Are Legal Briefs Filed With A Court Covered By Copyright?

from the yes,-but... dept

Thu, Aug 6th 2009 4:44am — Mike Masnick

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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Anonymous Coward, 6 Aug 2009 @ 5:52am

The question is "for profit" and nothing else. There is no move to quash the redistribution of court files, just making a profit from them. Fair use isn't an issue there, as fair use wouldn't be stopped, just use for profit.
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Ickithus, 6 Aug 2009 @ 6:10am

New cottage industry
Soon will come the Hollywood lawyers, registering every brief, every document, that they supply in handling the affairs of their clients. Then, when the gossip rags print them, sue, sue, sue, for copyright violation.
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scarr (profile), 6 Aug 2009 @ 6:14am

Re:
For profit or not for profit shouldn't matter for a copyright issue. Something is either reproducible or it isn't.

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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ChurchHatesTucker (profile), 6 Aug 2009 @ 6:25am

Torn
On the one hand, this is ridiculous. A court filing should be public domain.

On the other hand, sticking it to Westlaw, who claim copyright on their page numbers, is just yummy.
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Josh, 6 Aug 2009 @ 6:36am

Legal precedent
Would this imply that a law firm could not plagiarize a pleading previously filed by another law firm? It is common practice for attorneys in need of a template for a pleading with which they are unfamiliar. Find one that was filed against you and copy/paste.
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Another AC, 6 Aug 2009 @ 6:38am

I was always under the impression that
Once something was filed with the court it becomes public record owned exclusively by no individual (if not it should be considering it is my tax money funding the court system)

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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Anonymous Coward, 6 Aug 2009 @ 7:20am

Re: Torn
yes, and one of the sites allegedly has a patent that covers the page numbering system for multiple reporters.

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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Sneeje (profile), 6 Aug 2009 @ 8:14am

Re:
Except that is an extreme oversimplification... the "for profit" part (as another commenter below points out) is related to the service LN provides, not the brief itself. Google, Yahoo, Bing, etc. are similar--they package available content and make profit off of ads targeted at people using the "packaging" they provide.

LN et al are profiting on the service of convenience, not the individual briefs.
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Susheel Daswani, 6 Aug 2009 @ 8:37am

Uniqueness not required for copyright protection
"As you know, unique content is automatically covered by copyright as soon as it's expressed in some permanent form."

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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GeneralEmergency (profile), 6 Aug 2009 @ 8:50am

Ummm...(Raises Hand...)
If any atty was stoooopid enough to copyright a brief for submittal to the court, the Clerk should simply deny the filing until the copyright is removed (or amended with a free to distribute license) as copy and dissemination of documents is part of the Clerks job. And some court systems have gone all electronic so even the initial input scan would violate the copyright.
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ChurchHatesTucker (profile), 6 Aug 2009 @ 11:14am

Re: Ummm...(Raises Hand...)
"If any atty was stoooopid enough to copyright a brief for submittal to the court, the Clerk should simply deny the filing until the copyright is removed..."

Um, that's not how copyright has worked since the seventies.
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Richard, 6 Aug 2009 @ 11:16am

Justice must be seen to be done
So nothing that is part of that process can be held out of the public domain.
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VRP, 6 Aug 2009 @ 12:45pm

Legal Briefs on-line
All briefs filed in the SCUS are promptly put on-line in PDF format.
But then, most of their justices are just partisan clowns anyway, right?

VRP
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MaximusLex, 6 Aug 2009 @ 1:50pm

LMAO - "Most filings aren't boilerplate." That's a good one. You haven't ever actually read very many court filings, have ya, Mikey? Because if you did then you would know that most filings ARE precisely that. The only thing that changes 99.999 9/10% of the time is the party name information/facts of the case. The rest of the pleading and/or motion is directly copied from a Rutter Guide, Judicial Council Form, or Matthew Bender. Copyrighting a court filing makes about as much sense as the rent-a-cop fools do when they stop people from shooting images of public places like statues and water fountains.
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Eponymous Coward, 6 Aug 2009 @ 3:45pm

Related story... In class actions, where class action counsels race to the courthouse and occasionally squabble with one another to represent the largest class (thereby increasing their potential fee award), there is a fear that follow-on lawyers will repurpose a complaint in another jurisdiction or to represent another class of victims, thereby "free-riding" on the work of the original complaint drafter.

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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taabitha, 6 Aug 2009 @ 7:45pm

not all unique works are copyrightable
In order for writings to be covered by copyright the writings must be "creative" rather than unique.

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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Eponymous Coward, 7 Aug 2009 @ 6:41am

The threshold for copyrightability is not creativity but rather originality, and that is a low bar indeed.

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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tripping, 10 Aug 2009 @ 2:23am

Are Legal Briefs Filed With A Court Covered By Copyright?
In my view legal briefs should be covered by Copyright. My reason behind this is that the legal submissions and legal points expressed by a lawyer is unique to him and hence reproduction of the same legal submissions by another person for preparing his own legal brief would amount to infringement of Copyright.
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Peter S. Chamberlain, 4 Sep 2009 @ 5:44pm

Copyright in Briefs, Compliants, Contracts, Legal Documents
I'm a retired lawyer whose practice only occasionally involved copyright, etc., issues, but have a lot of experience drafting documents, something one professor I knew published an article proving most general practictioners try to avoid.

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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Anonymous Coward, 24 Feb 2012 @ 7:44am

Correcting an error, the matter in 2009 involved a letter sent by an attorney to the California Supreme Court. It went no further. The letter was respectful, and was directed to prior court practices having been abandoned in favor of sending briefs directly to the two commercial services. The attorney was not making any claims that he and his firm were entitled to compensation, but only that some monies associated with the matter should be directed to certain public interest activities by the state bar to help fund their activities (e.g., pro bono support). He provided in his letter suggested changes to the rules of the California Bar that he believed would facilitate monies being allocated to the noted public interest activities.

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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