Two lawyers have filed a class-action copyright infringement suit against West and Lexis/Nexis, the two largest legal research database providers, based upon both companies’ provision of paid access to copies of motion papers filed in federal and state courts without the permission of the lawyers who wrote the briefs.Both West and Lexis include copies of motion papers, including lawyers’ briefs, in their legal research databases. As all lawyers know, West and Lexis charge a pretty penny for access to those documents. The plaintiffs argue that the briefs clearly contain copyrightable authorship, and therefore copying and distributing those briefs without the authors’ permission constitutes copyright infringement.
Perhaps the most curious thing about this lawsuit is why it took so long for one like this to be filed. The services have included access to legal briefs for several years.
Here is a copy of the complaint:
In what little analysis I have read in the media thus far, I am amazed at how many folks seem to think the infringement argument is frivolous (or at least weak). Clearly, there will be at least some original authorship in just about any legal brief. And there is no question that the briefs are being copied and distributed in their entirety. The only questions would seem to be 1) who actually owns the copyright (attorney or law firm) 2) abandonment (hard to see how that could be shown, clearly an author does not abandon copyright merrly by filing a document with a government body) 3) fair use (working through the factors does not seem like a slam dunk for the defendants) and 4) damages (was the plaintiff with a registration clever enough to get the registration prior to the first act of infringement, to preserve statutory damages and attorneys’ fees).
Another issue is how there the plaintiff without a registration (or the class he putatively represents) can bring an infringement claim . . .
The case has been assigned to Judge Rakoff, who is not known to have an expansive view of fair use in the digital world (remember MP3.com). This should be a very interesting case to follow.