In 2009, I wrote about “Who owns your appellate briefs?” At the time, I was annoyed at being asked to file an extra unbound paper copy of a brief to be mailed to a commercial publisher so they could scan the paper and resell it to other lawyers. Since then, the Texas courts have moved toward e-filing, so the publisher and the public often have access to the same PDF.
Today, the Wall Street Journal reports about a lawsuit that turns this academic question into a federal case. The suit seeks class certification for its claim that both West and Lexis have been infringing copyright be reselling access to appellate and trial papers.(The documents cited are somewhat slanted toward trial pleadings and motions.) It seeks class certification for two classes that, so far as I can tell, cover every litigator — those who have sought copyright registration to cover court papers they filed (seriously, who are you people?) and those who have not. (( Perhaps being cute, the Wall Street Journal does not copy the class action petition for publication. Instead, it links to a copy posted on Scribd. ))
The lawsuit does not name PACER as a defendant, although curiously it does precisely what Westlaw and Lexis do here (with even less transformation of the raw source material).
The background legal question is (still) a very interesting one. The question probably comes down to the fair use doctrine, as described in this short post by Eugene Volokh, unless there is some consent implicit in the act of filing a document with a court. (( If this lawsuit gets traction, courts might consider rules clarifying the public-domain status of court filings. Such a rule could state that by signing and filing a paper, you donate whatever copyright you hold in it to the public domain. ))
The idea of copyrighting operative legal documents troubles me.
The line between “expression” and “function” here is not an easy one. Is a legal brief more like a how-to recipe, where the steps of the process are not themselves protected by copyright? Or is it more like a picture-filled coffee-table cookbook, where the unique expression is? (( Other fun questions include: Is the copyright owned by the lawyer or the firm? What if a different person is the primary author than the signatory of the brief? ))
There’s a much more sophisticated overview of the copyright questions in this article by James Peterson and Jennifer Gregor in Wisconsin Lawyer.
Nobody who is a serious advocate consults a brief bank to copy somebody else’s clever turn of phrase. They are used to discern the structure of how a legal argument works (the steps of the recipe), or to look at the list of authorities relevant to an area of law (data, not expression). Sometimes the brief bank as a whole is used to see which cases are raising a similar issue to your own. Lawyers who go to brief banks to copy passages wholesale should already fear bar regulators and angry judges, who can now discover that plagiarism more readily than ever. The threat of copyright suits seems like the least of their problems.
So do I like West and Lexis charging for access to my briefs? Not particularly. But the same rule of copyright that could stop them from reselling briefs might well stop the courts from giving the public free access, as the Texas Supreme Court already does. Copyright fears could also stunt the growth of clever new approaches to legal research opened up by having these briefs assembled into large databases.
You can consider this blog post my “opt-out” from the class action. (( Well, if the normal class opt-out rules are followed, I’m sure that a formal letter attaching an affidavit listing every brief I’ve ever filed or ghostwritten will be required, sent by carrier pigeon to a particular stoop on a New York brownstone apartment, no later than the day before yesterday. But this is at least, intellectually, my statement opting out of this class. ))