Fw: Re: Copyright Ownership of Legal Briefs

Re: [CNI-(C)] Re: Copyright Ownership of Legal BriefsWe recently had a presentation from the county law librarian. When asked whether Massachusetts Supreme Judicial Court briefs were still available on microfiche, the librarian said that the Social Law Library was no longer allowed to publish the briefs (or no longer had the contract, I'm not sure which), that West did instead. I don't know who has the authority to make this kind of decision, but it is the Office of Reporter of Decisions of the Supreme Judicial Court of Massachusetts (est. 1804) who is the official reporter of the court's decisions. Whether it also deals with the briefs, too, I don't know. Perhaps there's someone else on the list who knows more accurately what happened.

If I have recalled any of this incorrectly, my apologies to the librarian making the presentation, the Social Law Library, the Massachusetts Supreme Judicial Court, West, and anyone else who might be offended.

Good question, too. I hadn't thought about it before, but you're right, no matter what your opinion is on whether West's republication of the briefs is lawful, it seems that "Massachusetts" (whatever office it might be) would not have the authority to grant West exclusive right of publication for a copyright it does not own. And, given the fairly universal agreement (as universal as any agreement can be on this list serve) that there is some right of the public to view the documents (can we stretch it to agreement that they may copy it too?), the Social Law Library should be able to do what West is doing and couldn't have been forbidden from publishing.

I have found the reactions to the issue interesting: some people are on the "what the heck, it's a favor to all of us" side of the fence, also deciding that its not an infringement, and some are on the "how dare they" side of the fence, believing it is an infringement. I see the legal conclusions as more a reflection of how proprietary we do or do not feel about our own work than anything else. For myself, when I heard about this my reaction was that it didn't bother me that the briefs were available for the cost of printing from a fiche reader, but that I didn't like the thought of West making money off of my copyright. The "free riding" aspect bothered me, but I couldn't find a substantial legal distinction to justify my reaction. The discussion on this list has reminded me of how much our sensibilities might affect our legal advice. Thank you all for your responses.

Pam Chestek

• Original Message ----- From: Laura Quilter To: CNI-COPYRIGHT -- Copyright & Intellectual Property Cc: Pam Chestek (chestek.com) Sent: Thursday, February 10, 2005 6:46 PM Subject: Re: [CNI-(C)] Re: Copyright Ownership of Legal Briefs

  At 11:35 AM -0500 2005/02/04, Pam Chestek \(chestek.com\) wrote:     Amy,

    If there's an implied license by public filing, but implied licenses are construed narrowly, wouldn't it be outside of the scope of the license to do anything except provide an electronic "photocopy" of the document? That's all I would expect someone going to the courthouse to be allowed to do, not convert it to a text-based form. It's this particular change in character that bothers me the most (maybe because it takes the out the greatest point of friction that would otherwise impede copyright infirngement). Westlaw's search function doesn't justify it; I don't think making a document searchable means that the text-based form must be made available to the end user.

    It's the "disseminating it widely as a profit-making organization" that provoked my question. I just learned yesterday (if I recall this all correctly, my apologies to the librarian if I didn't) that the briefs in Massachusetts Supreme Judicial Court cases used to be available at law libraries on microfiche. Now, though, newer briefs are only available from Westlaw and the non-profit law library that used to produce the fiches is no longer permitted to do so. What used to be offered at only the cost of a copy is now a profit center for West.

  What was the nonprofit law library that used to produce those fiches, and who is "no longer permitt[ing]" them to do so?

  My 2c on the substantive issues without getting into fair use:

1. copyright on legal language in briefs would be (relatively) thin due to the merger doctrine. Thinner certainly than in the typical law review article. The brief is intended to make a legal argument; that legal argument will certainly be dependent on the exact language used in many respects. Thinness is sliding scale, not binary, of course, so a brief is probably more protected than, say, draft statutory language submitted by a lawyer/lobbyist. Appellate briefs dealing primarily with legal matters might have different scope of copyright protection than trial briefs dealing with legal and factual matters. But certainly, for any given brief, I don't think it would always or even often be an easy task to extract the protectable expression from the nonprotectable ideas embodied in the expression.
2. I see at least two implied licenses: a) One for public dissemination via the public record, based on submission to the public record. Indeed, courts' increasingly require electronic submissions in addition to paper, to facilitate that distribution (via the court websites and online fed docket system, for instance). How could the government reasonably discriminate b/w for-profit gatherer/disseminators and non-profits? ... Also, as a side note, submission of private records to the government for various purposes allows the record-holders to prevent access for privacy, trade secret, etc. But without such a compelling interest on the other side how would a copyright in records submitted meet the requirements of various sunshine acts, FOIA, and open government? maybe you could have a limited right to not reproduce for profit, and then west/lexis would have to minimize charges for print/download of briefs but could still charge for time.
3. And another license for reproduction & derivation by the court. Consider that attorneys would almost always be very, very happy if large portions of their briefs were incorporated wholesale into the judicial opinion, or at the very least adapted as a derivative work.
4. If you're seriously worried about the copyright in briefs, motions, pleadings, and the like, then you certainly have to be worried about the ownership of the copyright. While the copyright may initially inhere in the author(s) [the attorneys? the law firms? the collaborative attorneys?] the attorneys/firms typically return all documents to the client at close of representation, and client gets to take that work with them, reproduce it, etc. So the client clearly has at least an implied nonexclusive license to reproduce / derive the work.

  This notion (copyrightability of briefs or other legal work product) seems to have periodically re-asserted itself in the legal literature and then dies down, I imagine, because of its manifest impracticalities. I don't have the cites on hand, but you can find them (in lexis or westlaw) with the appropriate search. Nevertheless I'm sure someday, somewhere, some enterprising attorney will try to make a claim, and I only hope they get slapped down quickly, since forays into propertizing attorney work product, if successful, will just lead to wretchedly arbitrary and ridiculous litigation.

  The real issue that's of concern is why the entity that used to produce public archives of the documents has stopped. Were they really forbidden? And how? Or was it just that they no longer found it profitable to provide the service?

  Humph. If people are really agitated about the appropriation of individuals' work product by for-profit entities, then why don't they agitate about the required assignment of article copyrights to journals and the subsequent licensing (for how much? free, i bet) to westlaw / lexis? As in other academic fields there's just no reason why researchers should be signing away the exclusive rights to their works and inhibiting dissemination except thru for-profit centers that generate no profits for the authors, and probably not their institutions or even the journals.

  Laura Quilter Received on Fri Feb 11 2005 - 21:30:30 GMT