Are Legal Briefs Filed With A Court Covered By Copyright?
from the yes,-but... dept
Federal court rulings, since they're produced by the federal government are public domain materials, but a few months ago, when I was writing about a court filing, I wondered if the same applied to briefs filed by private parties with the court. As with so many things, I sent a quick email to Eric Goldman to get his take on it. He pointed out that, technically, the brief probably was covered by copyright, but there could be a strong public interest/fair use claim in being able to post it online. However, it was not entirely clear. I guess it should come as no surprise that this is now becoming a specific legal issue itself. Michael Scott points us to a story about a lawyer claiming that legal publishing services LexisNexis and Westlaw, which both publish legal filings and rulings, were violating his copyright on a brief he had filed, in redistributing it (for profit).As you know, unique content is automatically covered by copyright as soon as it's expressed in some permanent form. And considering that most filings are unique works (not boilerplate stuff), there's a pretty strong argument that they should be covered by copyright (and, in theory, a lawyer could register the works, though I would doubt that's common). This isn't necessarily a good thing and doesn't make much real sense -- but it's the sort of bizarre situation you end up in when you automatically put copyright on any form of expression. While some are arguing that since the document has been filed publicly in court, it's now public material and can be reposted, it's not at all clear the law supports that position. Of course, the law probably should make this clear. Allowing copyright on legal filings would create quite a mess. It would seem like there's a very strong public interest/fair use claim on why it should be fair for anyone to redistribute such documents (whether for profit or not), but we may soon find out what a court has to say about that.
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Filed Under: copyright, legal briefs
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I agree fair use isn't an issue because fair use exists no matter what (though the definition of what that covers can be debated).
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LN et al are profiting on the service of convenience, not the individual briefs.
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New cottage industry
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Torn
On the other hand, sticking it to Westlaw, who claim copyright on their page numbers, is just yummy.
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Re: Torn
on a side note, "most" court filings ARE boilerplate. they're bullshit like notices, certifications, and standard motions. it's the less rare, but much longer filings (briefs) that are not, and that's exactly what this guy is claiming.
the problem is that 30-50% of a brief is already in the public domain. they're heavily citing court cases, legislative notes, statutes, administrative documents, etc. the rest is arguing how it applies to this client's case, and stating the facts of this case.
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Legal precedent
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I was always under the impression that
I don't believe westlaw or lexis nexis claims ownership of court documents and only charge for time spent using their network.
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Uniqueness not required for copyright protection
Mike, content does not have to be 'unique' to be covered by copyright. Two different authors can independently create the exact same work (i.e., it is not unique) and both would have a separate copyright in that work.
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Ummm...(Raises Hand...)
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Re: Ummm...(Raises Hand...)
Um, that's not how copyright has worked since the seventies.
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Justice must be seen to be done
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Legal Briefs on-line
But then, most of their justices are just partisan clowns anyway, right?
VRP
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At one time, some of the class action shops would put copy notices on their filings to discourage other plaintiffs' lawyers from doing what they saw as free-riding.
@GeneralEmergency, MaximusLex: "copyright" has not been a verb since Jan. 1, 1978.
@MaximusLex: Bender's calls them Federal "Forms" for a reason. Merely because all documents use a form does not mean they are boilerplate. They provide the form, but you are supposed to provide the brainpower. I'm not sure what your filings look like but Christ, I hope you're not my lawyer.
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not all unique works are copyrightable
Contracts are not covered by copyright. Contracts are a written statement of the facts of an agreement between the parties and there is no "creative" aspect in drawing up a statement of facts. A contract form may be covered by copyright - there can be creative aspects of the layout, fonts used, white space, fields you can fill in, etc. You can't just copy someone's contract form without permission or license. But the text of the contract is not covered by copyright.
An argument can be made that the content in most legal briefs is of a similar nature. The only part of a brief that isn't a statement of facts or copying of public domain writings (court rulings) is the legal theory or argument that connects the citations with the facts of the case. But, again, it can be argued that this is just another way of stating the facts of the matter, which brings us back to the issue that a statement of facts is not covered by copyright.
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One need only look at the latest raft of Hollywood blockbusters to ascertain that an absence of creativity is not a bar to copyright protection.
Ergo, with respect to facts, a fact may be unprotected, but an _original expression_ of that fact does qualify for copyright protection. If one claims that no statement of facts could be protected, then are news articles, history, and non-fiction entirely unprotected? Can one reproduce and distribute the New York Times at will? Surely not.
The copyright on non-fiction (and perhaps contracts as well - which do recite facts but also fix parties obligations with original expression) may well be thin, but it is not non-existent.
The better question is whether an attorney who avails him or herself on the resources of the judiciary violates duties of candor and professionalism by claiming exclusive rights in that act.
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Are Legal Briefs Filed With A Court Covered By Copyright?
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Copyright in Briefs, Compliants, Contracts, Legal Documents
One one end of the spectrum was the "handout" prepared by an expert for a bar association Continuing Legal Education presentation, which a lawyer I represented actually had the gall to replace the first page, bill a client for preparing, and file with a court as his own work without
crediting the real author.
A professor publishes forms of corporate articles, bylaws,etc., for his state, in his school's copyrighted Law Review. No provision is made for licensing the use of these forms. They become standard in the field.
Lawyers buy Form Books, with and without citations to cases that have construed some of the language, from the State Bar andf the law book publishers. They are adapted, mor or less well, to the facts of many cases, in the course of which, contrary to the fine print license, they are widely copied onto various law firms' computers and used over and over. They are also copied by other lawyers including those on whose clients they are served.
Lawyer A adapts many of these forms, for a fee, to facilitate their use by his own, and others' law firms' secretaries and word processors. It is amazing how badly some expensive commercizl and official forms are set up for actual use when they can be made practically foolproof if the attorney will do his job. He also adds titles and an index, and some additional provisions.
Oh, by the way, the forms in the books are often, though not always, not original but borrowed from court files, etc.
I don'tthink the authors of the DMCA even gave any thougt to this, amongamny other questions.
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As things then stood, the briefs provided to the commercial services were being stored behind an expensive pay wall, which troubled him for obvious reasons.
Turning now to the lawsuit that was filed on Wednesday, many persons are quick to jump to the conclusion that it is only about what is termed here "rent seeking". Maybe so, but it seems rather doubtful this is the case. It is entirely possible, and perhaps even likely, that the motivation underlying the suit is to force the services to provide greater access to the materials, and then diverting some of the funds that may accrue for the benefit of state bar initiatives.
As Gene Volokh properly notes, this is a case that will, if it proceeds, turn upon Fair Use. The general tenor of comments at the Volokh Conspiracy is that the fair use defense is hardly a slam dunk given the commercial exploitation of the works by the service providers named as defendants.
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