RE: copyright of briefs

On 10/16/96, John Lederer <johnl[_at_]ibm.net> wrote:

[are legal briefs protected by copyright?]

> Let us ask a slightly different question.
>
> Does Congress have the power to grant copyright in legal briefs?
>
> Or more generally, Does Congress have the power to grant copyright
> when it is in derogation of the progress of knowledge?
>
> Copyright, of course, is a restriction on freedom of speech. Presumably,
> then, the power ought be narrowly construed. Does the statement of
> purpose in the Constitution impose any limits on copyright?

Well, if we allow school textbooks to be protected by copyright, does this derogate the progress of knowledge? Of course not. One is still free to read the textbooks and to gain knowledge from them, and to pass along that knowledge to others. Does it restrict freedom of speech? Again, of course not. One is likewise free, after having read the textbooks, to give speeches passing along the knowledge to others.

The same is true of legal briefs and court papers of all kinds. One is always free to stop by the courthouse and read them. One is also always free to stop by the courthouse and make a copy of them to take home to read in the privacy of one's home or office.

Therefore does it follow that one can freely assemble databases of such briefs or court papers and profit (directly or indirectly) from customers' use of such databases? No, it does not. From this does it follow that one can assemble books containing such briefs or court papers and profit from sale of the books? No, it does not. Only if the author of the briefs or court papers gives permission.

In the special case of US Supreme Court briefs, it is a practice going back for decades that Lawyer's Edition publishes the briefs. In that case I think the author of the brief has given permission. Otherwise, no.

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Carl Oppedahl, Oppedahl & Larson, patent law firm
http://www.patents.com/ has hundreds of pages of answers to 
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