Selling copyrighted material Legally

Copyright Lawsuit Against Thomson Reuters, Lexis Nexis Over Legal Briefs Dismissed  February 12, 2013 – 04:09 am

According to a release by Thomson Reuters, U.S. District Judge Jed Rakoff dismissed an action brought by lawyers arguing that Thomson Reuters and Lexis Nexis violated copyright by copying legal briefs and selling access to those documents on their research platforms (White v. West Publishing Corp., S.D.N.Y., No. 12-1340). No details of the decision are available yet, as the judge dismissed the action in a brief ruling on Friday while indicating his reasoning would be laid out in a subsequent opinion.


Although the legal publishing industry (in which I work) is likely happy with the dismissal because it allows them to continue to sell access to databases of legal briefs, the part of me that studied intellectual property law was pleased to see the legal industry face the same problems other industries must deal with from a broken copyright system. I am also annoyed that the legal industry may craft rules that allow itself to avoid those problems (i.e., legal briefs are ok to copy because they are super special legal things) I suspect the judge will come up with some reasoning why legal briefs are in fact special or unique (somehow making them not subject to normal copyright rules) simply because they were filed as part of a court’s public record. If this is the reasoning, I suspect such a view will open a can of worms with related copyright issues. For example, when copyrighted material is attached as an appendix to a legal brief or court opinion (as the U.S. Supreme Court did in the copyright case Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) in which the court published the very excerpts from Gerald Ford’s memoirs that were at the center of that lawsuit) does it lose its copyright protection? Does the court filings about a copyrighted work, destroy the protection of that very work just because it was part of a legal brief. At this point, I do not see any reasoning that can differentiate between the copyrighted work of an attorney from other copyrighted works that become part of a court’s records.


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