ILNews

Legal briefs raise copyright questions

Back to TopCommentsE-mailPrint
Indiana Lawyer Focus

Indiana attorneys are used to submitting briefs to the courts and having access to pleadings filed by other lawyers.

Public access is a given, most appellate lawyers agree, and neither that practice nor the policy of sending those briefs to legal publishers for publication is at issue in Indiana.

chris brown Brown

But that could change. A federal lawsuit in New York is challenging the practice by legal publishers, such as WestLaw and LexisNexis, to digitally collect and sell legal briefs and memoranda on the grounds that it’s a violation of federal copyright law.

Those in the intellectual property world say it’s an intriguing issue and one that might give lawyers here reason to pause and think about whether their work might be open to copyright protection.

“This is an interesting issue, and the outcome of this case could be persuasive and even controlling throughout the nation,” said Chris Brown, a partner with Woodard Emhardt Moriarty McNett & Henry in Indianapolis. “Yes, it’s an academic question, but it’s something we’ve discussed in the office about who would own the copyright to our briefs and pleadings. We may find out the answer to that in this lawsuit.”

In the putative class action filed Feb. 22 in the Southern District of New York, two lawyers – Edward L. White, of Oklahoma, and Kenneth Elan, of New York – are seeking damages, disgorgement of profits and a declaratory judgment against West Publishing and LexisNexis for engaging in what they call “the unabashed wholesale copying of thousands of copyright-protected works created by and owned by the attorney and law firms.”

White, an IP attorney, said in the complaint and exhibits that he obtained copyright registration for 22 legal documents he’s written as far back as March 2007. His plaintiff status represents those lawyers who may have obtained copyright protection for their work; the second possible subclass is attorneys who haven’t obtained that registration. Elan is a commercial litigator who claims the defendants had no right to include his documents in their electronic databases. He did not copyright his work.

No court hearings in the suit had been scheduled by IL deadline.

The case will likely turn on the issue of whether publishing the content produced by the attorneys constitutes fair use, a legal question that includes an analysis of whether the companies provide valuable services for researchers and educators or whether the commercial use transforms the work into a for-profit market. Legal experts say this case appears to be the first of its kind in the U.S., but it’s been on the horizon for years.

mark mckenna McKenna

In 2009, the Supreme Court of California received a complaint by attorney Edmond Conner about the court’s sending of lawyers’ legal briefs to the legal publishers. He asked that court to change its rule of sending two of the four copies to Lexis and Westlaw in order to prevent those briefs from being sold for profit. Conner submitted a 143-page brief on an indigent client’s employment discrimination case and was shocked to learn that the brief and the hundreds of hours of work was being marketed by legal publishers and sold to other lawyers.

As an alternate to automatic transmission to WestLaw and Lexis, Connor proposed a system that would allow lawyers to control whether their briefs would be sent to the publishing companies and would enable the lawyers to share in earnings for those distributed materials. Connor wrote in a letter to the court that he had no problem with all briefs going online because it wouldn’t involve commercial sales by the legal publishers.

That line between profit and public access is one that Notre Dame Law School professor Mark McKenna sees as important in the federal case against the legal publishers.

“These briefs are filed with courts and people have an interest in public accessibility to these documents,” McKenna said. “You’re supposed to have access to these, and this is an extension of that effort to make the legal system more visible. But there’s a question of fair use and the commercial use, and that’s a non-trivial question.”

The question, he asks, is what these lawyers think they might get out of this suit as far as damages.

“My own view is that the fair use arguments are strong for the legal publisher, and that the (lawyers) here are probably poking the legal research companies that have traditionally sued (other firms and companies) and strategically used copyright laws to protect themselves from competitors. It’s ironic that a party that’s been an aggressive copyright claimant in the past now has to defend the public use of a brief,” McKenna said.

schantz Brown

Many courts do send briefs to Westlaw and/or LexisNexis along with other documents under bulk data agreements, but so far the New York suit is the only legal challenge to the practice.

In Indiana, Appellate Clerk Kevin Smith said his office has an arrangement with Westlaw to give the publisher a copy of each brief submitted. In exchange, Westlaw allows appellate judges to receive free access to those electronic briefs. The policy began in April 2005.

“In fact, Westlaw adds value to the briefs that would be extremely time-intensive for us to add, if we could at all, such as indexing and hyperlinks to the precedent and other material that the briefs cite as authority,” Smith said.

To Indianapolis IP attorney Matt Schantz, the lawsuit raises questions about legal publishers’ practices of receiving briefs from courts throughout the country and selling those at a price for legal research.

“I don’t think the components of the fair use analysis weigh favorably for publications like WestLaw in this situation, because the purpose is a commercial one and they’re making money off these briefs,” Schantz said. “In the clerk’s situation, that sounds more like educational and public access. But I don’t see publishers having the same kind of basis in what they’re doing with these briefs.”

Greenfield IP attorney Paul Overhauser sees a solid argument for copyright infringement. He’s observed this issue come up on multiple IP list servers.

“You see copying a lot from other lawyers, and this can be a way to curb that. But this is about legal publishers making money and not sharing a penny with those who put blood, sweat and tears into writing them. That’s not right,” he said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

ADVERTISEMENT