effect of L&W's use of the briefs on the market value of those briefs is minimal. In addition, lawyers are under an ethical obligation to represent their clients to the best of their ability within the boundaries of the law, and that includes writing the best briefs possible notwithstanding the fact that competitors may read and borrow their language.

Furthermore, while some lawyers might well dispute this, I view briefing as primarily factual, not creative. There is some creativity involved in making arguments, particularly arguments for extending existing law (rather than simply arguments supported by existing law). Fact-intensive work is farther from the "core" of copyright protection than purely creative work. If Connor persuades the court that briefing is primarily a creative endeavor, his infringement claim will be stronger. However, I have seen extraordinarily few briefs that qualified as great works of literature ... and the few that made the attempt to do so generally weren't more effective for the effort.
7.24.2009 9:19am
matt b (mail):
the brief is filed as a public document, submitted by officers of the court. this is a public document not ocvered by copyright law.
7.24.2009 10:03am
Bob Goodman (mail) (www):
What I find funny are the copyright notices on football rule books of various governing bodies, when they're obviously derivative of each other down to their wording, and even of earlier editions of themselves that would long since have entered the public domain even if they were considered copyrighted at first. Since they never try to protect their ostensible copyrights against each other, why do they even bother with the notices?

Chris Garvey has said to me that the proper form of protection of such useful articles -- taking the rule book to be a description of a process rather than the product itself -- would be patent if they were protectable at all. They're not literary works in the spirit of copyright law, so the particular form of expression (i.e. the wording) is not what they really care about anyway. There are only a few ways to express certain things conveniently, and when that's the case supposedly the wording can't be protected by copyright any more than the content of the statements can. If the rule books were worded in some fancy way like poetry, that could be copyrighted, but then they would lose utility.
7.24.2009 10:09am
Barney Rubble:
In a somewhat related vein, there's case law out there (w/ mixed results, if I recall correctly) about the copyright status of several codes, like building codes and electrical codes and such, that are drafted by trade groups and then adopted as law by local governments. The groups want to keep the copyright, so that builders and others need to buy the fat book from them. They say that the legislative enactment of their product does not lose the public status.

If I have time, I'll find the cases and add a link, but maybe EV has already blogged on those in past years and has them handy?
7.24.2009 10:16am
Professor Chaos:

the brief is filed as a public document, submitted by officers of the court. this is a public document not ocvered by copyright law.


Er, that's helpful. Did you even bother to read to the end of EV's post, let alone read any of the comments?
7.24.2009 10:28am
will47:
Accessing the briefs is more expensive than cases in Westlaw, so I guess Westlaw customers are willing to pay a premium for such access. I have seldom found them useful, though it can sometimes be reassuring to know that other attorneys doing the same research have simply found the exact same case law as I have. What bothers me about some of the briefs as they are presented in Westlaw is that they don't even include the name of the firm or the attorney authoring the brief. This is more often true for briefs from state court systems, especially trial courts. So to the extent there is a copyright, it would not be possible from the version in Westlaw to determine the owner.
7.24.2009 10:37am
Lamar (mail):
I won't repeat some of the concerns above, but I wonder whether attaching an income stream to documents filed on behalf of a client would cause a conflict of interest. Just who is the client? The person to whom you owe a duty of zealous representation? Or the lawyers who want a brief to be a quality treatise and source of citations? Let's say you have a case involving issues heretofore unresearched. If you write a brief with all the cases and citations (a mini treatise if you will), your brief could be a hit with busy lawyers. The problem is that your particular client has a fact or two that takes the case outside the realm of what could lead to a very popular and lucrative brief. Or let's say it is in your client's best interest to settle after trial. Do you advise them to settle or do you tell them to appeal so that they can underwrite your mini treatise writing operation?
7.24.2009 10:47am
FormerStudent:
"That something becomes publicly available doesn't strip it of copyright protection.."...anymore than a book stops being copyrighted because a library buys it and makes it available to the public.
7.24.2009 11:02am
Houston Lawyer:
I'm with Jon Roland on this one. Every lawyer has form files where they have taken someone else's work for use in their own practice. The electronic availability of all documents filed with the SEC makes this much easier than in the past.

If someone comes up with a novel way of doing something that works better than what was done in the past, every law firm will blatantly copy the documents.

I believe that the fact that anyone who wants a copy of the brief has the right to get a copy from the court, without any payment to the author, indicates that the Westlaw use is fair use.
7.24.2009 11:12am
Christopher Cooke (mail):
I looked into this legal issue in connection with SEC filings and exhibits attached to them, such as contracts. There is surprisingly little law on this point. There are cases recognizing that forms are protected by copyright law. My assessment is that this is one situation where the literal language of the statute favors the conclusion that briefs are protected by copyright, and that Lexis-Nexis and Westlaw's use of them does not constitute "fair use" because of the commercial use they are making of the briefs (which distinguishes them from the courts, which do not seek to profit from the briefs that attorneys file or by making such briefs available for inspection) but common practice and perception by lawyers (of all people) indicates that Lexis/Westlaw are engaging in fair use.
7.24.2009 12:48pm
hymie (mail):
Shouldn't we go back to the Constitution's copyright clause?

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In the case of legal briefs, those briefs must be written and filed of necessity for the court case, and therefore will be written regardless of whether their authors retain copyright in them. Thus, they should not be granted copyright protection.
7.24.2009 1:04pm
Burt Likko (mail) (www):
There is a presumption that court proceedings are public, which is why briefs filed with the court are available to the public. I'd suggest that this is what it means to have a public proceeding, which is as much a part of the Constitution as the authorization of Congress to create a uniform copyright law. Debatably, then, this material cannot be copyrighted because it is necessarily part of a public proceeding.

If Prof. Volokh is right and review of these documents is fair use under copyright law as it exists, then there is no need to analyze the issue further -- the putative owner of the copyright (the law firm) would either lose because they are claiming copyright on a public document, or would lose because of fair use.
7.24.2009 1:10pm
Tom B (www):
I should be studying for the bar exam that takes place in a few days. I have done no research to support this argument.

When an attorney prepares a document in his capacity as a licensed attorney, he is acting as an officer of the court. Therefore he is a government agent and copyright cannot attach to his work.

Of course, this would not address the matter of pro se briefs.

As for publication in the past, you could always claim implied license. Because everyone knows that the court will reproduce your briefs, and that it will send them along to Westlaw, you implicitly grant a license for those purposes.
7.24.2009 1:23pm
Aultimer:
I think this issue is best addressed by implied license, rather than the unreliable fair use. If you can find a lawyer who didn't have constructive knowledge that her filing was going to be reproduced by Westlaw/Lexis, or one who includes a "don't copy me" legend, then you might have to get to fair use.
7.24.2009 2:19pm
Paul Alan Levy (mail) (www):
Also, in response to some comments above, the Pacer situation is different, because Pacer is run by the federal government. Just because the federal government does something does not mean that it is legal for private companies to do

------

I think this misses the point. Given that the briefs are freely available on PACER for $.08 per page, it is hard to argue that availability on Westlaw or LEXIS has a significant marginal effect on the market
7.24.2009 4:01pm
Dilan Esper (mail) (www):
Given West's long and noxious struggle to copyright "star pagination" (essentially claiming it can prevent anyone from citing even to a PAGE NUMBER of a document in a West reporter, thereby diminishing the utility of competing case reports), I'm basically going to root against West in ANY copyright suit brought against it.
7.24.2009 4:34pm
David Schwartz (mail):
Merger doctrine. When the copyright holder elects to file something with a court, he makes it a purely functional object for that purpose. Copyright does not protect function, only creative expression.
7.24.2009 5:28pm
Doug Hedenkamp:
"I think this misses the point. Given that the briefs are freely available on PACER for $.08 per page, it is hard to argue that availability on Westlaw or LEXIS has a significant marginal effect on the market"

I don't think it does miss the point. Given the fact that Lexis charges $5 per download of a brief, there is clearly a viable market to be damaged despite the existence of Pacer. Furthermone, even if the market value were limited to 8 cents per page or less (it is not), that is still a market value that can be damaged, and every sale by Lexis or Westlaw is a sale that might have been made by an authorized provider with appropriate royalties to the author (or legal aid or the courts depending on who the author designates to receive the royalties).

Furthermore, the letter is about briefs submitted to California courts, which are not even accessible on Pacer to begin with.
7.24.2009 5:35pm
Doug Hedenkamp:
The merger doctrine only applies when there is only one, or at most a very limited number of ways an idea or function could be expressed, such that copyrighting the expression would be equivalent to copyrighting the idea or function. In the case of an appellate brief, there are nearly an infinite number of ways the various facts and arguments at issue in any given case could be expressed (just as the facts in a news report, biography, or history book can be expressed in many different ways). Accordingly, I do not believe that the merger doctrine would come into play.

If the notion is that by submitting a brief to the court it becomes a part of the law of the case, such that the particular expression used by the attorney in the actual brief merges with the common law that results from any opinion that is issued in response to the brief, I think that is a stretch. The Court in Veeck addressed the question of when privately prepared material merges with the law so as to lose copyright protection. (293 F.3d 791.) Veeck held that where the privately created material (i.e. a model code) is submitted for the purpose of being enacted as law, and actually IS enacted as law, it merges with the idea of the law, and it can be freely copies as the law.

Veeck distinguished cases involving other privately prepared documents, such as blue book citation standards, red book car value guidelines, and the AMA's medicare coding system, noting that such documents retain their copyrights despite the fact that they are referenced in the law, and required to be followed, because they are not actually enacted into law, and thus their particular expression does not merge with the law itself.

Briefs do not carry the force of law, unlike a published opinion, and in many cases they are not even referred to in the opinion. No one is required to follow or do anything set forth in any appellate brief. If the text of an appellate brief was used in an actual opinion, that portion of the text appearing in the opinion would merge with the law, and could be copied AS PART OF THE OPINION, but under Veeck, I think it would be a huge stretch to find that a brief, in and of itself, is so intertwined with the law that it merges with the law, and thus loses its copyright even where it is not actually incorporated in an opinion.
7.24.2009 6:08pm
David Schwartz (mail):
There is a key difference between the case where a law references a work and the case where the copyright holder in the work uses it functionally. A key issue in the model building code cases was that the copyright holder induced municipalities to enact their model codes into law, triggering a kind of estoppel. No such argument applies in the cases you distinguish.

There is one and only one way to express the arguments made in that case -- as the parties made them. There is no sensible way to figure out which words are sensible and which words are merely ornamentary. Thus, the merger doctrine applies.

A brief is a purely functional document whose sole purpose, qua brief, is to create a specific effect. The very same content may still be protected for other purposes, but qua brief, it's purely functional, and merger means no copyright.
7.25.2009 3:17am
matt b (mail):


the brief is filed as a public document, submitted by officers of the court. this is a public document not ocvered by copyright law.



Er, that's helpful. Did you even bother to read to the end of EV's post, let alone read any of the comments?



lawyers are public officials (i.e. officers of the court); their writings are covered by the same copyright laws as judges' opinions...that is none
7.25.2009 12:18pm
Doug Hedenkamp:
Sorry, I still don't buy it. The sole purpose of a car repair manual "qua repair manual" is also a functional purpose to create a specific effect. Does that mean all of Chilton's auto repair manuals cannot be copyrighted? The sole purpose of architectural plans "qua architectural plans" is to instruct builders to create a particular physical structure. A political speech or campaign ad may be intended to bring about a specific election result. Editorials and letters to the editor may have the sole purpose of bringing about a specific legistlative enactment. Law review articles may have a functional purpose of influencing the courts identical to a brief. Yet all of these things are copyrightable. The question with merger is not whether or not a work serves some functional purpose, nor even if that is the only purpose of the work. The question is whether that function can be separated from the expression in the work.

In the case of the model codes, they are specifically intended to be enacted *verbatim* into the law. When a model code is enacted it merges with the law itself-- in other words, the *particular expression* in the model code cannot be separated from the law, because it IS the law. A brief is not intended to be enacted into law or incorporated in an opinion verbatim. A brief makes abstract arguments about what the law should be, and, contrary to your claim, those arguments most definitely *can* be expressed in many different ways.

If, for very simple example, I argue in a case that Roe v. Wade should be upheld under stare decisis, I could say:
"Pursuant to stare decisis, the Court's long-standing ruling in Roe v. Wade should be upheld."
Or I could say:
"Under the doctrine of stare decisis et quieta non movere, the Court should refrain from overturning the long-settled holding in Roe v. Wade."
Or,
"This Court has long recognized the doctrine of stare decisis, under which the Court is loathe to reverse long-standing precedent. Under this doctrine, Roe v. Wade should be upheld."

I could go on all night. In the case of model code, the particular expression used is special because it IS the law, while in the case of brief, there is nothing special to the general public about the party's particular expression. It is NOT authoritative, and 50% of the time, it is not even persuasive. Accordingly, there is no compelling reason the public must be given an unfettered right to copy that particular expression (as opposed to the arguments embodied in the expression, which always may be copied).
7.25.2009 4:37pm
Doug Hedenkamp:
The term officer of the court does not make an attorney equivalent to a judge or other actual employee of the state. As the Supreme Court has noted, despite the common use of that term, "nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks, or judges. Unlike these officials, a lawyer is engaged in a private profession, important though it be to our system of justice. In general, he makes his own decisions, follows his own best judgment, collects his own fees, and runs his own business." (CAMMER V. UNITED STATES, 350 U. S. 399, 405 (1956))
7.25.2009 4:43pm
David Schwartz (mail):
In the case of the model codes, they are specifically intended to be enacted *verbatim* into the law. When a model code is enacted it merges with the law itself-- in other words, the *particular expression* in the model code cannot be separated from the law, because it IS the law. A brief is not intended to be enacted into law or incorporated in an opinion verbatim. A brief makes abstract arguments about what the law should be, and, contrary to your claim, those arguments most definitely *can* be expressed in many different ways.
How is this different from saying the brief is the argument? Your argument proves too much. For example, if a law says "prohibited", how is the law any different if we change that to "forbidden" or "not allowed"?

I could go on all night. In the case of model code, the particular expression used is special because it IS the law, while in the case of brief, there is nothing special to the general public about the party's particular expression.
It is special because it is the argument. The argument is not some abstract concept that the brief describes -- the brief is the argument.

If, for very simple example, I argue in a case that Roe v. Wade should be upheld under stare decisis, I could say:
"Pursuant to stare decisis, the Court's long-standing ruling in Roe v. Wade should be upheld."
Or I could say:
"Under the doctrine of stare decisis et quieta non movere, the Court should refrain from overturning the long-settled holding in Roe v. Wade."
Or,
"This Court has long recognized the doctrine of stare decisis, under which the Court is loathe to reverse long-standing precedent. Under this doctrine, Roe v. Wade should be upheld."
Of course, but all three of these are the same work as well as the same words. So this is no help if you're claiming a different work could make the same argument. (For example, if you claimed that changing one of these to the other entitled you to copyright protection in your derivative work, you'd be laughed at. Making a distinct work that makes the "exact same argument" is a distinctly non-trivial, and possibly impossible, task.)

Submitting a legal brief and asking a judge to rule based on it is equivalent to submitting a model law and asking a legislature to pass it. You make it a part of the public record and a part of the law-making process. That process must be open to the public and asserting copyright is simply incompatible.

The estoppel and public interest arguments don't apply to the case of repair manuals and architectural plans. And architectural plans are not just intended to produce a particular effect (no more than a play produces the effect of seeing the play).

And I would argue that if there were an analogous case involving car repair manuals, I would reach an analogous result. For example, if there was significant public interest in how a particular repair was documented for purposes of understanding some intended public-affecting result of the documented repairs, copyright in the document would yield for that purpose under the merger doctrine.
7.25.2009 7:23pm
Jon Roland (mail) (www):
Doug Hedenkamp:

The term officer of the court does not make an attorney equivalent to a judge or other actual employee of the state.

Correct. If we examine the history of the expression we find that "officer of the court" includes anyone with sworn duties in court, including attorneys, witnesses, and jurors. But only for the duration of a court session. Not when merely doing preparatory work. And there is another difference involved. The duty of judges and jurors is to the constitution. The duty of witnesses is to the truth. The duty of attorneys is to their clients. Thus we have a distinction between public and private agents/servants.

But by this reckoning jurors are properly regarded as "judicial officers" and required to take a oath to "uphold" the constitution, not merely to follow the instructions of the bench.
7.25.2009 10:19pm
Jon Roland (mail) (www):
I had an interesting exchange in 2002 with the California "Judicial Council Task Force", which announced proposed model jury instructions for public comment. I requested and received a printed copy. I then made my comments and posted them, together with their proposal, online. Got a letter claiming copyright and demanding I take down the online version, which I did, but I also fired back that they were not a legal person who could assert a copyright, but a state agency subject to the California Open Records Act. They replied that they were not a state agency but a private group. I challenged that position, pointing out that they were operating using public funds and under a statute providing for public comment.

No resolution of the dispute was achieved, which is documented here (scroll down). But I came away with an impression of a California Supreme Court that was at best loose with the law.
7.25.2009 10:46pm
markm (mail):

hymie (mail):
Shouldn't we go back to the Constitution's copyright clause?

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

If only Congress or the Supreme Court would! Congress has made a mockery of "limited Times" by repeatedly extending copyright every time the first Mickey Mouse cartoon nears its expiration date, and the courts have refused to enforce the clause.

As for the explanatory prefatory clause, I expect even less. The analagous clause in the Second Amendment is probably a legal nullity since Heller. "To promote the Progress of Science and useful Arts" could be interpreted to require at least a rational basis that the copyright laws served that purpose - and I'd like to see someone trying to show that a movie studio's decision to invest in a movie hinges on whether it can collect royalties for 28, 50, or 100 years, or that an author's decision to write another book hinges on whether his grandchildren can fund their retirements with his royalties 70 years after his death!

But if the SC did that, they'd also have to revive the Miller decision's implication that "arms" in the 2nd Amendment includes at least the common individual weapons of the modern soldier. That is, just by passing an instant check that I'm not in the FBI's database as a felon, I should be able to buy a military-grade weapon[1] just like the M16 I trained with in boot camp 30 years ago - only new rather than worn out. (For those unfamiliar with guns or current gun laws: under the NFA of 1934, as amended in 1986, to buy a full-auto assault rifle or other military weapon, (1) I have to pay a $200 license fee, (2) the dealer has to store the weapon while I wait for an FBI background investigation that takes much longer than was required for my Top Secret clearance, and (3) the weapon has to be manufactured before 1986. Which makes it so expensive that the outrageously high license fee does not matter. The "assault weapon" kerfuffle does not concern military weapons, but rather semi-auto rifles, functioning similarly to many hunting rifles, but made to look like military rifles.)

[1] Far off topic here, I don't want to be able to acquire a machine gun or grenade launcher this easily - but the Constitution should have been changed by amendment, not by the lower courts grossly misreading Miller for seventy years, and then the Heller court overturning it while pretending not to, and just making up a self-defense definition of "arms".
7.26.2009 9:48am
David Schwartz (mail):
I'd like to see someone trying to show that a movie studio's decision to invest in a movie hinges on whether it can collect royalties for 28, 50, or 100 years, or that an author's decision to write another book hinges on whether his grandchildren can fund their retirements with his royalties 70 years after his death!
Arguably, preventing people from writing Star Wars fanfic for as long as possible promotes *useful* arts. Giving an author and his heirs ownership of a work for as long as possible requires other people to do something else.
7.26.2009 10:21am
markm (mail):
One thing that has been lost in the debates over copyright is that it was never intended to protect work unless it was done for publication.

"To promote the Progress of Science and useful Arts,"

reflects a social contract theory of patents and copyright. While the authors of the Constitution generally believed you have a natural right to your physical property, most of them saw no natural right to stop others from copying your work, other than by never revealing it to the public. So to encourage people to create and to publish their creations, the copyright clause allows Congress to create an exclusive right to profit from copying them for a limited time, after which they revert to the public domain. Like any contract, this is an exchange of items of value: the copyright is traded for the public availability of the work.

When the work was not for publication, the creator is not holding up their end of this deal and should not get copyright. But good luck getting the courts to enforce this!
7.26.2009 10:36am
Doug Hedenkamp:
"Submitting a legal brief and asking a judge to rule based on it is equivalent to submitting a model law and asking a legislature to pass it."

No, it's not. It just isn't. A model code is meant to be enacted as law. A brief is NEVER intended to be enacted into law, to become law, or to even be incorporated in the law.

A brief is more like a political speech, editorial or law review article, in that it merely attempts to persuade those who have the power to change (or at least authoritatively explain) the law. I notice that you distinguished the cases of auto repair manuals and architectural plans, but did not have any explanation as to why the other examples are entitled to copyright protection but briefs are not.

Furthermore, in Veeck, a model code only may be copied if, and to the extent that, it is actually enacted into law. If briefs really were the same as model codes, wouldn't only the winning brief lose its copyright?

"You make it a part of the public record and a part of the law-making process. That process must be open to the public and asserting copyright is simply incompatible."

It IS open to the public, and asserting a copyright is not incompatible with that. See the County of Suffolk case. A document can be available to the public from the courts and other public sources. That does not give private third parties the right to copy and sell it for profit.

In any event, I remain convinced that a fair reading of Veeck allows for copyrights in anything that is not actually enacted as law, and briefs are not enacted as law. Unless you have some specific language from Veeck or some other case to the contrary, your arguments are not going to be persuasive (to me, anyway).
7.26.2009 5:55pm
David Schwartz (mail):
I think you somewhat misunderstand my argument. The merger doctrine does not say that a work is not entitled to copyright. In fact, the work being fully deserving of copyright is a pre-requisite to merger applying.

Veeck did not say that the model codes could not by copyrighted or that the copyright was somehow lost. What it did say is that you cannot enforce your perfectly-valid copyright against a use for which nothing but that work would suffice.

Merger does not just apply to model codes enacted into law. Merger applied, for example, to the program at issue in Static Controls.

Suppose I write a limerick. It's completely entitled to copyright protection. Unless fair use applies, you cannot publish it in a collection of poems. Now suppose I make that limerick the password to my web site and charge $10 for the limerick to get into the web site. If you publish my limerick for the purpose of getting into the web site, I cannot accuse you of violating my copyright.

For the purpose of getting into my web site, only that exact limerick will do. The form and function are merged. No other work can serve that same purpose.

Why is the same not so of a legal brief? What other work will serve the same purpose, if the purpose is understanding the court's ruling?
7.27.2009 1:10am
Doug Hedenkamp:
A brief summary or paraphrasing of the work would ordinarily be more than sufficient to understand the Court's ruling. In fact, most rulings are written so that reading the briefs is not required AT ALL to understand the ruling. Obviously it would require a little more work to paraphrase or explain in your own words the arguments used in a brief, but that does not mean those arguments are susceptible to only one form of expression (which is what is required for merger to apply).

Moreover, neither the briefs nor the model codes are "functional" in the way that a password, the code in Static Controls, a lamp, (or any of the other items that are typically subject to the merger doctrine) are. The exact wording of a brief is not necessary to make anything functional happen in the real world. The model codes in Veeck were not subject to merger because they were necessary to perform some physical function, but because they merged with the law, which is uncopyrightable.

Veeck's merger analysis was two part. First, the court cited Banks and BOCA for the proposition that the law, as such, cannot be copyrighted, and must be free for all to copy. It then held that merger applies where a copyrighted model code is enacted into law, because courts routinely emphasize the importance of the precise wording of the law, so that the law cannot be expressed apart from its precise wording: "The codes are "facts" under copyright law. They are the unique, unalterable expression of the "idea" that constitutes local law. Courts routinely emphasize the significance of the precise wording of laws presented for interpretation." Thus, a person could not state what the enacted law is, except by quoting it verbatim (and that law is uncopyrightable): "Veeck could not express the enacted law in any other way."

The court concluded "When those codes are enacted into law, however, they become to that extent "the law" of the governmental entities and may be reproduced or distributed as "the law" of those jurisdictions." Because the uncopyrightable idea of the law is susceptible to only one form of expression, merger applies, and the expression is excluded from the Copyright Act.

Here, you are missing the first part of the analysis. When a brief is filed it isn't enacted into uncopyrightable law, and the expression in the brief doesn't "become" anything other than one private party's argument.

If your position is that the precise words used by a litigant in a particular appeal are uncopyrightable in the same way that the law itself is uncopyrightable, I don't think there is any authority to support that position. The reasons cited in Veeck for why the law itself is uncopyrightable just do not apply to a private party's arguments in an appeal. Not to mention, your merger argument begins to look a little circular.
7.27.2009 2:55pm

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