Brief from Planned Parenthood for Roe v. Wade

In 2009, I wrote about a California lawsuit against Westlaw and LexisNexis for violating copyright law by selling legal briefs of attorneys without their permission. I never heard what happened to that lawsuit, but now there’s another one, this time in New York, alleging similar infringements. The Wall Street Journal’s Law Blog writes:

Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them” — namely publicly filed briefs, motions and other legal documents.
– Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis

In 2009, I thought that such a lawsuit had potential merit, although I maintained then — and continue to believe — that the public benefits more from allowing this kind of access. On the other hand, I remain concerned that such access is only available for a very high fee through LexisNexis and Westlaw. I would rather see public access to briefs filed in public courts. I wrote, “We are all better off if we can read them.”

Of course, such a “public good” standard is not the test for fair use, as American University’s IP blog points out when it goes through the actual four-factor test :

According to UCLA law professor Eugene Volokh the plaintiffs actually have a fairly decent argument because filing the briefs in court “doesn’t waive any copyright” which turns this into a murky fair use question with “no clear answer.” Fair use protection is detailed in Title 17 section 107 of the U.S. Code and stipulates that certain uses of protected materials are not infringement. These fair uses include criticism, reporting, and education. Determining fair use occurs by applying a four factor test the code provides.
– Goodbye to Online Research? Class Action Complaint Filed Against LexisNexis and Westlaw for Copyright Infringement

To summarize: educational use is best, but commercial gain is OK if it’s generally for the public good; creative works receive the highest protection, but briefs are at least partly creative in nature; the reselling of the full brief cuts against Westlaw and LexisNexis; and, finally, whether the reuse impacts the original market for the product — it’s likely, but arguable, whether that is true in this instance.

Remember that copyright does not exist to reward effort, but rather as an incentive to create original works, as Techdirt points out:

The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It’s simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work — and there’s clearly no need for copyright in this instance.
– Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They’re Infringing On Copyrights Of Legal Filings Themselves

Hopefully we’ll hear more about where this lawsuit ends up.

Since its codification in Britain in 1710, the length of copyright protection has continued to be extended, from an initial 14 years to today’s 70-120 or more years.

Before 1790

In Europe in the early fifteenth and sixteenth centuries, as printing began to spread, copyright only existed as a monopoly granted by royalty to specific printers to cover specific works. It was not a general rule of law that covered all written work, much less all printed texts. In England in the seventeenth century, the Stationer’s Company — a private organization, albeit one with government recognition — gained the absolute right to manage and grant the right to copy printed texts. The first recognizably modern version of copyright in England, and the one to which modern American copyright can trace its roots back, was the Statute of Anne, passed by the British Parliament in 1710.

In early modern France, royal decrees before the eighteenth century established the duration of copyright to last in perpetuity, at least until rights were sold to a publisher (which would then limit the duration). Remnants of this focus on authors can still be seen in the sense of the “droit d’autor” and artistic “moral rights.” Post-Revolution, rights were limited to the lifetime of an author plus 5-10 years. The notion of literature as public property at heart, but granted to people for a length of time, was entrenched in the system.

As of 1710, the Act granted monopoly rights to publishers for the period of 14 years, for the express purpose of encouraging “learned men to compose and write useful books.” This Act effectively created the legal category of the “public domain,” since once the 14 years expired, texts could be copied by anyone and belonged to no one (or to the public at large). The Lords confirmed the limited duration of copyright in Donaldson v. Beckett in 1774, a decision inherited in the United States as part of our common law (even though the Statute of Anne itself did not apply to the colonies).

1790: 28 years

In 1790 in the United States, the first Copyright Act of 1790 — closely modeled on the Statute of Anne — created a copyright term of 14 years from date of recording, along with the potential for renewal by surviving authors for another 14 years. Total protection, then, consisted of a maximum of 28 years.

1831: 42 years

In 1831, a revision to the Act extended the initial potential copyright period to 28 years, with the potential to extend it for another 14. The maximum thus became 42 years.

1909: 56 years

Image via Wikipedia

In 1909, Congress reformed copyright again, changing the duration to be an initial 28 years, followed by a possible extension of another 28. Total potential protection, then, was now 56 years.

1976: life + 50 or 75 years

The 1976 revision was, arguably, the most radical change to the law in 200 years. Copyright was changed to be the lifetime of an author plus 50 years, with works for hire (those that were commissioned or were produced at the behest of a corporation) protected for a total of 75 years. Fair use was codified specifically in statutory law at this time too, although the specifics of application were left to the courts. Much of the goal of this Act was to bring the United States in line with the rest of the world.

1998: life + 70 or 120/95 years

In 1998, the Copyright Term Extension Act extended the length copyright again, to the life of the author plus 70 years, or, when considering corporate “authors,” 120 years after creation or 95 years after publication, whichever is earlier. Additionally, this Act also covered works created in 1923 or later, applying the new durations to those works.

Related articles

• Copyright and Fair Use – Information & Library Services (umuc.edu)
• You do not get an “A for effort” with copyright

Who better than those snarky peeps at Woot to call them on the implications of such a scheme?

So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post, which, by the way, we worked very very hard to create.

via Woot® : One Day, One Deal™.

One might argue, I suppose, that somehow the material produced by “the media” is different from what the rest of us produce. While certainly such a scheme could be implemented, it hardly seems fair. More importantly at the moment, of course, copyright law makes no such distinction (even if some have attempted to embrace/extend the so-called “hot news” doctrine to create the potential basis for such a distinction).

Related articles by Zemanta

• Woot Asks AP To Pay Up For Quoting Woot Blog Post Without Paying (techdirt.com)

Legal Research Plus brought this to my attention, originally from the Daily Journal:

. . . Several months ago, . . .  Irvine attorney [Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee. . . .

via LexisNexis and Westlaw violating copyright? « Legal Research Plus.

This idea  —  that the courts are turning over attorney work product to for-fee services, which then resell them (or merely make them available?) to customers  —  is an intriguing one. Do briefs filed with the court become public domain? Or do the original author-attorneys retain copyright? Even if the writer (or their employer in some cases, since briefs are likely works-for-hire) retains copyright, does fair use apply to Lexis/Westlaw’s actions? As I said, an interesting idea.

Personally, from a public-policy perspective, I would be inclined to favor allowing LexisNexis, Westlaw, and anyone else to provide access to court-filed attorney briefs. I am bothered a bit about the resale factor  —  but only because there does not seem to be a free (as in without cost) option for accessing the briefs. I do not believe the public benefits from applying a copyright approach that denies access to the briefs. We are all better off if we can read them.

But like other situations in which I advocate “open access,” there should be more public access than simply LexisNexis and Westlaw’s extremely expensive service.

I’ll be interested to see if this issue goes anywhere in California, or if it just disappears.

Related articles by Zemanta

• Are Westlaw and LexisNexis simply selling “free” information? (inpropriapersona.com)
• 10 Alternative Legal Research Sites (inpropriapersona.com)

In the ringtone case [part of U.S. v. ASCAP], ASCAP’s argument is the mirror image of the NMPA’s on interactive streams: It contends that ringtones involve a public performance when they’re first delivered to a cellphone, and again when the phone rings. My favorite part of ASCAP’s latest brief is when it explains what makes a ringtone a public performance: “It need only be ‘capable’ of being performed to the public; whether the ringtone is set to play, and indeed whether anyone hears it, is of no moment” (emphasis added).

Some folks may pick ringtones precisely because the public will hear and admire them, just as some people carry boom boxes in public or sing as they shop. But as the advocacy groups note, copyright law provides a specific exemption from infringement claims for performances that aren’t transmissions to the public, seek no commercial advantage and collect no compensation. Does that ring a bell?

via A big week for copyrights and piracy | Technology | Los Angeles Times.

The Electronic Frontier Foundation adds its opinion on the matter, which seems right on to me:

Fortunately for consumers, ASCAP’s theory is foreclosed by the Sony Betamax ruling, where the Supreme Court held that because it’s a fair use for you to time-shift TV, it’s also perfectly legal for Sony to sell you a VCR to do it. Sony did not have to run a second fair use gauntlet for its commercial VCR-selling business.

In short, if there’s no infringement liability for the customer, there can be no secondary liability for the carriers. (ASCAP also has a theory that the carriers are direct infringers because they set up the system that causes phones to ring in public, but that theory is pretty handily wiped out by the recent Cablevision ruling, where the court found that setting up a “remote DVR” service doesn’t make you a direct infringer when your customers use it.)

Or, put another way, if it’s noninfringing for you, it’s also noninfringing for a technology company to provide you with the means to do it.

via ASCAP Wants To Be Paid When Your Phone Rings.

Related articles by Zemanta

• Lawyers claim ringtones are public performance (theregister.co.uk)
• Ringing up cash: ASCAP suing AT&T for ringtone “performance” (arstechnica.com)

• “I am not making money on it; it’s fair use.”
• “They should be happy with the free press.”
• “I’m making them money, it’s fair use.”
• “It didn’t have a copyright notice on it; it’s fair use.”

via Fair Use FAQ | BlawgIT.

Recommended reading for anyone who cites, quotes, or reuses other’s work – which is pretty much everyone these days.

Related articles by Zemanta

• Remix Culture: Making Fair Use Your Friend (bravenewfilms.org)
• Plagiarism and Fair Use (hyperorg.com)

Latoicha Givens writes:

In the case of RIAA vs. Joel Tenenbaum, the court is currently accepting an argument that peer to peer file sharing is a Fair Use exception to Copyright Infringement Laws. Essentially, the argument is that file sharing is not commercial use and therefore not copyright infringement. In lay terms, this means that as long as individual consumers are sharing files with friends for personal enjoyment and not a monetary fee, then copyright infringement does not exist and file-sharing is not a crime.

via IP LAW 101: File Sharing & Fair Use: What does it mean for Consumers.

She goes through the four main “fair use” factors considered by judges. Stanford’s library has an overview of copyright and fair use which states the four as:

1. 1. the purpose and character of your use
2. 2. the nature of the copyrighted work
3. 3. the amount and substantiality of the portion taken, and
4. 4. the effect of the use upon the potential market.

via Measuring Fair Use: The Four Factors.

She points out that, if this argument is accepted, then at least limited file sharing would become legal:

If Tennebaum’s argument is successful, peer to peer file sharing may be considered legal and enjoy the same treatment as copying of television or cable shows for personal enjoyment. Currently, consumers can copy or record television or cable shows in their home as long as the recording is done for personal enjoyment and the recording is not re-broadcast or viewed by consumers for a fee.

(Of course, if this were to occur, the lobbysts would be hard at work getting Congress to explictely eliminate such protection.)

Keep in mind, too, that although such an outcome might make file sharing acceptable in certain contexts, this would only be from the individual consumer level. Any ads, subscriptions might well take it out of this context. In other words, any money making might well doom a defendant’s fair use argument.

I suspect that even large-scale file sharing without commercial intent might go to item #4 above, too, making Napster or Bittorrent still illegal. Still, it would be an interesting outcome, and one that might well be a good outcome for consumers – and possibly even beneficial to labels, if it helps to advertise their work in non-commercial contexts.

Related articles by Zemanta

• Does Copyright Foster or Hinder Innovation? (inpropriapersona.com)
• Copyright as Antidote to DRM (inpropriapersona.com)
• Libraries and Fair Use (inpropriapersona.com)
• The Thomas file-sharing retrial (inpropriapersona.com)