Posted by Eugene Volokh: Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248389303
A lawyer [1]says yes. 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. References 1. http://legalresearchplus.com/2009/07/23/lexisnexis-and-westlaw-violating-copyright/ _______________________________________________ Volokh mailing list Volokh@lists.powerblogs.com http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
