A lawyer says yes. [UPDATE: Here's his letter.] The argument for infringement is actually moderately strong. 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. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
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. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
Thanks to Kevin Gerson of the UCLA Law Library for the pointer.
UPDATE: A reader suggests, "I should think that the minute they are filed they become public information; accessible to all." 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. So the fact that they are descriptively accessible to the public, at least if the public is willing to go to court or to read the briefs on PACER, doesn't resolve the copyright infringement question.
Now if the claim is that the minute they are filed, they ought to become available for copying by anyone, including by commercial services, that's a perfectly defensible claim. It's just that there's no existing copyright law doctrine that clearly embodies such a rule. (There is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such doctrine as to briefs filed in court.)
One would therefore have to argue, as I mentioned above, that the fair use doctrine should be interpreted as basically embodying such a rule. It's just that the doctrine is vague enough that we can't be clear that courts will indeed interpret it this way.
UPDATE: Thanks to Erika Wayne for the pointer to the letter.
On a related subject, what about Patent Applications?
Intuitively (I have no legal understanding of the legal issues) it seems shady to allow Lexis and Westlaw to profit from another's work. After all, it isn't like they are distributing briefs for the public good.
For example, if some other author is infringing the copyright on my book, and I submit a copy of the book and the infringing book in support of a motion for summary judgment, my book doesn't become public domain. (I am guessing that I probably wouldn't be able to stop people from going to the clerk's office and reading the copy in the public file.)
You say that it is quite unlikely that the posting would diminish the market value of briefs. Do you say that because there is a relatively small market value? Or because they are available anyway to the public? I'm not a copyright attorney at all, but I'm thinking along these lines. There are practice books, that give you the basics to be included for various motions. Assuming a practice book wanted to use actual winning motions, would they have to pay royalties to the attorneys (or wold it be a work for hire and the royalties go to the client)? Anyway, obviously if there were any sort of market in briefs, posting them electronically makes them more easily accessible and therefore less valuable. I realize that there isn't really a market in briefs at this point. I was thinking along these lines because I used to go to the courthouse and get the briefing from seminal cases all the time.
Thanks, I just thought it was an interesting question.
However, Lexis and Westlaw are making commercial use of the briefs, whereas most others are making less (or maybe even non) commercial use, and that is one of the prongs for Fair Use. Would it be enough to move that use away from allowable under FU? Probably not, but still not clear.
As for the Work for Hire doctrine, I am not sure if even a written agreement would be sufficient to give legal authorship to the client. Here is the definition:(1) is presumably inapplicable, so the question revolves around whether it falls under one of the types of works listed in (2). And, I just don't see it fitting in there.
Would the rule be different for in-house counsel based on what Bruce Hayden posted? I assume that typically, in-house counsel doesn't do the litigation briefing, but if they did in certain cases, it seems like the briefing would belong to the employer/client, no? What about if there is a dispute over copyright ownership between the firm and the attorney who actually wrote the brief?
Expanding on hattio's first comment, I wonder if you gave short shrift to the market impact factor.
Contrary to your post, there does appear to be demand for a brief. Institutional clients (through their general counsel) hire firms based on the expected quality of the brief. That is the relevant market. And the expected quality of a brief is highly variable. A brief, though based on public information, is an incredibly original and creative endeavor. An effective brief must synthesize issues of style, research, and analytic argumentation. Additionally, briefs and motions are often based on proprietary templates developed by the firm. At any big firm, there is a database of previous motions and briefs, which are routinely reused in new litigation. There is (hypothetically) a "Cravath way" of writing a motion and they don't want to see that value diluted by copying competitors.
Thus, when these briefs are disseminated without authorization, low-cost firms with Westlaw access can undercut high-cost firms that put in the time and effort to write the briefs. Clients will eventually get wise, and they'll realize that there's no point in paying Cravath for a "Cravath motion" when a lower-cost outfit can produce a similar product simply through mimicry.
That's not to say that the fair use argument falls apart. The factors are malleable and these facts are hard to distinguish from the PACER situation. However, I believe the existence of a market makes the fair use defense more difficult to assert.
.
Does that include briefs by the prosecution? Briefs in defense of federal claims?, etc.
On another note, over the years I have amassed quite a collection of briefs from other lawyers- some from cases I've worked on, and others that I've downloaded from Pacer or various other sites. I keep them for help on both stylistic and substantive points. Am I an infringer?
Is any of that relevant to the legal question? Maybe not in a strict sense. But PACER and related systems are great public works in comparison with the type of services that W&L provide in that area (and I'm not including their core services for case law, etc.).
For instance, I can hire a researcher/courier to go down to the county courthouse and retrieve all briefs filed for a particular case during a particular month. And the courthouse charges $1 per page to make a copy. I guess I do not really see how this is any different than Lexis/Westlaw other than they're cruising down the electronic superhighway instead of paved city streets.
This argument could fall apart, however, if the end-user (i.e., lawyer) is deemed a direct infringer for lack of fair use and then I suppose Lexis/Westlaw might be on the hook for indirect infringement?
COPY OF LETTER
Regarding fair use, the Princeton University Press case cited in the letter makes it clear that a third party may not simply copy a publicly availble document and sell it for a profit, even where an end user's use is protected by fair use.
The notion that Lexis and Westlaw are not impairing the market for briefs is undercut by the fact that Lexis and Westlaw have conclusively demonstrated that there is a large market for the use of briefs as secondary sources, and that market is clearly impaired by Westlaw and Lexis's infringement. Indeed, how is a site like Briefreports.com—who obtains consent for the briefs it sells—supposed to compete against Lexis and Westlaw, who simply copy and sell whatever briefs they want, without bothering to get permission?
As for the notion that these are public documents, the Suffolk County case makes it clear that a document required by law to be made available to the public by a government agency does not lose its copyright protection, and that a third party may not simply copy it and sell it to others.
Finally, the copyright issues are really only half of the story. The other half is the fact that the Court requires litigants to file extra copies of their briefs, which the Court then gives directly to Lexis and Westlaw. These briefs were originally intended to be distributed to county law libraries, not given to private companies for their own profit.
In any event the letter also suggests a solution which, I think, could satisfy those who want royalties for their briefs, as well as those who want greater public access to the briefs, while also having the potential to benefit legal services.
I know it's nicer to go after a single deep pocket, but perhaps this would simply be a situation where that is not viable.
Easier still -- the Courts could require, as a condition of filing, a non-exclusive grant of license.
Lexis and Westlaw actually make copies themselves (before anyone orders them) and offer those copies for sale to whoever wants them. That is not the m.o. of a mere courier.
Recenly there was a appeals court (9th Cir.) decision in the TurnItIn case. In that case students sued TurnItIn, a company that checks papers for plagerism. The students alleged that TurnItIn violated their copyrights in the papers by making copies of all papers turned in and using them to check against future plagerism.
The case revolved mostly around the fact that the students had agreed to the click-through licenses (even though they had no choice but agree to them if they wanted to get papers graded for school).
The court did go through the Fair Use analysis (one plaintiff didn't agree to the license, and got a password from someone else, raising a CFAA claim). The court there found that despite the fact that TurnItIn used the entirety of the students papers, used them entirely for commercial purpose, fair use excused their infringement. The court concentrated on the transformative nature of the use – from a paper to data to detect plagerism.
That same transformative use isn't as clear here, but those two factors that weigh heavily against fair use have been found to not be disposutive before.
A little more (links mostly): here.
Of course, the above is when we just look at the reproduction right under 17 USC 106(1). Several others may be implicated, including: creation of a derivative work (106(2)), distribution (106(3)), and public display (106(5)).
I researched this issue years ago and agree that the copyright issues are not frivolous. Moreover, I can certainly understand lawyers' anger at LEXIS being able to copy the briefs and the lawyer not being able to access other briefs. That concern has been mitigated to some degree by PACER but it is a real concern that LEXIS is able to make money off of others' work product.
Many briefs are themselves composed of parts taken from long chains of other briefs, until the ultimate author is lost in time.
I could see this being a problem with things like long quoted chain cites and such. I've seen a few where the actual in-line citation was kept two or three levels deep.
As for the comment above about courts making materials available, I could still see massive value in a consolidated database. Much easier to search one provider than to have to check all the circuits and state courts on a regular basis for new material.
Interesting - Napster would seem to apply here. If one assumes a lack of fair use here, L&W are clearly centralized services inviting contributory infringement, and are even profiting from it (something Napster never managed).
Established custom has become to treat briefs, once filed, as though they are in the public domain.
It appears that established custom in music is heading the same direction. I wonder how much cross-pollination in legal arguments will happen here.
Furthermore, while some lawyers might well dispute this, I view briefing as primarily factual, not creative. There is some creativity involved in making arguments, particularly arguments for extending existing law (rather than simply arguments supported by existing law). Fact-intensive work is farther from the "core" of copyright protection than purely creative work. If Connor persuades the court that briefing is primarily a creative endeavor, his infringement claim will be stronger. However, I have seen extraordinarily few briefs that qualified as great works of literature ... and the few that made the attempt to do so generally weren't more effective for the effort.
Chris Garvey has said to me that the proper form of protection of such useful articles -- taking the rule book to be a description of a process rather than the product itself -- would be patent if they were protectable at all. They're not literary works in the spirit of copyright law, so the particular form of expression (i.e. the wording) is not what they really care about anyway. There are only a few ways to express certain things conveniently, and when that's the case supposedly the wording can't be protected by copyright any more than the content of the statements can. If the rule books were worded in some fancy way like poetry, that could be copyrighted, but then they would lose utility.
If I have time, I'll find the cases and add a link, but maybe EV has already blogged on those in past years and has them handy?
Er, that's helpful. Did you even bother to read to the end of EV's post, let alone read any of the comments?
If someone comes up with a novel way of doing something that works better than what was done in the past, every law firm will blatantly copy the documents.
I believe that the fact that anyone who wants a copy of the brief has the right to get a copy from the court, without any payment to the author, indicates that the Westlaw use is fair use.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
In the case of legal briefs, those briefs must be written and filed of necessity for the court case, and therefore will be written regardless of whether their authors retain copyright in them. Thus, they should not be granted copyright protection.
If Prof. Volokh is right and review of these documents is fair use under copyright law as it exists, then there is no need to analyze the issue further -- the putative owner of the copyright (the law firm) would either lose because they are claiming copyright on a public document, or would lose because of fair use.
When an attorney prepares a document in his capacity as a licensed attorney, he is acting as an officer of the court. Therefore he is a government agent and copyright cannot attach to his work.
Of course, this would not address the matter of pro se briefs.
As for publication in the past, you could always claim implied license. Because everyone knows that the court will reproduce your briefs, and that it will send them along to Westlaw, you implicitly grant a license for those purposes.
------
I think this misses the point. Given that the briefs are freely available on PACER for $.08 per page, it is hard to argue that availability on Westlaw or LEXIS has a significant marginal effect on the market
I don't think it does miss the point. Given the fact that Lexis charges $5 per download of a brief, there is clearly a viable market to be damaged despite the existence of Pacer. Furthermone, even if the market value were limited to 8 cents per page or less (it is not), that is still a market value that can be damaged, and every sale by Lexis or Westlaw is a sale that might have been made by an authorized provider with appropriate royalties to the author (or legal aid or the courts depending on who the author designates to receive the royalties).
Furthermore, the letter is about briefs submitted to California courts, which are not even accessible on Pacer to begin with.
If the notion is that by submitting a brief to the court it becomes a part of the law of the case, such that the particular expression used by the attorney in the actual brief merges with the common law that results from any opinion that is issued in response to the brief, I think that is a stretch. The Court in Veeck addressed the question of when privately prepared material merges with the law so as to lose copyright protection. (293 F.3d 791.) Veeck held that where the privately created material (i.e. a model code) is submitted for the purpose of being enacted as law, and actually IS enacted as law, it merges with the idea of the law, and it can be freely copies as the law.
Veeck distinguished cases involving other privately prepared documents, such as blue book citation standards, red book car value guidelines, and the AMA's medicare coding system, noting that such documents retain their copyrights despite the fact that they are referenced in the law, and required to be followed, because they are not actually enacted into law, and thus their particular expression does not merge with the law itself.
Briefs do not carry the force of law, unlike a published opinion, and in many cases they are not even referred to in the opinion. No one is required to follow or do anything set forth in any appellate brief. If the text of an appellate brief was used in an actual opinion, that portion of the text appearing in the opinion would merge with the law, and could be copied AS PART OF THE OPINION, but under Veeck, I think it would be a huge stretch to find that a brief, in and of itself, is so intertwined with the law that it merges with the law, and thus loses its copyright even where it is not actually incorporated in an opinion.
There is one and only one way to express the arguments made in that case -- as the parties made them. There is no sensible way to figure out which words are sensible and which words are merely ornamentary. Thus, the merger doctrine applies.
A brief is a purely functional document whose sole purpose, qua brief, is to create a specific effect. The very same content may still be protected for other purposes, but qua brief, it's purely functional, and merger means no copyright.
lawyers are public officials (i.e. officers of the court); their writings are covered by the same copyright laws as judges' opinions...that is none
In the case of the model codes, they are specifically intended to be enacted *verbatim* into the law. When a model code is enacted it merges with the law itself-- in other words, the *particular expression* in the model code cannot be separated from the law, because it IS the law. A brief is not intended to be enacted into law or incorporated in an opinion verbatim. A brief makes abstract arguments about what the law should be, and, contrary to your claim, those arguments most definitely *can* be expressed in many different ways.
If, for very simple example, I argue in a case that Roe v. Wade should be upheld under stare decisis, I could say:
"Pursuant to stare decisis, the Court's long-standing ruling in Roe v. Wade should be upheld."
Or I could say:
"Under the doctrine of stare decisis et quieta non movere, the Court should refrain from overturning the long-settled holding in Roe v. Wade."
Or,
"This Court has long recognized the doctrine of stare decisis, under which the Court is loathe to reverse long-standing precedent. Under this doctrine, Roe v. Wade should be upheld."
I could go on all night. In the case of model code, the particular expression used is special because it IS the law, while in the case of brief, there is nothing special to the general public about the party's particular expression. It is NOT authoritative, and 50% of the time, it is not even persuasive. Accordingly, there is no compelling reason the public must be given an unfettered right to copy that particular expression (as opposed to the arguments embodied in the expression, which always may be copied).
It is special because it is the argument. The argument is not some abstract concept that the brief describes -- the brief is the argument.
Of course, but all three of these are the same work as well as the same words. So this is no help if you're claiming a different work could make the same argument. (For example, if you claimed that changing one of these to the other entitled you to copyright protection in your derivative work, you'd be laughed at. Making a distinct work that makes the "exact same argument" is a distinctly non-trivial, and possibly impossible, task.)
Submitting a legal brief and asking a judge to rule based on it is equivalent to submitting a model law and asking a legislature to pass it. You make it a part of the public record and a part of the law-making process. That process must be open to the public and asserting copyright is simply incompatible.
The estoppel and public interest arguments don't apply to the case of repair manuals and architectural plans. And architectural plans are not just intended to produce a particular effect (no more than a play produces the effect of seeing the play).
And I would argue that if there were an analogous case involving car repair manuals, I would reach an analogous result. For example, if there was significant public interest in how a particular repair was documented for purposes of understanding some intended public-affecting result of the documented repairs, copyright in the document would yield for that purpose under the merger doctrine.
Correct. If we examine the history of the expression we find that "officer of the court" includes anyone with sworn duties in court, including attorneys, witnesses, and jurors. But only for the duration of a court session. Not when merely doing preparatory work. And there is another difference involved. The duty of judges and jurors is to the constitution. The duty of witnesses is to the truth. The duty of attorneys is to their clients. Thus we have a distinction between public and private agents/servants.
But by this reckoning jurors are properly regarded as "judicial officers" and required to take a oath to "uphold" the constitution, not merely to follow the instructions of the bench.
No resolution of the dispute was achieved, which is documented here (scroll down). But I came away with an impression of a California Supreme Court that was at best loose with the law.
If only Congress or the Supreme Court would! Congress has made a mockery of "limited Times" by repeatedly extending copyright every time the first Mickey Mouse cartoon nears its expiration date, and the courts have refused to enforce the clause.
As for the explanatory prefatory clause, I expect even less. The analagous clause in the Second Amendment is probably a legal nullity since Heller. "To promote the Progress of Science and useful Arts" could be interpreted to require at least a rational basis that the copyright laws served that purpose - and I'd like to see someone trying to show that a movie studio's decision to invest in a movie hinges on whether it can collect royalties for 28, 50, or 100 years, or that an author's decision to write another book hinges on whether his grandchildren can fund their retirements with his royalties 70 years after his death!
But if the SC did that, they'd also have to revive the Miller decision's implication that "arms" in the 2nd Amendment includes at least the common individual weapons of the modern soldier. That is, just by passing an instant check that I'm not in the FBI's database as a felon, I should be able to buy a military-grade weapon[1] just like the M16 I trained with in boot camp 30 years ago - only new rather than worn out. (For those unfamiliar with guns or current gun laws: under the NFA of 1934, as amended in 1986, to buy a full-auto assault rifle or other military weapon, (1) I have to pay a $200 license fee, (2) the dealer has to store the weapon while I wait for an FBI background investigation that takes much longer than was required for my Top Secret clearance, and (3) the weapon has to be manufactured before 1986. Which makes it so expensive that the outrageously high license fee does not matter. The "assault weapon" kerfuffle does not concern military weapons, but rather semi-auto rifles, functioning similarly to many hunting rifles, but made to look like military rifles.)
[1] Far off topic here, I don't want to be able to acquire a machine gun or grenade launcher this easily - but the Constitution should have been changed by amendment, not by the lower courts grossly misreading Miller for seventy years, and then the Heller court overturning it while pretending not to, and just making up a self-defense definition of "arms".
"To promote the Progress of Science and useful Arts,"
reflects a social contract theory of patents and copyright. While the authors of the Constitution generally believed you have a natural right to your physical property, most of them saw no natural right to stop others from copying your work, other than by never revealing it to the public. So to encourage people to create and to publish their creations, the copyright clause allows Congress to create an exclusive right to profit from copying them for a limited time, after which they revert to the public domain. Like any contract, this is an exchange of items of value: the copyright is traded for the public availability of the work.
When the work was not for publication, the creator is not holding up their end of this deal and should not get copyright. But good luck getting the courts to enforce this!
No, it's not. It just isn't. A model code is meant to be enacted as law. A brief is NEVER intended to be enacted into law, to become law, or to even be incorporated in the law.
A brief is more like a political speech, editorial or law review article, in that it merely attempts to persuade those who have the power to change (or at least authoritatively explain) the law. I notice that you distinguished the cases of auto repair manuals and architectural plans, but did not have any explanation as to why the other examples are entitled to copyright protection but briefs are not.
Furthermore, in Veeck, a model code only may be copied if, and to the extent that, it is actually enacted into law. If briefs really were the same as model codes, wouldn't only the winning brief lose its copyright?
"You make it a part of the public record and a part of the law-making process. That process must be open to the public and asserting copyright is simply incompatible."
It IS open to the public, and asserting a copyright is not incompatible with that. See the County of Suffolk case. A document can be available to the public from the courts and other public sources. That does not give private third parties the right to copy and sell it for profit.
In any event, I remain convinced that a fair reading of Veeck allows for copyrights in anything that is not actually enacted as law, and briefs are not enacted as law. Unless you have some specific language from Veeck or some other case to the contrary, your arguments are not going to be persuasive (to me, anyway).
Veeck did not say that the model codes could not by copyrighted or that the copyright was somehow lost. What it did say is that you cannot enforce your perfectly-valid copyright against a use for which nothing but that work would suffice.
Merger does not just apply to model codes enacted into law. Merger applied, for example, to the program at issue in Static Controls.
Suppose I write a limerick. It's completely entitled to copyright protection. Unless fair use applies, you cannot publish it in a collection of poems. Now suppose I make that limerick the password to my web site and charge $10 for the limerick to get into the web site. If you publish my limerick for the purpose of getting into the web site, I cannot accuse you of violating my copyright.
For the purpose of getting into my web site, only that exact limerick will do. The form and function are merged. No other work can serve that same purpose.
Why is the same not so of a legal brief? What other work will serve the same purpose, if the purpose is understanding the court's ruling?
Moreover, neither the briefs nor the model codes are "functional" in the way that a password, the code in Static Controls, a lamp, (or any of the other items that are typically subject to the merger doctrine) are. The exact wording of a brief is not necessary to make anything functional happen in the real world. The model codes in Veeck were not subject to merger because they were necessary to perform some physical function, but because they merged with the law, which is uncopyrightable.
Veeck's merger analysis was two part. First, the court cited Banks and BOCA for the proposition that the law, as such, cannot be copyrighted, and must be free for all to copy. It then held that merger applies where a copyrighted model code is enacted into law, because courts routinely emphasize the importance of the precise wording of the law, so that the law cannot be expressed apart from its precise wording: "The codes are "facts" under copyright law. They are the unique, unalterable expression of the "idea" that constitutes local law. Courts routinely emphasize the significance of the precise wording of laws presented for interpretation." Thus, a person could not state what the enacted law is, except by quoting it verbatim (and that law is uncopyrightable): "Veeck could not express the enacted law in any other way."
The court concluded "When those codes are enacted into law, however, they become to that extent "the law" of the governmental entities and may be reproduced or distributed as "the law" of those jurisdictions." Because the uncopyrightable idea of the law is susceptible to only one form of expression, merger applies, and the expression is excluded from the Copyright Act.
Here, you are missing the first part of the analysis. When a brief is filed it isn't enacted into uncopyrightable law, and the expression in the brief doesn't "become" anything other than one private party's argument.
If your position is that the precise words used by a litigant in a particular appeal are uncopyrightable in the same way that the law itself is uncopyrightable, I don't think there is any authority to support that position. The reasons cited in Veeck for why the law itself is uncopyrightable just do not apply to a private party's arguments in an appeal. Not to mention, your merger argument begins to look a little circular.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.