Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They're Infringing On Copyrights Of Legal Filings Themselves
from the fair-use-in-legal-filings dept
In 2009, we wrote about a case involving a lawyer named Ed Connor filing a class action lawsuit against the two giant legal aggregators, Westlaw and Lexis-Nexis. His argument was that legal filings, which those two services aggregated into large databases and then sold access to, were covered by copyright, and these two giants were clearly infringing on those copyrights. In 2010, we wrote about a similar case filed against Thomson Reuters. I can’t find any info on what happened to either case.
However… it appears that some more lawyers are trying the same thing. A bunch of folks have sent over the various reports of how two lawyers are suing Westlaw and Lexis-Nexis again (though most of the reports seem to ignore the earlier lawsuits). We’re posting this lawsuit below (and, um, given the nature of the lawsuit, we’re stating clearly our belief that this is fair use!).
While it is true that it is reasonable to see the legal briefs as being covered by copyright, that doesn’t necessarily mean the collections are infringing. Westlaw and Lexis-Nexis have a slightly weaker fair use claim, in part because they’re selling access to the database (whereas someone like me is not). They’re also not providing any direct commentary (again, unlike this post). That said, I’m still not sure that they’re really on the wrong side of fair use. While I’m sure part of the argument is that the amounts that Westlaw and Lexis-Nexis charge are evidence of commercial value of these documents, that’s kind of silly. The value is in the aggregation of all the documents, not in the individual documents themselves — which are more or less worthless in a commercial sense.
It would be nice if the law were clearer that this kind of thing definitely was fair use — and hopefully that’s how the courts will rule. But if not, Congress should make it clear. The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It’s simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work — and there’s clearly no need for copyright in this instance. Yet another example of the travesties that happen when you automatically put copyright on every work upon fixation. It makes no sense at all when it involves works that are created for reasons that have nothing to do with copyright and would continue to be created in the total absence of copyright.
Filed Under: copyright, fair use, legal briefs
Companies: lexis nexus, westlaw
Comments on “Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They're Infringing On Copyrights Of Legal Filings Themselves”
A few problems...
Mike, I agree with you on a lot of the article.
But this is my take. First what lawyers write in the legal briefs and legal filings are in some cases a creation of their education, training, and experience. While other lawyers take what someone else wrote and pretty much copy it verbatim when they file a similar lawsuit. So although we don’t consider it a written work like a book or a screenplay; the filings are original written works.
As you state “the purpose of copyright is to incentivize the creation of the work”. Well if you are a lawyer and a lazy one using Lexis/Westlaw you can pretty much prepare any legal filing without actually doing much work. Thus creating nothing new.
So I can understand why a (no facts related to the people involved) non-lazy, legal expert would not want his writing just copied by someone else and they get to charge the ridiculous fees.
PS. We also know very well that a lot of legal filings can be great works of fiction. Also I am not now nor have I ever been a lawyer.
Well, good, maybe if enough lawyers sued each other over infringing legal filings, fewer layers will file legal claims and we’ll have fewer frivolous lawsuits. IP can be used to stifle the progress of frivolous lawsuits, which can be a good thing.
Plan B: Policy change
While it is true that to date the exemption to copyright for court opinions has been carefully kept unavailable to court filings, it is worth noting that this position might have occurred only as a result of there being no successful challenges to the de facto public domain status of the filings. As even state court opinions are normally uncopyrightable as matter of policy, the result of a successful suit might simply be a quick policy fix to restore the status quo ante.
Re:
and you know what we really need. Vague and pointless patents on these sorts of legal filings. Then maybe the legal system can collapse on itself and we can have no more bogus lawsuits.
Re:
Nice thought. Doubt it, but nice thought.
Are legal briefs not public records?
Whenever a legal brief is submitted to a court they become public record and therefore should not be subject to copyright. I don’t see how there is any case here?
A few problems...
The pertinent question is: can you find any evidence that lawyers would stop creating legal filings if they did not get copyright on said filings?
I think the answer is a resounding no.
Copyright is therefor not needed for legal filings.
A great idea...
… because what we really need is to make the legal systems even less accessible, with less information available to even those few able to afford these services.
Surely it’s in the public interest that legal information be as easy to access as possible anyway?
As for the argument about having access to these documents making legal work easier and cheaper, how is that not a good thing for everyone? We want legal services to be as simple, accessible and cheap as possible.
[I’m not a lawyer (yet), but am also not USian, and we don’t seem to do the whole “publishing court filings” thing over here – at least, I’ve never come across any on Westlaw et al.]
A great idea...
I agree that I don’t want them to limit access. But I have not seen any reduction in cost because they spend 5 minutes copying text from other’s work. So limiting access or making it more expensive in not an argument.
As for making legal services “simple, accessible and cheap as possible” the lawyers will make sure that doesn’t happen. They are the architects of artificial scarcity.
A few problems...
So I can understand why a (no facts related to the people involved) non-lazy, legal expert would not want his writing just copied by someone else and they get to charge the ridiculous fees.
I can understand this emotion too. And I’d bet Mike would understand it too. But the emotions around whether someone is using your work without your permission has absolutely zero to do with the original intent of copyright. You quote that original purpose and then proceed to completely ignore it by appealing to emotion.
As for the “ridiculous fees”, maybe if more lawyers actually did copy the legal filings from each other, there wouldn’t be a need for these high fees.
A few problems...
I hope we do see a some sort of ruling this because legal briefs and filing shouldn’t be protected the same way that a book or article is protected. That’s as bad as the idea of patenting elements and natural chemical structures. Everything that can be said in legal terms has already been said so who would get the copyright?
Copyright, carried to the logical conclusion will grind this world to a halt
It has become clear to me, that if the IP maximalists havetheir way, this world will grind to a halt. I know of no other area of the law that is having such a detrimental affect on innovation and society.
A few problems...
Lawyer here. Practically, copying a brief verbatim is generally not that useful. The most important part of a good brief is the argument applying the law to the particular facts of your case, which will generally be different for each case. What can be usefully derived from another brief is the case cites, which are clearly not copyrightable.
Plus there is a strong public policy rationale in favor of reduced copyright protection in briefs submitted to the court. One of the foundations of our legal system is transparency in the decisions of the courts and papers considered in making those decisions. That is why things like pleadings and motions are generally public documents. Strong copyright protection in crucial components to legal process would seriously undermine this principle.
Finally, it is extremely uncommon in the law to draft documents from scratch; because there is so much to take into account when drafting, it is very risky to do so off of the top of your head. For this reasons law firms will usually have an archive of template documents which will be used as a foundation for things like drafting new contracts and pleadings. These templates are the product of many lawyers editing and tweaking over the years. Briefs are somewhat less amenable to this, but are often used as references. So much of the practice of law is basically copying and adapting preexisting documents
A few problems...
Bingo!
Legal briefs can be difficult and agonizing to draft; and the creative ones get read more closely = win more motions.
There are really only two basic reasons to read some other lawyers’ brief. 1) As a jumping off point for how to approach a particular matter the attorney has not dealt with extensively; or 2) to steal — er, copy — the brief and the other lawyers’ work.
And while the lawyer who wrote the brief was really incentivized by his duty to his client, a good brief is certainly a creative effort.
Westlaw et al. subscriptions are insanely expensive … like moderate access to databases of case law, statutes, and a few practice guides in your region only can still be $500-1000 per month, per user. Access to the briefs and filings on a case comes at additional cost. If you don’t pay extra for the briefs, you get this in a popup:
So the way to solve the problem is for Westlaw et al. to provide the briefs as part of the regular subscription (i.e., free, sort of). Or, a mechanical license similar to CDs, of say .10 per download, would not kill Westlaw, would compensate the author, and might even be a fair result.
Sum: This is a difficult question with good points on both sides. Terribly interested to see how it turns out.
isn’t any document that enters the court system considered public domain? Or is it merely the record of the proceedings before the bench that is public domain?
One would think that with legal documents, once they are filed with the court, become public property, and therefore cannot be covered by copyright.
A few problems...
Well if you are a lawyer and a lazy one using Lexis/Westlaw you can pretty much prepare any legal filing without actually doing much work. Thus creating nothing new.
It is new – because the case to which it is applied is unique.
It is not the purpose of copyright law to discourage laziness – if it were then copyright would not provide an income stream for doing nothing.
A few problems...
… and on the other hand, one can get virtually all federal case filings directly from the gubment Pacer site for .08 a page.
That in itself creates a sort of de facto public domain government mandate that will be an interesting issue for the plaintiffs to argue themselves out of.
A few problems...
I didn’t really ignore it. Original Legal filings required creative thinking. What does it take to write a book?
A few problems...
I did not even try to delve in to the actual issues with copyright. But the legal works are still works. Written for the purpose of expressing the opinion or thoughts of the mind involved.
A few problems...
I agree with you. The case is unique. But the arguments for or against that are put forth in most cases are basic reiterations of other’s work.
And reconsidering unique. I say no. I would bet that 95% of cases are only unique in terms of the people involved and the dates and times. Not unique in terms of the process to fight or defend the case.
A few problems...
Once you file your papers in court my belief is that they become part of the record of the case. They become “facts”.
Facts can not be copyrighted.
Work for hire
Even if legal briefs were covered under copyright, shouldn’t the copyright be the name of the client? After all the client is paying the lawyer to compose the document.
A few problems...
Define facts?
Definition of FACT
1: a thing done: as
a obsolete : feat
b : crime
c archaic : action
2 archaic : performance, doing
3 : the quality of being actual : actuality
4 a : something that has actual existence
b : an actual occurrence
5 : a piece of information presented as having objective reality
? in fact
: in truth
A few problems...
Also just want to say that filings are not facts until they are “in law” they are opinions as to how the law should be applied.
(Of course I could just be talking out my butt and completely wrong)
A few problems...
I didn’t really ignore it. Original Legal filings required creative thinking. What does it take to write a book?
You’re still ignoring it. Do you believe lawyers produce more or better legal filings because of copyright? If so, what evidence do you have for this belief, if any?
I don’t think legal filings should be covered by copyright. If they are that implies the author otherwise has no incentive to write them. Clearly that’s not true.
And even if abolishing copyright in this case means a whole bunch of people would stop writing legal filings, is that really such a bad thing?
A few problems...
Yes, you did – just as you’re ignoring it now.
Which has what to do with the purpose of copyright? Just because something requires “creative thinking” doesn’t mean that it wouldn’t be created without granting a monopoly to the creator.
A few problems...
You miss the point.
Copyright is not about rewarding or protecting works that reach some kind of minimum level of creativity.
Copyright is about giving the people access to as much works of art as possible. This is done by giving a limited time economic monopoly to the creator, so that works of art are created that would otherwise not be created.
It has nothing to do with what is “fair” or “feels good” or is “deserved”. It is a simple pragmatic equation: if we give artists monopoly on making money on their art for a while, we think they make more art. This benefits society as a whole.
At no point is the feelings of artists even remotely relevant, it is a straight up attempt at resource optimization.
Legal filings are documents that are part of the practice of law, which is a very high-paid profession – there is no reason to put them under copyright.
In fact, doing so would have pretty strange consequences – not only do a lawyer have to create filings for a case in order to win it, he would also have to make sure that all filings are original and unique, or risk being sued for copyright infringement (with the intent to make money no less!) or plagiarism.
A few problems...
“he would also have to make sure that all filings are original and unique, or risk being sued for copyright infringement”
Someone get Steve Gibson on the phone, I think you have stumbled on his next business misadventure.
The Westlaw method
Mr. Sheenyglass up there makes a lot of sense.? I?was surprised to hear that pleadings, motions & briefs are not considered public domain / public property after the trial is over & they don’t need to be “secret” anymore.
Westlaw could still charge outrageous subscription rates for their “aggregations”—as long as they can get away with it.
Transcripts produced by court reporting companies probably need copyright protection for a short period so that no one else can just copy the e-version, print it off & charge for it as if it were their own.? A?70 years term for that is silly.? Five to 10 sounds about right.? No more money to be made from it by then & no need for further “protection.” IANAL.
A few problems...
If copyright is enforced they may be a lot more likely to create *original* legal filings, instead of copied/pasted filings.
A few problems...
But its a very different thing for lawyers at a firm to copy that firm’s prexisting database of work product, than for another firm to copy it.
A few problems...
Your belief does not mesh with the law.
Are legal briefs not public records?
That’s not how the law works.
Who pays? I guess we all could?
As far as I can tell, most lawyers refer to Lexis at some point, because it’s convenient. So a lawyer smells money, calls “lawsuit!” and sues Lexis for charging money to access Lexis. The lawyer might have used Lexis resources to build their case. Ironic? Methinks it might be.?
On the other hand, academics are outraged at the high fees charged by publishers for access to journals. The academic never (or very rarely) gets paid for the work they perform to submit research but the academic, or rather the university that employs them, has to pay to read their published article. In reality the taxpayer should be the aggrieved party, given that we pay the academics wages, for their research grants, and for the journal fees, but the taxpayer in general doesn’t realise that this is the case. The academic on the other hand who is entirely supported by the taxpayer in many cases feels slighted and seeks recompense, via protest at the moment.
In both cases there may be a fair price for the aggregation of content. The problem is working out who decides what that fair price is. Google could have solved the problem a while ago by using advertising revenue to offset the cost of content aggregation. Everyone else is stuck in the 20th century attempting to assert their right to the status quo, rather than attempting to work out a better way of distributing the cost of content distribution.
(I think I just summed up “Pirate Mikes” entire site)
/I will feel smug for a few seconds, then realise that I’ve summed up the square root of nothing at all.
Re:
“isn’t any document that enters the court system considered public domain?”
No. Otherwise, any lawsuit regarding a work of art would make that work of art public domain (sort of defeating the purpose of filing the lawsuit).
Re: Re:
“‘isn’t any document that enters the
court system considered public
domain?’
No. Otherwise, any lawsuit regarding a work of art would make that work of art public domain (sort of defeating the purpose of filing the lawsuit).”
Me: So this means that any piece of music played in court during a copyright case enters the Public Domain just because the transcripts do? Kevin McCallister: “I don’t think so!”
Here’s a clue: Books, comics, MP3s, and DVDs are not legal documents. Either gen up and get wise, or just get out of the debate.
Re:
one would be wrong
Work for hire
That’s not how works made for hire work. In the typical atty/client scenario, you would need a written agreement saying the attorney work product is a work made for hire. That is certainly not common.
A few problems...
I am not a lawyer, but I do not think you can “pretty much prepare any legal filing “. There is certain boiler plate that is used repeatedly of course, but much of that is provided by the Courts themselves in their published forms and in places like appendixes to the FRCP. There are certain other paragraphs that will need only minimal customization to the particular case, but they still need customization and that requires a full understanding of them.
Also, with a few exceptions that are sealed for various reasons, most court filings are part of the public record. That means that anyone can go down to the court house (or sometimes even the Court’s website) and get a copy for a relatively small fee, with none of that money being paid to the lawyers that created the document.
A few problems...
If copyright is enforced they may be a lot more likely to create *original* legal filings, instead of copied/pasted filings.
How does society benefit from that?
As a lawyer who hires other lawyers, this lawsuit bothers me, a lot. Not only because it’s pointless (what do the lawyer-authors stand to gain?) and a dead loser on fair use grounds, but also because it exposes the navel-gazing attitude common in too many lawyers. They need to start thinking about their clients first.
Clients don’t care about their lawyers’ pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they’re doing is driving up the cost and complexity and legal services. That sure as hell doesn’t help their clients.
A few problems...
I am not a lawyer, but I would think the incentive to write a well-researched original brief would be to win the case.
A few problems...
Not as different as you might think. Depending on the firm, particular uses may vary, but in my experience (smaller firms) these aren’t anything so formal as a database, they are just collections of documents. Their authorship is rarely noted, and sometimes not even a product of the firm – its common courtesy to provide templates to other lawyers and much of the language used somewhat informally standardized across the profession (there are only so many ways to articulate a boilerplate contractual term). Its also common practice to take any language you think is good in any document you see and incorporate it into your templates. So for many documents authorship is impossible to parse.
Briefs are different (and more unique), but my point isn’t that lawyers commonly copy briefs verbatim – they don’t. Copying a brief earns you no money – if you bill for work you don’t do, that is fraud. My point is a general one about the legal profession – we rarely, if ever, draw up things from scratch, and what drafting we do is premised upon a belief that the drafting will improve the quality of representation.
A great idea...
As for making legal services “simple, accessible and cheap as possible” the lawyers will make sure that doesn’t happen. They are the architects of artificial scarcity.
Now ain’t that the truth. I always wondered about when things changed historically from a lawyer being anyone who was willing to read the law books and plead a case, to being such a strictly regulated system of certified reasearchers and orators.
For the sake of accuracy, there was no lawsuit filed back in 2009. What actually happened was that an attorney sent a letter to the California Supreme Court expressing concerns about a change in its practice of sending briefs filed with the court to specified law libraries.
A few problems...
Yeah, big whoop. I don’t think we’re creating works of art here. Copy/paste means less work, which means fewer billable hours, and it means that two substantially similar filings don’t have to be substantially different in how they’re written. (It also means fewer lawsuits over accidental infringement. Oh look, more lawsuits, so more work for the lawyers. Nice vicious circle you’ve got going there.)
It sounds like you’re deliberately going out of your way to advocate giving lawyers more work, thus more money, to the benefit of… nobody except the lawyers. And to the detriment of everybody else in the universe.
Tell me again how spending more on lawyer fees benefits society? And please, avoid the broken window fallacy.
For science
But lawyers would not have incentive to help promote the progress of the science of legal theories if we didn’t grant copyright on their work. If you use another lawyer’s work in your own cases without paying the required license fees, then you are a dirty lawyer pirate that just wants legal theories for free. And, you should be charged with criminal infringement since you are profiting from the use of that intellectual property.
A few problems...
You know, this sounds like Free Software under a BSD licence. Well, except we attribute the author (that’s about the only restriction), but if you want it and can use it, take it. Hope you can improve on it, and hope you re-release under the same licence. 🙂
A few problems...
Cool.
Again, this looks like how Free Software works under a BSD licence. It’s funny as !@#$ to see this happening before my eyes.
A few problems...
Don’t be thick headed. “Reality; actuality; truth.” In logic, “A = A; A != !A” 1+1=2. New York is the name of a city and a state in the North Eastern USA.
Stuart’s correct. “Facts can not be copyrighted.”
Cf. those dip!@#$s who were trying to insist that time zone data was copyrighted.
A great idea...
Guilds, the original form of protectionism. Lawyers aren’t the only one. Button makers in France formed one. Doctors, dentists, architechts, engineers, land surveyors, bakers, …
Re:
[citation needed.]
A great idea...
Guilds are both good and bad.
When all guilds allow you to do is *advertise* as a member of a guild (“I am a *board-certified* rheumatologist”), they’re good.
When they act as licensing authorities, they’re usually bad. Licensing needs to be done by a group under direct democratic control, namely a government — not by a self-selected guild.
Unfortunately, type 1 guilds try to get laws passed to become type 2 guilds.
lexisnexis
Lets say I wrote a text that gave instructions on how to repair a car. The text contained some information that was a secret and was not common knowledge, and that information led to reducing the repair time on that particular car.
That information is intellectual property of me. If I use or sell that information in printed form to another, I have a right to do so, and I can charge money for that if I so choose. However, if a party takes my information and makes photocopies of it and then proceeds to charge money to access these photocopies, that is very clearly copyright infringement. They are redistributing my intellectual property without my consent or authorization.
Where there are legal arguments to make copies of sound recordings and videos, there are very few legal arguments to make copies of written works. Sure, you can make fair use copies of works at a library, and the library can charge you for use of a copier. However, works at a library are generally published works authorized by their authors for public consumption. Legal Filings are private works and are not authorized for public consumption or reproduction / replication.
lexisnexis
Legal Filings are private works and are not authorized for public consumption or reproduction / replication.
I thought legal filings were either under seal or matters of public record.