Wednesday, February 22, 2012

Class Action Suit Filed Against Lexis and Westlaw for Copyright Infringement

A class action lawsuit (12 CV 1340) was filed in the Southern District of New York today by Edward White and Kenneth Elan and their respective law firms  against West Publishing  dba West and Reed Elsevier dba Lexis.I know you are thinking:  law review articles, chapters of legal treatises, a book of lawyer jokes,... poetry for lawyers...Wrong. The plaintiffs are claiming copyright in the legal briefs, including things like witness lists and jury instructions which were submitted to courts.

Lexis and Westlaw have been collecting publicly filed briefs and putting them online for years now. The plaintiffs claim that by copying the publicly filed briefs into their databases and making them searchable for a fee, Lexis and Westlaw are infringing their copyrights.

Call me a cynic but aren't  a huge chunk of the legal opinions written in this country essentially "derivative works" based on other peoples arguments and analysis? Don't judges (or their clerks) take whole paragraphs from briefs and drop them into opinions? Don't lawyer's draft briefs selecting text from judicial opinions and legal memoranda?

Is the whole system of common law precedent to be pulled from Lexis and Westlaw and put through a textual analysis to see who had the first "original expression" of various issues?

Wait I have a better idea, Lexis and Westlaw can take the plaintiff's briefs and run them through a textual analysis - the kind they use to detect plagiarism in college term papers. It will be interesting to see where the plaintiff's may have derived their briefs from.

Thanks to Patricia Barbone for tipping me off to this filing.


  1. From Thomson Reuters (Carswell) Statement of Defence in the Canadian copyright litigation: "[Defendant] knew and accepted that any lawyer could obtain a copy from the Court and use it in their work, including reading and copying the document itself, or the arguments, skill, creativity, rhetoric, ingenuity, persuasiveness or ideas that it contains."

    The problem is that whenever someone is making over $100 mm on reselling (albeit enhanced) publicly filed documents, some lawyer is going to eventually decide to try and get a piece of the pie.

  2. I would question who owns the actual copyright. Wouldn't court filings and EDGAR documents be considered "works for hire"? If so, then the attorneys/law firms wouldn't have a claim - their clients would.