Over the years we’ve written a few times about lawyers trying to sue Westlaw, LexisNexis and Thomson Reuters for aggregating public court legal filings, and then reselling them. As we’ve noted in the past, rulings by the court (or filings by the government) are in the public domain, but filings by lawyers representing other parties likely have some level of copyright protection over them. However, there is an exceptionally strong fair use claim to being able to make use of such public filings. Earlier lawsuits, such as ones we wrote about in 2009 and 2010 appeared to fizzle out, but the one we wrote about in 2012 actually went to a federal court in New York. A little over a year ago, we wrote about how the case was easily dismissed on summary judgment, with a promise to issue a full ruling at a later date.

It took nearly a year and a half, but Judge Jed Rakoff has finally gotten around to explaining fair use to the lawyers in question, Edward White and Kenneth Elan. The judge goes through the standard four-factor fair use analysis, finding three of the four factors favor fair use, while the one remaining one (the amount of the work used) is neutral, because the defendants copied the amount necessary for their transformative use. And, yes, the court is clear that aggregating these works (in whole) and reselling them is transformative:

The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool…. Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add[] something new, with a further purpose or different character” than the original briefs…. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”…. Thus, on net, the first factor weighs in favor of a finding of fair use.

The “nature of the work” is easily a fair use win, given that the documents are publicly filed court filings. And then on the fourth factor, concerning the impact on the commercial market, the court rightly notes that it’s unlikely that these collections act as any sort of substitute for the original legal work.

In this instance, West’s and Lexis’s usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney’s clients. White himself admits that he lost no clients as a result of West’s and Lexis’s usage…. Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them.

The court makes one other important point on this factor. Often, we hear people claim that even if there has been no attempt at licensing, the use might preclude a future licensing market. But here, the judge rejects that idea as well:

Although White argues that Lexis and West impede a market for licensing briefs, the Court finds that no potential market exists because the transactions costs in licensing attorney works would be prohibitively high.

This is just a district court ruling, so it doesn’t bind anyone else, and it’s unclear if the lawyers will appeal. But it’s always nice to see a nice win for fair use.

The whole opinion on the next page….


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