Re: copyright of briefs

Bruce Hayden wrote:
>
> 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.

I just don't think the application of copyright principles applies very well in the context of legal briefs. Briefs are written by attorneys on behalf of clients usually in exchange for a fee paid by the client. The fee paid to the attorney has little to do (at least directly) with the content of the brief. Of course a bad brief or poor case management decisions whether to even file a brief might get you fired. The point of filing legal briefs is not to protect or enhance the dissemination of ideas to the general public, but to convince one or more judges to rule in favor of the author's client.

> 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.

Of course! Attorneys have a duty to their clients, among other things, to keep costs down. If I happen to locate someone else's brief that addresses a particular legal issue in my case, IMHO I have a duty to my client to use it to the extent it is helpful. Why should my client pay me to research the same issue all over again -- beyond checking the accuracy and applicability of the other brief to my facts -- when I have in hand a brief that adequately or expertly addresses the issue.

On a related note, what if I am representing a large corporation that uses law firms all around the country and the corporate counsel gives me a brief that has been prepared by an attorney in another part of the country on the same issue? As someone pointed out earlier in this discussion, the brief probably is not a "work for hire" because attorneys are invariably independent contractors. Has the corporate counsel infringed the copyright of the first lawyer by giving me the brief. From the client's point of view, it may be expected that I plagiarize the brief so that the client does not have to pay twice for the same advice.  Is there anyone out there who thinks the first attorney will seek to enjoin the client from sharing the brief with me or me from using it?

Not legal advice; and I'd be happy for you to circulate my postings even for commercial gain so long as proper attribution is given.

Paul W. Grace, Esq.
Baltimore, MD
pgrace[_at_]ix.netcom.com Received on Thu Oct 31 1996 - 17:55:44 GMT