Where would lawyers be without open (and absurdly expensive) access to Westlaw and Lexis-Nexis for legal research? They’d have to trudge down to the closest law library and read real books made of paper. They’d have to head over to the courthouse and pull actual files with non-electronic documents inside of them. In a time where legal texts are used solely for decorative bookshelf purposes, that is just too much to ask.

But that is the behavior that two lawyers would expect of their professional colleagues. As we mentioned in Morning Docket, they claim that the legal database providers have been engaging in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them.”

Do they have any chance of winning their class action copyright suit?

Before we get into any analysis, let’s take a look at the plaintiffs and their attorney. Edward White is a lawyer based out of Oklahoma City, and he has obtained copyright registration for several of his motions. Kenneth Elan is a lawyer based out of New York City, and he hasn’t sought copyright registration for any of his motions.

Gregory Blue and Raymond Bragar are the attorneys for White and Elan, and they hope to represent two classes in this suit: lawyers who have copyrighted their works, and lawyers who haven’t done so. Blue was kind enough to provide us with a copy of the suit, available here in its entirety. Here’s the crux of the complaint (please don’t sue us for reproducing it):

The case will be laughed out of court heard before no-nonsense Judge Jed Rakoff, known well for his eminently quotable benchslaps. But what will he think of this legal claim? Some other superior legal minds have offered their insights on the case.

While the WSJ Law Blog has called this a “a novel interpretation of copyright law,” those at the Constitutional Daily think that there isn’t “a snowball’s chance in hell [the documents] are copyrightable.” On the other hand, Professor Eugene Volokh believes that “[t]he argument for infringement is actually moderately strong.” Here’s what he had to say over at the Volokh Conspiracy:

Like most other documents, briefs are protected by copyright the moment they are written. The fact that they’re filed in court doesn’t waive any copyright. That something becomes publicly available doesn’t strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw’s distribution of the briefs is thus presumptively copyright infringement.

The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer.

Fair use law might be vague, but lawyers better cross their fingers and hope that Judge Rakoff thinks it’s applicable here. Otherwise, they’ll be banished to moldy basement libraries to thumb through dusty legal relics for the rest of their lives.

White, Elan v. West Publishing and Reed Elsevier Complaint [U.S. District Court - S.D.N.Y]
Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis [WSJ Law Blog]
Two Lawyers Sue West and LexisNexis for Reproducing Legal Briefs [ABA Journal]
Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? [Volokh Conspiracy]
West and Lexis Sued for Copyright Infringement for Distributing Briefs [Constitutional Daily]


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