On 4/10/96, Steven D. Jamar <sjamar[_at_]aol.com> wrote:
>
> 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.
I am unwilling to concede based on the earlier discussion about faculty ownership of their works that courts have really gone that far in ignoring the obvious wording of the law. And I am unaware of any serious argument that Congress would need to explicitly overturn something when the language is that clear.
In other words, I am a believer in Universities and attornies (or more usually their statutory employers) owning their works. However, I am talking solely of legal ownership of the copyright. Implied license, estoppel, fair use, etc. are different stories.
> 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.
I see no reason to belive that the fair use analysis would be really that much different than usual. Rather, I would see the better argument being that of implied license and possibly estoppel. However, it should be remembered that the primary purpose of filing a brief is not to enhance one's reputation with the legal community, but rather to make a point with a court.
> 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 guess I take back my previous point of fair use. Yes, I agree that the public interest in understanding a case makes a fairly strong fair use argument.
However, I think that you have to separate these uses from others, such as the common practice of attorneys of rampant plagerism.
> 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?
No, I wouldn't think so. After all, section 105 only applies to federal government works, and specifically indicates that it can receive.
Thus, it is presumably indisputable that the attorney (or his employer) would own the copyright in the work at the time of creation under the 1976 Act combined with Berne. Your argument would then presumably be that it might become public domain under section 105 upon submission to a federal court (as section 105 pertains on its face to only the federal govt.)
The problem is that since copyrights don't enter the public domain when received by the federal government, there is no reason to believe that transfer of one or two copies of the work, but not the copyright itself (which under section 204 requires a writing) would fare that much worse, causing title to the copyright to essentially transfer to the public domain.
> If I were a publisher of briefs, I would get permission.
Well, so would I. But I suspect that most will continue to not do this.
Bruce E. Hayden bhayden[_at_]acm.org Austin, Texas bhayden[_at_]copatlaw.comReceived on Fri Apr 12 1996 - 12:46:25 GMT
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