Re: Re: Briefs On Westlaw/Lexis

At 3:35 PM -0400 8/19/05, david dailey wrote:
>At 04:40 PM 8/18/2005, John Noble wrote:
>
>>Still, I suspect they would remove your brief if you registered the
>>copyright and made a demand under the DMCA take-down provisions
>>because they would want to be able to fall back on the safe harbor
>>for interactive service providers if push came to shove.
>
>
>I had always thought of DMCA's ISP provisions as intending to
>protect "access providers" (like ATTWorldNet and Verizon and various
>".net's"), rather than "content-providers" (like Westlaw).
>
>David Dailey

The contours of "interactive service provider" and "content provider" are unclear and in flux, but Westlaw is pretty clearly an interactive service provider of a sort, and the term has been applied to websites that exercise editorial control over content provided by third parties. At the same time, Westlaw really isn't a "content provider" -- all of the content is provided by third parties. In this case, the "content provider," at the first remove, is the court clerk's office that provided the public record; and at the second remove, the attorney who filed the brief. Westlaw can take the position that they include briefs in the database on the assumption that the clerk's office has a license (implied or by law) to authorize the inspection and copying of the public record, even if it includes what might otherwise be protected works; and that the attorneys/authors presumably file their briefs with full knowledge that they are in the public record, and that they have granted at least tacit authority for public inspection and copying. It's like the law review articles that are included on Westlaw without ascertaining whether the law review publisher was authorized to sublicense the electronic distribution rights. Westlaw can assume that the content-provider (whether court clerk or law review publisher) has authority to authorize electronic access and distribution, until the author tells them it's infringing. The law review author might have a case without the DMCA safe harbor and without evidence of an implied license (but what law review author doesn't know that his published article is going to end up on Westlaw?). However, I'm fairly convinced that a lawyer who files a brief in court is not just granting an implied license, but is filing subject to a de jure license pursuant to the applicable state or federal law regarding access to public records for inspection and copying. Still, Westlaw has better things to do, and it would have to be a pretty damn popular brief to justify the cost of litigating the issue; so I'm guessing that if you want them to remove your brief all you have to do is ask; and if you don't ask before you sue, they'll move to dismiss for failure to state a claim under the DMCA safe harbor provision, withal.

John Noble Received on Sat Aug 20 2005 - 02:22:30 GMT