Re: copyright of briefs

John Lederer <johnl[_at_]ibm.net> wrote:
>
> My point poorly made, was not so much to the ethics, as it was to the
> dysfunctionaility of applying copyright to a work which is required
> by the government to be produced.
>
> In such a case copyright has no benefit and should not be applied.
> Indeed, its application is bad public policy as it actively harms the
> public inteerest in free speech without providing any benefit in terms
> of increased work.
>
> Put simply, its principal effect is to retard the progress of knowledge.

I think this depends on how the copyright is being enforced (and possibly therefore the extent of any implied license granted??)

Sure, you are possibly talking retardation of the progress of knowledge when you try to prohibit someone from reading your brief when they are trying to understand the underlying case.

But in the case of plagarism, this is no different than taking someone else's prose in a novel, or computer code in a program. Sure, you may retard knowledge a little. But that can be said with equal force with any copyright. What you have with the plargarism of briefs (in part, or in whole) is apprporiation of another's work product. And this is precisely what copyright is designed to protect.  

> The Constitution posits the "progress of science (knowledge)" as the
> purpose for which Congress may grant a limited monopoly on use.
>
> In other words-- a brief might be copyrighted under current law, but
> I suggest that current law may be both bad policy and possibly
> unconstitutional.

But you are looking at things from a micro, not macro point of view. You are saying essentially that science is not advanced, etc. if this particular work is protected from copying without the author's permission.

But that case can always be made. How about an encyclopedia? Any number of other situations present themselves where you can make this micropolicy  argument. But you have to look it as an overall policy - does the copyright law advance science by giving authors some protection against copying, etc.? And the answer is probably yes.

> I think that this constitutional problem will exist whenever we try to
> frame copyright in terms of "author's rights" rather than in terms of
> "public benefit".

First, the two are not truly separable. The overall policy decision is that the public benefits when the individual does. Of course, there are also instances where this may not be true.

But this is also where fair use comes in. Though not an official policy consideration in fair use analysis, public benefit, such as briefs to important cases being available for reading (but not plagarism) can be taken into account.

Part of my point here is that a flat discard of copyright in the case of briefs is inappropriate and unwarranted. It throws out the baby with the bathwater - you would allow unlimited plargarism along with the copying necessary to understand important cases.

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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