Lawyers Sue West and Lexis For Selling Lawyers’ Briefs Without Permission

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.

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