RE: Re: OCLC Suit Against the Library Hotel

From: S. Martin Keleti <keleti[_at_]manifesto.com>
Date: Mon, 09 Jan 2006 14:15:55 -0500


At 02:36 PM 10/10/2003, "Frederick Emrich, Editor, info-commons.org" <editor[_at_]info-commons.org> wrote:
It seems strange to me that any document, once filed in court, would not normally be in the public domain.

At 02:36 PM 10/10/2003, "Harold Federow" <HaroldF[_at_]bsquare.com> wrote:
>I wonder what the court rules say on this?
>
>For paper filings, once a complaint is filed and the court file set up,
>unless it is under seal, the public can go into the clerk's office and
>make a copy. Why would electronic filing be any different? And,
>therefore, what would be the objection to posting on this list?
>
>Harold Federow

This subject has no doubt come up before (I believe it was in the context of whether Westlaw could/should include briefs in its database), but just because something is filed with the court doesn't make it public domain. The public may have access to it. Individual members of the public may have a right to make a copy. There may be an idea/expression merger. There may be a "thin" copyright or none at all because of the factual nature of the work. But that's different than dedicating something to the public domain just because it happens to be filed with the court.

An extreme example might be found by looking at California Code of Civil Procedure section 429.30:

429.30. (a) As used in this section:

    (1) "Complaint" includes a cross-complaint.
    (2) "Plaintiff" includes the person filing a cross-complaint.
    (b) If the complaint contains a demand for relief on account of
the alleged infringement of the plaintiff's rights in and to a literary, artistic, or intellectual production, there shall be attached to the complaint a copy of the production as to which the infringement is claimed and a copy of the alleged infringing production. If, by reason of bulk or the nature of the production, it is not practicable to attach a copy to the complaint, that fact and the reasons why it is impracticable to attach a copy of the production to the complaint shall be alleged; and the court, in connection with any demurrer, motion, or other proceedings in the cause in which a knowledge of the contents of such production may be necessary or desirable, shall make such order for a view of the production not attached as will suit the convenience of the court to the end that the contents of such production may be deemed to be a part of the complaint to the same extent and with the same force as though such production had been capable of being and had been attached to the complaint. The attachment of any such production in accordance with the provisions of this section shall not be deemed a making public of the production within the meaning of Section 983 of the Civil Code.

Here's the cross-reference:

983. If the owner of any invention or design intentionally makes it public, a copy or reproduction may be made public by any person, without responsiblily to the owner, so far as the law of this state is concerned.

How much use this gets any more in a post-1978 world is uncertain, but it's interesting that the last sentence of the statute refers to Civil Code 983 (dedication by publication) and specifically exempts the attaching of literary, artistic, or intellectual production to pleadings is NOT a dedication (I can imagine that when common-law copyright figured more prominently in the legal landscape, the issue of plagiarism of an unpublished work might arise, and that a copy of the allegedly infringed work would have to be attached to the complaint.)

This is analogous to the situation when one sends a letter by post. The recipient can keep the "copy" (which, by 17 USC 101, includes the original copy in which the work was fixed), but the copyright in the literary work still is retained by the author. For various reasons, including fair use, the recipient might be able to make one or more copies of the letter and distribute them publicly, yet the recipient is not the copyright proprietor and the work has not been dedicated to the public domain. Similarly, just because a work is disseminated on the World Wide Web does not mean that the author has given up the copyright.

If I quote long passages of a literary work in a complaint or reproduce an entire pictorial or graphic work, do I lose the copyright? Of course not. Although the contours of the law of copyright have changed, the concept that the inclusion of a copy of a work

I hope that this helps answer Mr. Federow's query and makes it seems less strange to Mr. Emrich.

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Tue Jan 10 2006 - 00:15:55 GMT

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