White’s copyright claim can be traced back to his dismissal as class counsel in the case of Beers v XTO Energy, Inc. No. Civ 7-798-L in the Western District of Oklahoma. White was afraid that the "newly proposed class counsel or other lawyers would use his work product” He registered copyrights on the Summary Judgment Motion and the Motion in Limine briefs which had been filed in the Beers case. However prior to registering the copyright he had filed the motions with the court using Pacer’s electronic filing system. Westlaw and Lexis both subsequently retrieved these documents from the Pacer system and added the documents to their legal research systems. Once a document was filed on Pacer it became available to the public online and in the court clerk’s office.
Rakoff's Memorandum cited the "Fair Use" defense in Section 107 of the Copyright Act of 1974 providing the rationale for the dismissal. The memo also stated that under the facts of the White case, 3 of the 4 factors favor “fair use” and one factor was neutral.
1.The purpose and character of the use. Citing Campbell v Acuff-Rose Music, Inc. 501 US 569, 578 (1984) the court found the Lexis and Westlaw’s use of White's briefs was transformative. White created the briefs to achieve a specific outcome for a client. Westlaw and Lexis used the briefs in creating an interactive legal research database. The memorandum states that the editorial processes undertaken by Lexis and Westlaw in “reviewing, selecting, converting, coding, linking and identifying the documents add something new and change the character and purpose of the work.
2. The Nature of the copyrighted work. Fair use is more likely to be found in factual works than fictional works. The memorandum states that "Briefs are functional presentations of fact and law.” Since the briefs were filed with the court it is harder to claim that they are "unpublished."
Isn't It Really Just A Question of Precedent?
I agree with the outcome of the White case but I find the Court's analysis somewhat strained. I think the more obvious reason to dismiss the copyright claim would be based on a public policy rationale. In the common law system a completely original brief citing no precedent would be pretty useless and unpersuasive. All legal briefs are inherently "derivative" and It serves the " interests of justice" for the briefs and legal arguments which are made to courts to be available for public review.