Re: copyright of pleadings

At 10:28 AM 04/13/96 -0700, Cem Kaner wrote:
>
> I've been reading this discussion of copyright of briefs with some
> dismay. Let me raise a related question -- what about the pleadings?
>
> There are times that it will be valuable to include a complaint and
> an answer in a book (I am planning to do so in a book on consumer
> protection for software purchasers.) The parties in almost all of
> these cases settle, so there is no record of the case outside of the
> complaints. The settlement agreement often provides that the attorneys
> and the clients won't discuss the case, so there is no chance that the
> attorneys will grant me publication rights. In fact, in many cases the
> attorneys don't even acknowledge inquiry letters about such cases.
>
> The pleadings in these cases are still public documents, but if they
> are not (I have always been taught and believed that they are) publicly
> reprintable then there is no way that anyone in the public will ever
> see them because the authors of the pleadings cannot and will not grant
> rights to reprint them.
>
> Are pleadings in the public domain or not?

I suggest that's not the right question. Or, if it is the right question, the answer is, "no".

It takes a pretty strong unequivocal act for an original work to pass into the public domain before the copyright term has run. Years ago, all you had to do was publish without a copyright notice and BOOM it was in the public domain. I suspect that's how the publisher of the Lawyer's Edition Supreme Court Reporter managed to copy all those briefs; nobody was in the habit of placing a copyright notice on them.

But nowadays, with Berne and all, it's darn near impossible for someone to cause their work to pass into the public domain.

So then we ask, is it somehow in the public domain because filing papers with a court is a special act, an act that somehow (though it's not stated anywhere) causes things to be committed to the public domain? Can anyone point to a court case, or a statute, that evidences this? Not that I have heard.

What about the fact that papers filed with the court are public records. Doesn't that mean they are in the public domain? No, of course not. Those are two quite unrelated things. The public policy for court records being public (and, indeed, the public policy reason why courts are open to the public rather than having the doors locked) doesn't require papers to be public domain. It is enough simply for them to be public. That is, our society is protected (to some extent) from tyranny by the fact that what goes on in court is something that anyone can see, or hear, or read. That way people can assure themselves that what happens in court is fair. If a judge does something that is unfair, members of the public could see it and say something about it.

Closely related to this is the freedom of the press. The press should be able to see what happens in court, and should be able to see the papers filed in court. That way, the press can bring pressure to bear if something wrong is happening in court. This is all part of a society based on fairly applied laws rather than secret "star chamber" court proceedings. Part of what makes a country free is its rejection of the "star chambers" of the Inquisition -- rooms where trials happened without the public being able to see what was going on.

But does all this mean that people who want to, can make copies of what happens in court, or can make copies of what is filed in court, and make money by selling the copies? No. Nothing about freedom of the press, nothing about freedom from tyranny and an open court system, nothing about the right of the press or the public to tell the world what they saw in court, requires that such copying and selling be permitted. At least, not that I have seen.

Suppose there were some lawsuit surrounding the movie "Star Wars", and suppose a copy of the movie was for some reason filed with the Court, say as an exhibit. Any member of the public could inspect it, probably. Any member of the public could report what they saw in the exhibit. But does this mean people could make copies of the movie and sell them (without having to answer to the owner of the copyright in the movie)? Of course not.

I welcome any citations of law which people might be able to offer on this point. The only case I know about is the Church of Scientology case which parallels the "Star Wars" fact pattern in some respects.

---
Carl Oppedahl, oppedahl[_at_]patents.com  Oppedahl & Larson, patent law firm
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