Re: Re: Re: Copyright Ownership of Legal Briefs

At 3:00 PM -0500 2/9/05, Mike Oliver wrote:
>It still strikes me as wrong that Westlaw charges its subscribers
>for the right to view the briefs.

It costs Westlaw money to provide access to court files. When you say it strikes you as "wrong" to charge subscribers, I'm not sure whether you mean they should do it for free, or not do it at all.

In the old days, you would go to the courthouse (or send a paralegal), and the clerk's office would charge you between .25 and 1.00 per page to make a copy from the file. Westlaw saves you a trip to the courthouse (which might include cross-country airfare), and gives you a copy of a public record for a nominal fee. I'm not sure how you distinguish between Westlaw and the paralegal who gets paid more money for the same thing.

On the revocability of the implied license: It was me who suggested that most lawyers want their briefs publicized, or at least have no objection. I would add that lawyers looking for access to court records consider Westlaw a godsend, and are delighted to trade access to their briefs for access to court records generally. So while you are correct that any implied license is revocable, what is significant is that nobody wants to revoke it.

On fair use: You argue that fair use might cover research, news reporting and historical archiving, etc., but not electronic distribution for a fee. The problem is that all of the acknowledged fair uses are facilitated by electronic access, and in many cases would be impossible (or prohibitively expensive) without electronic access. Westlaw is selling a research tool designed to make fair use possible and affordable.

John Noble

At 3:00 PM -0500 2/9/05, Mike Oliver wrote:
>I have been surprised to read the responses in this thread
>apparently accepting (or arguing) a broad implied license or some
>other theory on which West may be said to have some right to copy
>and electronically distribute for a fee a brief not authored by a
>judge or other government employee. Even assuming there is such an
>implied license, case law establishes that an implied license given
>without consideration is revocable by the licensor. So, any brief
>writer should be entitled to revoke the implied license. Perhaps
>Westlaw is counting on the proposition another poster mentioned that
>most lawyers would want their briefs publicized (I note that it is
>not clear that the lawyer would own the copyright in the brief - it
>is possible that the attorney client relationship - which is a
>fiduciary obligation - implies an obligation to assign the copyright
>to the client upon payment of fees). It still strikes me as wrong
>that Westlaw charges its subscribers for the right to view the
>briefs.
>
>I also do not see fair use in connection with westlaw's specific
>activities in respect of the briefs. A case somewhat on point is
>Bond v Blum, (4th Cir 2003)
>http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=case&no=021139P
>In that case, a book authored by one of the parties to a custody
>dispute was admitted into evidence (and copied) to establish that
>this party was unfit to have custody of a minor child. The book was
>allegedly an autobiography of how that party got away with killing
>his father. The court held that copying of the manuscript and
>putting it into evidence in the case was a fair use. It was careful
>not to extend that fair use beyond that particular proceeding.
>
>I can envision many fair uses that would apply to briefs filed in
>court proceedings - scholarly research, news reporting, non profit
>historical archiving - I just cannot include among those the right
>to electronically distribute the work for a fee. Having said that,
>few briefs are ever registered with the copyright office (assuming
>for the moment registration would be required because the work is
>"published"), and so I imagine the risk of damages is low.
>
>- Mike Oliver
>Bowie|Jensen, LLC
Received on Fri Feb 11 2005 - 00:10:00 GMT