Revisiting copyright claims against Westlaw and LexisNexis: Does selling access to court-filed attorney briefs violate copyright law? News & Analysis

Please note that this post is from 2012. Evaluate with care and in light of later events.

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.