Lawyers as Plaintiffs in Copyright Suit Against Lexis and Westlaw

The story is here.  As I understand it, West & Lexis make available briefs, etc., that they somehow acquire (Pacer?).  I have used the database and it is a great resource.  Lawyers are now bringing a proposed class action suit to stop this practice.

I don't know enough about copyright law to know if this is fair use (it's commercial use, but at the same time it's not going to lower demand for a brief somebody wrote, because there is none).  But the suit if successful certainly is a way to make it more expensive for clients to have work done for them, and it has the potential to retard the development of the law.

Thoughts?

Comments

[Rick Underwood]

Years ago I defended a 1983 case. There were multiple defendants. I moved for summary judgment with an extensive brief in support. One of the lawyers for a co-defendant asked if he could borrow from the brief. I said sure, and he filed an identical brief with his name on it, which surprised me, to say the least. The motion was granted, so I didn't care. Everyone thought it was amusing, since it was obvious what he had done. I always wondered what he charged his client. In any event, there may be a market for briefs someone else wrote. I am not making this up.

[George Conk]

I have always assumed that by filing a document with the court you made it a public record, with corresponding rights of public access and copying - unless you obtained a protective order.

And sure there is a market for briefs. I was hired and wrote a model brief for ATLA-NJ about 15 years ago which they sold for $150 to members. It reviewed legislative history and argued for a pro-plaintiff position on the Automobile Insurance Cost Reform Act. It was used in hundreds of cases arising from automobile accidents in New Jersey. Eventually the arguments prevailed with the guy who hired me at the podium.

[Joshuamking]

One word I didn't see in the main article: CLIENTS. These pleadings are written for, and paid for by, CLIENTS. And speaking from the perspective of a client, what I see here is lawyers far more interested in navel-gazing and admiring their own prose than providing the best service and outcome to their clients. Disgusting.

[John Steele]

George, that's how I always felt about it. In my mind there was an implied license to borrow from contracts, from law briefs, from licenses, from cease and desist letters, tolling agreements, waiver letters, etc. I don't know if the copyright laws accord with my intuitions.

I seem to recall some cases where courts were very unhappy with wholesale copying -- where the second lawyer's only original contribution was his or her signature block after 10-20 pages of literal copying from someone else's brief. But I recall a case where I had won a motion on equitable grounds and the opposing lawyer used a couple of my paragraphs verbatim against me later in the case. I thought that "turnabout was fair play."

[George Conk]

John, the Copyright Act says that copyright attaches when an original work is "fixed in a tangible medium of expression." So a brief is protected from the moment your computer saves it.
But since long before the internet briefs have been reprinted without permission. I recall a reference series that reprinted the briefs in major cases before the Supreme Court. And, of course, now you can go right to the Supreme Court's website and download every brief that is filed in the court today.
I saw several of the briefs that copied mine. In the circumstances of my ATLA model brief the lawyers typically just added a statement of facts and copied the rest - with no attribution to me. I had licensed it to ATLA, so I had no gripe. I thought some of the lawyers should be embarrassed by their minimal effort to fit their the facts to the legal argument - but the facts were not particularly relevant to the legislative history and statutory interpretation that were the heart of the "model brief" I had written.

[David Hricik]

They're having a debate on an IP list I'm on, just starting up now, and I'll watch to see if there is anything interesting. It does seem to me to increase costs, etc., and retard the law, but I guess you could say copyright does that in its own way in lots of areas.

There's a similar thing going on in the patent field, where people are claiming that a patent applicant can't file a copy of an article with the patent office -- though required to do so -- without paying royalties.

(c) David Hricik 2012, all rights reserved. TM.

[John Steele]

@George: yes, thanks, I'm familiar with that law. My question deals with implied licenses. Take for example a situation where you sign a bank loan contract and, having looked it over carefully, decide that many of the clauses are well written and useful for other contracts you enter into from time to time. So you incorporate them verbatim into other contracts.

[George Conk]

John, we used to use something called "hot docs" for leases. We paid for them. But we pretty quickly found that we were modifying them and merging them into leases that merely incorporated substantial elements of the "hot doc". I think that one could conscientiously excerpt particularly well drafted provisions and incorporate them in your own drafting.

Lawyers have for centuries copied what others have done, so maybe that sort of copying has a common law pedigree that supports a broad reading of the fair use provisions of the Copyright Act.

[David Hricik]

I also was just thinking - isn't it a work for hire? If so, then any copyright belongs to the client. It might depend on who wrote it, etc. I don't know.

But on the ethics side, the impact on the growth of law and the increase costs on clients seems to be the only issue I can see.

[George Conk]

Because lawyers control the method of carrying out the work I don't think the client owns a creatively-drafted contract or brief.
But the world of "standard" forms is different - they are just publishers. In research for my business torts class I just cam upon the policies of hte International Derivative Securities Association. When you elect free download you meet a form that requires a promise that if you use it at a CLE event or educational course you will pay $1,000 for each event! And you have to give them your credit card.
http://www.isda.org/publications/pdf/FAQs-on-Copyright.pdf

[John Steele]

It's an interesting topic. I also have an intuition -- completely unsupported by any law I know of -- that if the bank (or anyone else) asks me to sign a contract and I do so, then I've become an owner of the contract. It's my contract no less than it's the bank's contract. If it's my contract I can re-use it, etc.

[David Hricik]

I like that, John.