Re: copyright of briefs

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?

Well, the last time I looked at 17 USC, I didn't see any exceptions for original works of authorship that excluded attorneys' briefs. So, yes, to the extent that the briefs contain sufficient original expression, they are most assuredly covered by copyright.

However, the analysis doesn't end there. Copying of another's work is usually infringing, unless excused. The primary excuse of course is license. So, the next question to be answered concerns the extent of any license granted by the attorney by the submission of a brief. And I think that at least at the Supreme Court level, a strong argument can be made that submitters of briefs have a resonable expectation that their works will be read (and therefore nowadays reproduced) by others. And thus are probably impliedly licensed. Of course, reading and excerpting into other briefs are very different. And so, one cannot say that all uses of the briefs are impliedly licensed. And in another direction, the farther down the judicial hierarchy you go, the less public interest there is in the briefs, and therefore the lower the probability that the submitting attorney has a reasonable expectation that others will see and reproduce the briefs, and therefore the lower the probability that copying is protected by implied contract.

-- 
---------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1996 Bruce E. Hayden, All Rights Reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
---------------------------------------------------------------------
Bruce E. Hayden                                  bhayden[_at_]acm.org
Austin, Texas                                    bhayden[_at_]copatlaw.com