Re: copyright of briefs

On 10/16/96, Paul Heald wrote:
>
>> 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".
>
> Maybe they're technically copyrigthable, but wouldn't reprinting
> them certainly be a fair use? Can anyone provide even one reason why
> we should want to see filed briefs not made available to the public
> for copying?

That's not the question. Of course court records are available for inspection and copying (for reading in the privacy of one's home or office). The openness of the courts' records is part of what protects our citizens from tyranny.

> The federal courts seem to take the view that photocopying is fair
> use--most will photocopy briefs at your request (and charge you a per
> page copying fee). This is good, isn't it?

The courts have never opined that such copying is okay because of any particular doctrine, "fair use" or otherwise. Copying for reading in the privacy of one's home or office is part of making the court record open, which is important as a protection against tyranny.

But that's not what anybody is talking about here. What people are talking about here is whether the implied license granted by someone who files a brief in court, which permits anti-tyranny inspection and personal copying of court papers, also necessarily extends to allowing profit-making entities to make profit by charging, directly or indirectly, for disks or books or databases that compile briefs.

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