Re: copyright of briefs

Buford Terrell wrote:
>
> 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.

I think you read too much into the case. In Feist, there was ZERO expression. All that the company had going for it was sweat of the brow. In this case, presumably if you gave different legal researchers the same job, there would be somewhat different results.

But more importantly than just the cites dug up is the language that the attorney uses to describe them, tie them together, and to use them to make his argument. IMHO, there is usually more than sufficient original expression in such to qualify for copyright protection.

> > 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.

I think we have to look at two different potential markets - that for the briefs in whole, as unofficial parts of the record sometimes useful in understanding cases, and copying all or parts of briefs by other attys in order to cut their own work down.

There may ultimately be a market for the first type, if and when we get database protection. In the second instance, you don't have a formal market, but the client (or atty if unethical) copying benefits financially by not having to pay for the research and writing.  

> 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.

Good point, though I remain unconvinced. I think one argument may be that though the attorney may not have all that much discretion as to whether to file a brief (even if not formally required, he may face discipline if he doesn't file one), he does have quite a bit of discretion as to what to file, and how much work he should put into it.

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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.
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Bruce E. Hayden                                  bhayden[_at_]acm.org
Austin, Texas                                    bhayden[_at_]copatlaw.com