Tuesday, February 12, 2013

A Victory for Fair Use: Online Publication of Attorney Filings OK, Copyright Suit Against Lexis and Westlaw Dismissed

On Friday, Judge Rakoff tossed out the  lawsuit brought by intellectual property lawyer Edward White last year against Lexis and Westlaw, according to a story in Thomson Reuters News and Insight. White claimed that Lexis and Westlaw had violated copyright law by including  his copyrighted legal documents in their online services.( Edward White v. West Publishing Corp, U.S. District Court for the Southern District of New York, No. 12-1340.) 
 In a brief ruling, U.S. District Judge Jed Rakoff dismissed White's lawsuit against Thomson Reuters Corp, which owns Westlaw and Reed Elsevier Plc, which owns LexisNexis. Rakoff said that his reasoning for dismissing the lawsuit would be laid out in a subsequent opinion.

The lawsuit was initially filed in 2012 by White and Kenneth Elan, a solo practitioner based in New York.

According to the complaint, both companies had engaged in "wholesale unlawful copying of attorneys' copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits."
The lawsuit  had  originally sought class action status on behalf of two groups of lawyers: those who registered their documents with the U.S. Copyright Office and those who did not.

Last  May, Rakoff dismissed Elan from the lawsuit and struck the proposed subclass of lawyers who had not copyrighted their legal filings.White then filed an amended complaint,  which dropped the class certification request and sought an unspecified amount of damages based on the inclusion of his copyrighted legal briefs in Westlaw's "Litigator" and LexisNexis's "Briefs, Pleadings and Motions" databases.

A Victory for Fair Use and Common Sense. Westlaw and Lexis in a rare showing of unity, both claimed their actions were protected by the "fair use" exception in US Copyright Law. They also argued that their use of the documents was "transformative," because they had enhanced the documents by making them searchable.

 As I pointed out in my blog post on this litigation last year, the very fabric of legal research is  so interwoven with precedents that a holding for the plaintiff in the suit could have dire consequences:

"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 by 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?"

A logical extension of a ruling for the plaintiff would be the removal or restriction of access to lawyers briefs on Pacer, Google and other open web sources.

Happily fair use and common sense have prevailed.

Related Post:
Class action copyright suite filed against Lexis and Westlaw


  1. Your argument for how legal briefs are drafted is true of many other fields and industries (computer code, etc.), yet works in those fields get copyright protection (so why are legal briefs special?). The textual analysis you fear has already impacted many other industries (again, why are legal briefs special?). If a lawyer copies copyrighted content (e.g., an historical explanation of gun ownership, for example) into a brief does it also lose its copyright protection? I don't think fair use won - I think the legal industry is giving itself a pass from the negative effects of copyright, while not doing so for all other industries.

  2. This is a huge victory for the public domain. I'm excited to see the precedent extended to, for example, Wyoming Statutes(c).

  3. so why are legal briefs special?

    Simplifying things *a lot*, an attorney is an officer of the court, and a brief filed before a court is a government document, and so, outside copyright protection.

  4. Mikhail: Attorney's do not work for the court, the government, or taxpayers - this is not the same situation as copyright on laws, regulations, or court opinions written by judges (all paid for by taxpayers). An attorney's legal brief may be a work-for-hire and is arguably owned by the attorney, his firm, or ultimately the person who paid for it (i.e., the client). Legal briefs written by government attorneys (prosecutors, etc.) would fall under what you are claiming but not those written by private attorneys.