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.

To do this I plan to begin with the simplest archive I have access to: Google Scholar’s case-law database of all federal appeals court and Supreme Court opinions, along with as many state opinions as Google allows access to. This is, in a sense, an “objective” archive, since every decision (of the appropriate court level) is archived. On the surface, at least, archivists have no influence or the process, and their biases (unconscious or not) are not reflected in what is kept. This is especially true in Google’s archive, since keyword searching and automated linking joins cases together, instead of human editors who categorize and link cases (as has historically been the case with Westlaw and LexisNexis, along with their predecessor paper versions).

But if the archive itself is “unbiased,” nonetheless the materials that end up there are deeply embedded in societal values, biases, and beliefs. This is especially true because trial court opinions are much harder to find, and are archived haphazardly at best. As a result, only the cases or controversies that courts deem important enough to accept on appeal make it into the archive at all. Additionally, since the archive consists only of the final court decision, without briefs, trial testimony, etc., the voices of the participants are generally silenced in favor of the court’s view and perspective, which becomes the final word in the archive.

To pull from our readings, put in Richard Harvey Brown and Beth Davis-Brown’s terms, “relations of power and domination are often masked by or reduced to technically instrumental relations of efficiency; that is, moral and political questions are displaced to nonmoral and nonpolitical technical or professional discourse.” In this sense, archives maintained for ostensibly objective purposes may be more subtly misleading because what they hide is better masked, and what they reveal is more easily taken to be the complete truth, untainted by attempts to manipulate the narrative. A similar kind of problem to that described above is, I think, the case with this archival source: since “everything” is archived, there appears to be no bias, but in fact, these biases are simply masked behind the appearance of objectivity.

My intent is to seek out the, first, the earliest examples of a technology appearing in the archive, and then see how courts have dealt with it over time, particularly in relation to issues of privacy (including the Fourth Amendment or “search and seizure”). I intend also to look to legal treatises which provide information of the key — or most cited — cases, and see how the court conceptualizes the relation of the technology with privacy, and how this conceptualization may have changed over time. I wish to tease out, if possible, whether these changes are because of changing societal norms related to privacy as a concept or because technology (or the use of technology) has changed.

Image by The U.S. National Archives via Flickr

If possible, once I have dealt with the easily available appeals court and Supreme Court case law, I would like to expand my archival sources to include trial court information: lawyer’s briefs, trial transcripts, and so on. Additionally, I would like to examine Congressional testimony related to new technologies, and see how lawmakers may have conceptualized privacy. But these sources are be more difficult to access, especially in regards to older technologies, where sources are still print-based and stored in, for example, Washington, D.C.

Ultimately, I would like to get at attitudes, beliefs, and practices of the people “behind” the law and the cases, and not just speak in general terms about “societal values.” Specific cases can be excellent vehicles to achieve this, since each court case reflects a specific battle between specific opponents (plaintiffs and defendants). But getting access to their voices can be problematic, as I’ve indicated above, due to the erasure in the archive of many of the original materials (briefs, trial transcripts, depositions, etc.)

So we’ll see where this research approach takes me. Ideas, thoughts, etc. are appreciated!

Related articles

• Fourth Amendment Stunner: Judge Rules That Cell-Site Data Protected By Fourth Amendment Warrant Requirement (volokh.com)
• Corporate Persons Have Privacy Rights, Too (themoderatevoice.com)
• Editorial: An Illegal Search, by GPS (nytimes.com)

Meanwhile, the “big two”  —  LexisNexis and Westlaw  —  are not standing still. Both are intending to release new interfaces to their signature products in the next year, and both will focus on eliminating complex search query requirements in favor of Google-like natural language searching and “artificial intelligence” based sorting of results: “Both companies claim to be creating a legal research experience that will mimic the ease of use their customers have come to expect from the leading Internet search engine, Google,” wrote the Jill Schachner Chanen in the ABA Journal on Jan. 24th.

This shift in search strategies can’t come soon enough for me. Even when I was routinely using Lexis and Westlaw, I frequently found an initial Google search  —  even without the new Google Scholar features  —  would do a far better job and getting me oriented on a case topic than anything Lexis or Westlaw could provide. Once I had some specific search terms, the big two would let me drill down, pull up case histories and related cases, and seek legal background information in treatises. But that initial searching was much easier and productive  —  not to mention cheaper!  —  using Google.

Improving this aspect might help keep customers. Not doing it will certainly lose business, at least.

I don’t think I could, in good conscience, charge a client for legal research done entirely in Lexis or Westlaw at this point, without first starting out with free (or lower cost, at least) options like Google Scholar or Fastcase. The cost difference is staggering, and I would feel unethical to charge a client for the cost of exploratory research using the big two (but not for using them to Shephardize, for example, for which a paid service is simply required).

Personally, I am far more excited by Google Scholar than by these potential changes by the big two, but any innovation in this space would be welcome.

For more, see:

• Exclusive: Inside the new Westlaw, Lexis & Bloomberg Platform (ABA Journal)
• On the Lexis and Westlaw of the (Very) Near Future (Wall Street Journal Law Blog)

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.

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Greg Lambert at 3 Geeks and a Law Blog writes:

Generally, the discussion has tended to lean toward the idea that online research will trump print research due to the convenience of the format and how the upcoming generation will prefer online over print media.

via 3 Geeks and a Law Blog: Legal Research Metrics & Ethics: $499 a Year Or $825 an Hour?.

But Lambert points out that many researchers have discovered that in certain situations and with certain kinds of material, even young lawyers are discovering that online access – at least, as delivered by the current providers – just doesn’t work as well.

Cost is a major element of this: online access to a treatise (a compendium of legal research, opinion, etc. that’s an extremely useful resource for understanding an area of the law before diving into more specifics) can run to around $825 an hour, while the print version of the same treatise costs $499 per year (or less, if you don’t mind out-of-date treatises). But it’s more than simply the straight-up cost of access – print research can be more effective and time-efficient for many tasks:

Then along comes a recession and all of a sudden it becomes apparent that online research is “expensive” and for some forms of research – specifically treatise research – online research doesn’t work very well. Take a poll at one of the practice group meetings you attend and ask the attorneys point blank: “When researching in treatises, do you find you are more efficient using the print version of a treatise, or the online version of a treatise?” I’d almost give you 2 to 1 odds that the print version will be the preferred method.

via 3 Geeks and a Law Blog: Legal Research Metrics & Ethics: $499 a Year Or $825 an Hour?

Myself, I find that online case-law research so much more effective than the print alternative that I strongly support eliminating the print versions of decisions completely. There is simply no point in filling libraries with dead trees holding out-of-date case law that’s difficult and time-consuming to cross-reference.

However, treatises are a different story. The longer, more in-depth format, combined the the benefits of browsing vs. searching when it comes to broad areas of the law, make the print versions far more attractive than their current online counterparts.

This is essentially the same reason why I do not read books on my computer screen: it is uncomfortable and limiting.

The Kindle and other e-readers substantially reduce this argument, however, and that is exactly what I see for the future of treatises. The benefits of “online” access (especially linking) simply do not outweigh the per-hour charges or the inefficiency of search vs. browse. Electronic readers, with one-time charges like print, add effective electronic searching while preserving much (but not all – flipping back and forth between sections, or having multiple volumes open at once are still not possible) help bridge this gap.

My prediction: treatises will move to electronic media, and “online” access via LexisNexis or Westlaw will be reduced to quick scans and database searches, with researchers then taking it “offline” to their Kindle. (Of course, the “online” vs. “offline” distinction is inaccurate, since the Kindle has built-in wireless networking – so we need to find a better term to capture the distinction.)

Image by jmtimages via Flickr

According to the Advocate’s Studio, a recent change to the Texas Rule of Appellate Procedure gives “memorandum” opinions full precedential value – but those opinions are currently only accessible through the very expensive Westlaw or LexisNexis:

Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the Texas legislature insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.

The general trend, building on similar approaches in scientific publishing as well as open-source software, has been to open up access to legal opinions. The goal is to make the law – an absolutely fundamental part of society – more accessible to the public. It is, to borrow from a rather different context, rather like allowing people to read the Bible in their own language, rather than requiring to go to a priest trained in Latin.

Hopefully, the Texas example is the exception to the trend away from proprietary lock-in, and not an indication that we are moving backwards.

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