Re: Re: Re: Copyright Ownership of Legal Briefs

It would seem to me the issue of westlaw could be averted, if someone would just create a open source server and allow self post all briefs from all courts?
why would such an idea be impossible?
sterling

On Thu, 10 Feb 2005, John wrote:

> 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
>
>
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Received on Wed Feb 16 2005 - 03:05:15 GMT