There was a really interesting recent thread on the Volokh Conspiracy about whether West or Lexis selling access to appellate briefs was copyright infringement.
Both sides have something to say. Once a brief is filed, it takes on a certain public character that may inform the fair-use analysis. On the other hand, West and Lexis are just charging for access to those briefs, adding nothing of any analytical value to the text, so the fair-use argument is weak. (( Raw access is worth something. But you can’t sell photocopies of a hard-to-find book just because it’s hard to find. But see Google Books, I suppose. ))
The courts have technical ability to post PDFs of briefs on their websites, and some do. The Texas Supreme Court does a good job of this, although they only post briefs for cases that make it to the Briefing on the Merits stage.
The big barrier seems to be getting the briefs into an electronic form. Frankly, in 2009, we should be expecting litigants to do this. (( The PDF doesn’t have to arrive at the same moment as the brief, but court rules that permit it to be filed a few days later would take the pressure off even the least technically savvy lawyer.
While I’m making up imaginary rules, I would also make it a requirement (not just a suggestion) that the PDFs be word-searchable, unlike about half of the electronic briefs on the Texas Supreme Court’s website now. ))
But just last week, I was required to file an extra paper copy of a brief in the court of appeals “for the publisher.” In other words, I’m paying for a brief that will be handed to a third-party to scan and sell back to me or to others.
That smells wrong. If the publisher-generated PDFs also showed up on the courts’ sites, I might live with it. But that doesn’t happen to my knowledge. And if it did, I would bet the PDFs would be intentionally crippled in some fashion — which is what West does with its transcripts of the Texas Supreme Court’s oral arguments. (( West transcribes them, prints them out onto paper with the West logo, and then scans those documents back in so they are not word-searchable. It takes extra work for West to make those PDFs less useful to the public. And they have the nerve to slap a copyright notice on the transcript, too. ))
If West or Lexis claims copyright in some part of my brief, that will add an even more entertaining level to this silliness. I’ll let you know.