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back to article Court filings are protected by copyright, says lawyer

A US lawyer has claimed that copyright is violated when courts pass legal submissions on to a commercial publisher. The lawyer claims that the US courts' behaviour undermines the hundreds of hours of work put into submissions. An intellectual property law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, said that an …

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Flame

Decline and fall.

Yes, of course. Copyright on court filings. Why not.

Ok, it won't be long until the first patent on some legal defense or attack is being issued.

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Infinite recursion

So every time an american court has a hearing and makes a filing, it's breaking their copyright law. So, that break in their law should lead to a hearing which would require making a filing. That filing would break copyright law, which would require a hearing and more filing ....

it sounds to me like the (lucky) lawyer who gets to deal with all these violations will very soon own the whole country, as there is apparently no way to stop each case leading to a new one - until the whole system runs out of money and declares itself bankrupt. However, that would also require a hearing and therefore lead to a filing, which would start another line of infinitely recursing hearings, violations and (presumably) fees owed - but not paid, seeing as how the whole legal system would now be bust, to lawyers.

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Linux

Silly lawyer

It's not called "open court" for nothing!!

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The guy has a point, strangly enough

That the briefs are not for commercial gain, but to be used in the court as a document to put forward a view, regardless of what they might be, in the gain of the client is was used with.

It wasnt supposed to be used for anothers commercial gain, I guess in a way, if they are ending up on some network where they can be searched for information to use in different trials, but by LAWYERS in those trials, there is nothing to argue against, this is normal practice for a lawyer to look through past cases, but of course, when you are passing those documents, to a company who then sells them to other people, I think you are going past the point.

Effectively the guy never argues that the court cannot use them, he argues that why should some commercial entity obtain those documents and copy them to numerous other clients, charging money as they go, without paying some money back to the person who wrote it.

sounds like an open and shut case.

It's not about the courts, it's about companies sponging and normally I dont like copyright cause people abuse it, this time, it sounds like the lawyers are REALLY BEING ABUSED in this case.

weird how the world works sometimes huh.

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Boffin

How long has this clown been a lawyer?

He "didn't know" that briefs in cases become part of the public record, and as such, ANYONE can republish them just as they can republish ANY PUBLIC RECORD? This clown should be disbarred for incompetence.

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Yep

Amazingly, what these lawyers say is true...apart from the fair use EXCEPTION for documents that are used for judicial proceedings, or alternatively if they belong to official/public acts or a judge's decision, these works constitute copyrighted material...the Brazilian law says so (as do most Civil Law systems around the world).

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Pure greed

Greed, pure greed. They've already been (very) well paid once to do the work & now want paying again.

As Court dicta effectively change Statute law, and such dicta are based in part on lawyer's submissions, this argument adds up to a tax on the citizen seeking to read the laws he / she is bound by. Just pure greed from an already very well remunerated section of society.

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really?

"I am not exaggerating when I say that I was shocked to learn… that copies of all appellate briefs served on the Supreme Court were being routinely handed over to Westlaw and Lexis,"

Seriously? This man and his firm must rank up there among the least competent law firms in the US. Not knowing about LexisNexis is like not knowing what google is for the legal world. I'm sure he has some interns there who are having a real laugh at the dinosaur of a managing partner, and then questioning if they made the right choice on working there.

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zOMFG WTF

Okay, so I could spend some time enumerating the many ways this idea is dumb dumb dumb. In short, it completely eliminates the public aspect of the public system. It would enfranchise more and more frivolous lawsuits with NDAs at the close -- and no worries of people figuring out what is going on because the original filing would be protected by copyright and not distributable or publishable (standard caveats applying.)

Sheesh.

Paris, standard caveats apply.

WARNING: Icon request follows... inspired by the comms sniffing article, how about an anonymous icon?

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Grenade

Public record, no?

Assuming the judge didn't seal the materials pertaining to the case, I don't see how this wouldn't fall into the public domain. I agree that it's probably illegitimate to sell or give the materials to a publisher who will resell them for profit given the typical behavior of publishers.

Then again, they charge stupid money over here for a copy of things codified into law like the National Electric Code. Don't want to break the law? Pay up to find out how to stay legal.

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Paid for it's publishing....

I might agree with the lawyers if not for the fact that 1) they're we;; paid for the huindreds of hours put in writing those briefs, and 2) they're well aware that those briefs, once presented in court, become part of the court record, which is in fact public domain material under the Freedom of Information Act.

In essence, it can be argued that each attorney proucing a breif in in essence being paid, in part, a one time royalty on the publishing of that information.

Arguing that your personal interpretation of the law, which may or may not have resulted in the finding innocent of your client, is not something that should automatically be applied to other cases dealing with the same or similar circumstaces or facts is a violation of due process. Whole volumes of information have been published for hundreds of years based on the findings of court cases EXACTLY so other lawuers could benefit from the results of the case for their own independedt use in other cases. This is the lifeblood of appelate law, and the information presented in court that led to that ruling is of critical value to the OTHER DEFENDENTS, and should not in any way, especially through copywrite, be kept from those defendents.

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Another IP whore

Pleadings and rulings are a part of the public record, and available to all. I wonder where they did their research on IP rulings. Don't they read common law as defined by the court cases, their pleadings and rulings in their research? Where did they think those books in their libraries, or the online resources came from? Surprised? Are they stupid, or simply unethical, venal whores?

If they want to stay private, they should settle out of court.

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WTF?

Laywers should sue SCOTUS

Give me a break...

"I am not exaggerating when I say that I was shocked to learn… that copies of all appellate briefs served on the Supreme Court were being routinely handed over to Westlaw and Lexis"

The only thing that shocked him is that no one else thought of it first... The lawyers bill out their time for hundreds an hour and now they want to double dip on the work by getting another slice from this publishing company. I am sure the lawyers used this publishing company in the past to research information on past cases.

Frankly if this is a copyright law violation, why don't they go after the ones doing it... Name the Supreme Court... HAHAHAHA!!! Good luck with that.

I vote that when you submit any paperwork as a court filing, it becomes part of the public record and public domain. The publisher isn't selling the work itself which is public domain(or should be), just the work involved in catalogging it.

So what is the claim of the lawyers anyway?? Are they saying they are licensing the briefs to the court?? What a bunch of greedy bastards, listening too much to the RIAA and their nonsense.

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Lawyers

You folks are seeing the word lawyer and turning you brain off . The point is, a third party came in took work that is in the public domain, copyrighted it and the sold it for a profit . Why is that not wrong ?

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FAIL

Not only must justice be done, it must be SEEN to be done

Forget copyright, forget ownership. Publication of such things must be made public. Don’t get me wrong, I'm not for invading people’s privacy or anything like that, but I do believe that the facts of a case should be made public. And that people should have the right to challenge those facts.

As for lawyers, well. I think this sums it up:

What do lawyers and sperm have in common?

One in 500,000 have the chance of becoming a human.

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Re: really?

"Not knowing about LexisNexis is like not knowing what google is for the legal world."

vs.

"LexisNexis? I thought that was a kind of car! Don't I drive one of those, honey?"

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Sorry to put the joke, but...

...the jury's out. Apparently, there's no legal precedent concerning the matter. The RULINGS are public domain since they are the works of government officials (judges, justices, whatever). But since BRIEFS are the result of private parties (and at least half the litigants in any case are private parties) but submitted into government proceedings, it's a gray area. It's private property in public business.

Ultimately, any matter that may involve the internal matters of the Judiciary should be dealt with by one of the other two branches...in this case, probably the Legislature, since it would likely take an Act to clear the matter up.

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Grenade

Who's Copyright?

IANAL but:

Isn't the filing "a work specially ordered or commissioned for use as a contribution to a collective work",

the "collective work" being the court record - with the person commissioning it being the lawyer's client.

ISTM that the copyright should lie with the client, not the lawyer under "work for hire" provisions.

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Stop

The guy doesn't have a point

@Chris Thomas Alpha

The only way that the lawyers are getting screwed over this in situation is this: they purposely lowered their fee to spend the hundreds of hours creating their documents with the expectation that they could resell it later. If they did not lower their fee, then all this is an unrealized second revenue stream that they just now realized someone is already doing; and instead of competing against them they figure they can just block access to it and get a mini-monopoly and double-dip.

It's very obvious they didn't lower their rates to capitalize on this since they "just found out" about it. So the lawyers aren't the ones getting screwed here... maybe their client could complain since they paid for all the stuff upfront but the lawyers don't have any to bitch about.

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Come, let us reason together....

The lawyer has been hired by the client to do the work. That would make it a work for hire, so the client would own any copyright at that point. However, the client wants it presented to the court as part of a case. I suppose there might be an argument in the case of a lawyer working "pro bono", except that the relationship is the same, he is just working for free in the public interest. I help at a museum as a volunteer, and interestingly the relationship in terms of rights and duties is much the same as employment, apart from the lack of pay.

As part of a case, the brief becomes part of the public record of the case. As such, it may be made available by the court to anyone who requests it, for research or for republication. If you do not wish your work to become part of the public domain in this way, do not submit it to the court. Once Lexisnexis or anyone else has aggregated a whole bunch of stuff they can sell copies, but anyone else should be able to do the same. Only the contribution they make in terms of arrangement and annotation belongs to them.

At least, as I see it, that is how it should work. Note that this implies that anyone else who wishes to should be able to request copies of cases and republish them to their hearts delight.

After all, there have been courts in the past where the proceedings did not become part of the public record, for instance the Star Chamber, and I think the results were not what we would really wish.

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@ Chris Alpha

"It wasnt supposed to be used for anothers commercial gain"

"it's about companies sponging"

QFT

Fair use != companies making a fat buck off your efforts. These arguments need to be made freely available on a non-profit basis.

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FAIL

Work for hire

Under U.S. Copyright law, the legal briefs done by the lawyer that you pay are "works for hire" and you own the copyright.

It's not clear that submitting such briefs to the court negates your copyright, but certainly Lexis/Nexis (and other such companies) should not be allowed to profit from a public trust.

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@kain preacher

"You folks are seeing the word lawyer and turning you brain off ."

Nah.

"The point is, a third party came in took work that is in the public domain, copyrighted it and the sold it for a profit . Why is that not wrong ?"

Again, no. The originals are (c) the original author (as always), but they are still freely viewable by anyone who requests to view them. Lexis is concentrating and indexing publicly available information. It's the concentrating and indexing that they are charging for. Not unlike your local "up-market" grocery store charging a premium for so-called "best organic, locally grown" apples ... you can do some research and drive out to purchase the same worm-ridden apples directly from the grower a couple of valleys over (request legal documents from the local jurisdiction in question), or you can walk down to the high-street and purchase them from a distributor (get the info pre-sorted from Lexis).

This suit is frivolous, at best. I hope the judge gets irritated :-)

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Gates Horns

The guy does have a point!

Either Lexis and Westlaw should supply their services for free (at the very least be run "not for profit") or they should the pay the people who wrote the documents in the first place who should also have the option to tell them to get stuffed.

A quick look shows that both of these outfits do not quote prices but work on a subscription basis with the cost "tailored to your company" or whatever the market will bear as it's more usually known.

There are some right thieving bastards out to make a quick buck involved in this one, but the guy complaining ain't one of them.

Bill, 'cos he invented snaffling someone else's useful work and then charging the world an arm and a leg for it.

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Tales of greed and desperation

The specter of Intellectual Property raises its ugly head... then proceeds to eat its own tail. Good luck!

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Linux

WOW

Have you SEEN my lawyer?

Yea Gods, wouldn't I love to get the briefs off of her !!

When she makes a submission, EVERYONE pays attention!

... and His Honour has his hands full!

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Alert

Quaint

Many comments are misinformed about copyright, legal systems, and lawyers, so such expertise gained from films and television is quaint at best.

E.g., "How long has this clown been a lawyer?" by AC ("He "didn't know" that briefs in cases become part of the public record, and as such, ANYONE can republish them just as they can republish ANY PUBLIC RECORD? This clown should be disbarred for incompetence."):

"Public record" is not the same as "public domain." (Applies also to comments by kain preacher & Eddy Ito). Merely introducing a work into the court record does not strip the document's creator of his/her copyright. Try republishing Michael Jackson's songs, or Tolkien's writings (both are in the court record, and exhaustively quoted in briefs, legal expert reports, and other places such as court opinions), and see what happens.

E.g., "really?" by Timothy Wright: " Seriously? This man and his firm must rank up there among the least competent law firms in the US. Not knowing about LexisNexis is like not knowing what google is for the legal world."

He didn't say he did not know about Lexis/Nexis. He did not know that the private (and very large) corporations republished briefs submitted by lawyers (and you will find no disclosure of such use on any of the website pages a lawyer would use in order to research; and it's rather unlikely a court provides warning or disclosure that it facilitates or even allows republication, and no court likely requires a lawyer to provide consent in order to litigate and file papers in that forum).

Re: "@kain preacher" by jake: "The originals are (c) the original author (as always), but they are still freely viewable by anyone who requests to view them."

Fairly close, but not until courts began accepting online filings, and access to filings online, was this practical. Before then, you had to go to the court clerk's office, request a specific case file, and look through the papers (or microfilm). Cases filed before that (i.e., representing the overwhelming majority of published case law) require physical site visits to review such papers. Even now, most courts that provide electronic access (including the federal courts) charge per page to obtain copies online (and require advance establishment of an account to even log in). The largest county court system in the U.S. prohibits files and documents from being taken out of the clerk's office (lawyers need a court order to take the file out of the room), prohibits scanning equipment from being used, and charges $.25/page to use poor-quality photocopiers.

In light of such practical difficulties, Gary Turner's comment ("Another IP whore": "Don't they read common law as defined by the court cases, their pleadings and rulings in their research? Where did they think those books in their libraries, or the online resources came from?") is only fantasy: most reported decisions (trial and appellate) in the federal, state, county and local court systems in the U.S. do not include any of the briefs submitted by the parties. Other than paying for online access (if offered by that court, and including per-page charges just to view a document) you have to go to the clerk's office (or pay somebody to go for you) to see the appellate file, which might (if the court has storage space going back long enough) include the briefs filed (any documents and evidence constituting the trial court record are routinely returned to the trial court clerk). It's not unusual for reported decisions to note that certain facts are unknown about an earlier reported case, and attempt to draw likely or reasonable inferences or analyze alternative scenarios, because judges don't have any better access to papers submitted in other cases than the lawyers, especially outside of their own courthouse.

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Boffin

Lawyers to Sue Lawyers?

I love the irony in this. This probably should be written up for the Guinness world record for stupidity and or nominated for a Darwin award (although since no one died it can't be a real winner).

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@Seamless

"Before then, you had to go to the court clerk's office, request a specific case file, and look through the papers (or microfilm)."

No shit, Sherlock. Did you notice my "go two valleys over" simile?

Lexis & the like pay good money to be allowed to index this stuff. But (and that's a BIG but), they don't claim to own it. Kinda like my "organic" apple seller doesn't claim to own the apple trees that he acquires his stock from ... but if you want to do the research and the legwork, you can get the same wormy "organic" apples that your local produce dealer is hawking direct from the orchard.

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The law is ambiguous?

"The law is ambiguous on whether someone else would infringe copyright if they copied your writ as a precedent for their own lawsuit," said Pinsent Masons' Connor. "The answer depends on whether or not the courts would see that as fair use being for the purpose of judicial proceedings and therefore exempt from copyright law or not."

Surely, if someone is preparing a lawsuit, then by definition it's for the purpose of judicial proceedings. otherwise, how could any lawsuit cite a precedent without infringing the copyright of whatever they're citing?

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