Re: copyright of briefs

From: Buford Terrell <terrell[_at_]gateway.stcl.edu>
Date: Mon, 21 Oct 1996 10:18:28 -0500

Bruce E. Hayden <bhayden[_at_]copatlaw.com> wrote:
>
> Paul Heald wrote:

>> > 
>> > 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?  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?

>
> Before you just flat out declare that copying briefs is fair use, you
> have to look beyond just the reading of the briefs. For example,
> taking portions from your brief filed with a court and incorporating
> those portions in my brief is somewhat different. I am in that case
> using your superior research skills and ability to write to make
> myself look good.

But Feist says your research skills and ability are not what is protected.

> As a note, I prefer the implied license theory better than the fair use
> theory here for most situations.

For court briefs, fair use is a much better analysis. Even if they are copied by other lawyers for reuse, this is still a use that is within the "scientific, educational, critical" realm, is not for profit, in the sense that the copy itself is not being sold, and, except for unusual cases, there is no market for briefs to be effected.

Two problems with implied license: since the filing of briefs is, to a large extent forced, a claim of a voluntary grant is somewhat specious, and the concept of license implies that the author has the right to withhold the use of his brief from the furtherance of legal argument, which I think is a bad result.

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Received on Mon Oct 21 1996 - 15:53:11 GMT