Kevin,
You are touching on an interesting point. Is there an exception to US copyright law that allows the copying of copyrighted materials to be submitted to the court in the first place? Or do the litigants (or their attorneys) need to get the permission of the copyright holder before making a copy of the material to submit to the court. There is no express "litigation exception" under US law (fair use or otherwise). If I recall correctly, there was either legislation passed or a court case decided in Canada within the past two years providing such a litigation exception. I also think there is such an exception in a number of other countries, but none, to my knowledge, in the US.
Any other thoughts from other list participants?
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Grierson, Kevin
Sent: Monday, August 22, 2005 4:30 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Briefs On Westlaw/Lexis
I am curious as to what you mean by a "public record." In "The Wind Done Gone" copyright infringement case, I'm sure that the entire text of the purported infringing work was submitted as an exhibit and thus made part of the "public record." Yet I doubt that anyone would consider that the submission of the text of that novel renders it a "public document," entitled to be freely copied by anyone (i.e. in the public domain).
Let's take Westlaw's program to the next logical step--suppose, instead of sorting briefs by case, they actually broke the briefs up by point of law addressed and sold the pieces separately. Would that be OK?
I submit that documents submitted to a court, whether pleadings or exhibits, retain their copyright and are subject to the fair use provisions of the Copyright Act. They can be examined, and relevant portions copied for uses permitted by the fair use doctrine, but they are not submitted wholesale to the public domain and freely copyable for any purpose.
My two cents,
Kevin
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of JFN
Sent: Monday, August 22, 2005 1:00 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Briefs On Westlaw/Lexis
It's been a long time, but I don't remember anything in the Princeton case holding that copying by the students would be fair use, but that they could not hire someone to do it for them. I would not emphasize fair use in my defense of Westlaw -- to the extent I relied on fair use, I would the fourth factor and contrast the availability of a licensing scheme for Princeton Univ. Press reprints against the lack of an alternative market for lawyers' used briefs -- but the fact that the students are "allowed" to make their own copies is because Princeton isn't going to bother suing them, and doesn't mean that it's fair use. The main difference between Princeton Univ. Press and a lawyer filing a brief is that the public is entitled to copy public records, and logically entitled to hire someone to do it for them.
John Noble
At 3:35 PM -0400 8/19/05, Roland Cole wrote:
John et al.
I read the Princeton University Press case as directly contrary to this one statement of John's. The fact that A is allowed to copy something does NOT mean that B can do it for A, with or without a payment to B.
Now, if court pleadings are deemed "pledged to the public domain," the issue is moot. If they are deemed "licensed for copying and distribution" by the act of filing itself, then the question is the scope of the license. It could be held (as has been in some contexts) that the assumed license (and/or "fair use") is for the "scholar" to make one copy for further study. That understanding would NOT extend to selling copies to 3rd parties.
On the other hand, much of the US works on the "do it until told no" principle, so I suspect West will provide this service until and unless they lose a court case over it.
As John said elsewhere, the courts, maybe all the way to the Supreme Court, will have the final word.
Roland J. Cole, J.D., Ph.D.
Executive Director
Software Patent Institute
5315 Washington Blvd
INDIANAPOLIS IN 46220-3062
317-727-8940; cole[_at_]spi.org; www.spi.org
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of JFN
Sent: Thursday, August 18, 2005 3:41 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Briefs On Westlaw/Lexis
.... Assuming that the public has a right to inspect and copy court files, I can't see an infringement claim based on Westlaw providing that service for a fee.
...
John Noble
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