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.
Class action copyright suite filed against Lexis and Westlaw