RE: copyright of briefs

On Wed, 16 Oct 96, John Lederer <johnl[_at_]ibm.net> wrote:
>
> On 10/14/96, Robert Cumbow <CUMBR[_at_]perkinscoie.com> said:
>>
>> Any work of original authorship is protected by copyright unless it
>> consists entirely of uncopyrightable matter. The fact that someone's
>> work has become part of a public record does not invalidate the author's
>> copyright and right to exercise control over subsequent uses. See,
>> e.g., Marvin Worth Prods. v. Superior Films Corp., 319 F. Supp. 1269
>> (SDNY 1970) and Douglas Intl Corp. v. Baker, 335 F. Supp. 282 (SDNY
>> 1971) [Lenny Bruce's monologues could not be subsequently used in films
>> or plays about him, merely because they had become part of public court
>> records].
>
> 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 pwoer 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 Consttitution impose any limits on copyright?

An interesting question. In view of countless cases that stress the purpose of copyright is to "promote the progress...," there is certainly a plausible argument that the answer is no to the Congressional power question.

As to whether copyright trumps the first amendment, another important question in this context is its relationship to the 6th amendment's right to counsel (admittedly a criminal law oriented concept) as well as the general assumption that our courts work with counsel on both sides free to represent clients. In these situations, presumably the courts have to stirke a balance.

Also, since regulation of the courts is a JUDICIAL function, it may be that Congress lacks the power to grant a copyright to briefs for another reason relating to separation of powers, at least insofar as the copyright affects the public's right to access and copy briefs.

However, when it is not a question of judicial process, but whether a third party can compile a set of briefs and publish them for commercial purposes, maybe the answer is different.

A caveat on the above--these are thoughts meant to prompt discussion, not be definitive, well-reasoned answer.

Harold Federow
<hfederow[_at_]u.washington.edu> Received on Fri Oct 18 1996 - 15:19:11 GMT