Re: copyright of briefs

On 10/11/9, Dennis Austin wrote:
>
> A recent discussion on lawlib indicated that Bancroft-Whitney, a
> publisher of legal materials, decided to back out of a contract
> with the California Administrative Office of the Courts to put
> briefs filed by attorneys up on CD-ROM, stating that there was a
> copyright problem. It seems that the company believes that the
> individual lawyers who write the briefs have copyrights in them.
> This seems strange since the US Supreme Court briefs are routinely
> put online and available in microformats. Do briefs fall into the
> materials that are protected by copyright?

I suggest the answer is "yes". I can't think of any reason, frankly, why the answer would not be "yes". They are works of original authorship (well, most of them are, anyway) that are fixed in a tangible medium.

The most one could say for those who wish to reproduce such briefs, I suppose, is that the lawyer filing the brief is consenting to some sort of implied license based on the knowledge that anyone can go see the court clerk and copy anything in the court's docket. But that right of copying does not, as the night follows the day, count as license to make money by publishing and reprinting the briefs.

There is the special case of Supreme Court briefs. Lawyer's Edition has reprinted briefs for decades, and I suppose that one who files a Supreme Court brief knows or should know that the brief will be reprinted there.

Consider the Scientology case where somebody placed some of the COS papers in a court document, and somebody copied the court document, and the further propagation of the court document was found to be copyright infringement. The mere fact that the papers were in the court's record did not make them somehow no longer protected by copyright. (It did, however, destroy the trade secret status of the papers as I recall.)

---
Carl Oppedahl, Oppedahl & Larson, patent law firm
http://www.patents.com/ has hundreds of pages of answers to 
frequently asked questions on patent, copyright, and trademark law