Re: Re: Briefs for Sale

The nature of the work is both creative (more protection) and utilitarian (less protection).
Historically, attorneys did not put a copyright notice on their briefs, and did not publish them and so they were subject to copyright, if at all, under state copyright. Or they were in the public domain if they were deemed published when filed. I've never looked that issue up.

So then you have inertia -- never was an issue before and no one really thought about it much.

The market value of a brief is pretty low -- almost nothing except in the particular case. So the incentive to stop infringement is pretty low.

The marketing value of greater distribution of a brief with your name on it may not be great, but may get you some more business.

Much of the stuff in a brief is either boiler plate (standard for summary judgment or standard of review) or close to it and so has very thin protection anyway, and the rest is pretty much case specific and so not of a lot of value in a lot of other cases.

The important thing in briefs in general are the ideas. And those are not protectible. So the value of protecting the expression of those ideas is limited. But sometimes the expression itself is superb -- and that is protected more strongly.

I suspect that most people get briefs not to use the expression, but to use the ideas. So the infringement is in some sense a technical one -- people copy the brief to get at the ideas, not really to have a copy of the brief per se.

Anyway, I pretty much agree with Mr. Noble's analysis.

I would hope that for the most part we in the profession take a professional approach and avoid much literal copying or outright plagiarism and instead use them for ideas and do not try to bottle up those ideas.

Interesting question -- what if a brief had a copyright notice on it that licensed some reproduction, but not for electronic media? Would this make the case stronger against West or Lexis?

Steve

On Jun 26, 2006, at 4:45 PM, J. Noble wrote:

> Check the archives. We exhausted this subject a couple of months
> ago. Short answer is pick one:
>
> 1) Fair use -- nature of the use (transformative) and affect on the
> potential market (none) outweigh nature of the work (creative) and
> amount copied (all of it).
>
> 2) An implied license arises when author files it in public record,
> knowing it is subject to statutory right to inspect and copy;
> Westlaw is a glorified paralegal, getting $10/hr to go down to the
> courthouse and copy the file for you.
>
> 3) It's copyright infringement, but lawyers don't care because they
> can't sell the same brief twice anyway.
>
> 4) Westlaw has interactive service provider immunity under the
> DMCA. Copyright your brief; demand they they take it down; and see
> if they agree.
>
> John Noble
>
> At 5:35 PM -0400 6/23/06, Nick Zales wrote:
>> If this question is in some archive, I hope somebody would point
>> me to the answer. I would like to know how West Group, and Lexis
>> if they are doing it, is able to simply copy entire briefs filed
>> in court and then sell access to them over the Internet? Fair use?
>> Public Domain? These briefs seem to me to be no different than
>> books in a public library. This is profiting off of others work
>> and amounts to stealing in my way of thinking. Any ideas on this
>> or is West simply so big it can get anyway with anything?
>>
>> Nick Zales
>> Milwaukee, WI
>
>
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-- 
Prof. Steven D. Jamar                                     vox:   
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