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Legal briefs raise copyright questions

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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.•

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