Re: copyright of briefs?

Of course this was not a live issue until at least the 1976 act. Then it really still didn't matter until the Berne-compliance amendments which eliminated the need to claim copyright by giving notice.

It seems that this may fall under the same rule as the one relating to who owns the copyright in faculty-generated literature - clearly the act says one thing, but the courts have said the opposite. Maybe the same is true here for the same reason - the long standing practice has not been explicitly overturned by Congress.

But it would seem to me that the author of a brief has a copyright in it, but that it would be a very thin one - essentially one against republishing for profit. Everything else would be fair use. To understand a case I may want the briefs - and this would be personal use copying and should be allowed.

The harder question is whether this public interest and the utility of briefs in understanding cases or critiquing cases is so high that wide dissemination by publication of the briefs is itself fair use or grounds to say there is no copyright.

I also wonder about the government documents exception - who owns the brief when it is filed? So might not the brief be in the same status as federal court opinions- not copyrightable?

If I were a publisher of briefs, I would get permission.

Cheers,
Steven D. Jamar
Assoc. Prof. & Dir. LRW Program
Howard University School of Law
sjamar[_at_]law.howard.edu or sjamar[_at_]aol.com

"Those who say it can't be done should not interrupt those who are busy doing it." Chinese Proverb Received on Wed Apr 10 1996 - 21:19:35 GMT