"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law

Wednesday, February 29, 2012

Copyrightability of Briefs Filed in Court: Fair Use?

Recently, as many other blogs have reported, two attorneys have filed suit in the Southern District of New York against West and LexisNexis arguing that their [Wexis's] distribution of briefs filed in court [and acquired by Wexis with the courts' complicity] constitutes copyright infringement.

I believe the stronger argument against a finding of infringement is that, once filed, such documents do not just become "publicly available", as Eugene Volokh argues, but they become a part of the public record, and, as such, lose any copyright that may have attached when the document was first created. However, I am not a copyright expert, so let's examine the argument that seems to be getting the majority of play: that (somehow) such use of the otherwise-copyrighted briefs constitutes "fair use".

Fair Use

"Fair use" is an affirmative defense against the charge of copyright infringement, and is covered by 17 U.S.C. § 107 (2006). As the text of that statute states, there are two tests that the particular "use" must go through to determine whether such use was "fair".

The First Test in Fair Use Analysis

The first test, spelled out in the main text of the statute, is that the court must examine whether the use was "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. . . ." If the use falls into one of those categories, then the court can proceed to examine whether such use was "fair"; however, if the "use" is not on the list, then the "fair use" defense should not be available to that defendant. Clearly, the "use" of the documents at issue by Wexis is "to make money", a completely commercial use that is not on the list.

The fact that the briefs made available by Wexis CAN be used for criticism, comment, news reporting, teaching, scholarship, or research does not resolve the issue for two reasons. First, those uses are what the customers of Wexis are engaging in, not Wexis (and, furthermore, Wexis customers are not the defendants in this case). Secondly, considering that neither West nor LexisNexis (through their respective products) restrict access to their briefs databases to just news agencies and educational institutions, the fact that the briefs CAN be used for those purposes is not dispositive. The briefs can just as easily be (and probably are) used as templates, as shortcuts for other attorneys to rely on in drafting their own briefs, and possibly even for wholesale copying of particularly effective language.

The Second Test

Even if the court were to somehow impute the uses of the Wexis customers onto the Wexis defendants themselves and allow them to pass the first step in the fair use analysis, the court would then need to examine the four factors listed in the statute:
"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107 (2006).

Wexis would clearly lose factor 1 (the purpose and character being of a completely commercial, for-profit, nature) and factor 3 (considering Wexis provides the complete (i.e., 100%) brief). Depending on how the court interprets factor 4, Wexis could get crushed by it as well due to their own actions: If there is no potential market for or value of these briefs, then why do they go through the trouble of acquiring them, and why do they charge so much for those databases?

Factor 2 is the only place Wexis can win (if they get that far). But to do that, they have to argue that the briefs, once filed, become a part of the public record and, as such, lose their copyrights.

Wait a minute . . . Isn't that where we began?

Thursday, February 23, 2012

This Day in Legal History -- Four States Admitted to the Union

On this day in legal history four states were admitted to the Union: Montana, North Dakota, South Dakota, and Washington. That’s a lot of states at one time, and it wasn’t easy.

Article IV, sec. 3 of the US Constitution establishes Congress’ power to create new states. The procedure for new states usually involves the potential state starting out as a territory, although some states became states without ever being territories, like California and Texas, and some states remained territories for years before becoming states, 60 years in the case of New Mexico. The usual procedure was for Congress to pass a resolution calling on the territory to draft a constitution. Congress would then approve the proposed state’s constitution and pass an enabling act to admit the state, or delegate the admission to the President by use of a resolution. In some cases, like the admission of these four states, the process, got, a little more politicized.

During the 1880’s the western territories began to become states, but it was a question of when and in what form their statehood would be granted. It was well known in Congress that the Dakota Territory leaned Republican, which is why Senate Republicans had a plan to divide the state and solidify their power. The Democratic House would allow Dakota in as one state not two. Republicans blocked all other state admissions until they got their way. A great deal of jockeying ensued over the next few sessions of Congress with the admission of a Democratic Montana being balanced against a Republican Washington with the result that Dakota eventually went ahead and elected a state legislature. The election of 1888 forced both parties’ hands. Republicans took control of the Presidency and the House (they already controlled the Senate), leaving the lame-duck House Democrats potentially having no successes to demonstrate. The pressure to get something done compelled the House Democrats to cave; Dakota would be split into North and South, Montana and Washington would be admitted, and Democratic New Mexico would have to wait.

The states were finally admitted (see 25 Stat. 676), but not without a long list of conditions as part of the enabling statute. The law mandates things like public schools “free from sectarian control” (fear of encroaching Mormons from Utah) and restrictions on the sale of land granted to the state by the federal government. Upon the passage of this law and its signature these former territories had become part of the United States.

The process of a territory becoming a state may seem quaint and out-dated, but it is still very much alive. There is always talk of Democratic District of Columbia becoming a state, often in exchange for solidly Republican Utah being granted another seat in the House of Representatives, so the idea of new states is not something of the past. It would also seem that wrangling about statehood is also something that is still with us.

Tuesday, February 21, 2012

This Day in Legal History -- Roy Cohn

Big lawyers have big personalities, and few had as big a personality as Roy Cohn who was born on this day in New York City in 1927. Cohn’s career was spent in the Washington DC—New York axis, famous in the press for his legal and social exploits, his list of famous and infamous clients, and as the poster-boy for every stereotype of the dishonest grasping lawyer. The legal career of Roy Cohn is an object lesson on the use, and abuse, of the lawyer’s power.

Roy Cohn was born on February 20, 1927 in New York City. His father was a justice in the Appellate Division of the State Supreme Court and was well connected politically. These connections, along with a precocious intelligence which allowed him to graduate from Columbia law school at age 20, paved the way for a bright legal career. Cohn’s first job (after waiting until he turned 21 to be admitted to the bar) was as an assistant U.S. Attorney in New York. He first came to prominence in his role as a prosecutor in the Rosenberg espionage trial. It was rumored at the time that Cohn convinced trial judge Irving Kaufman to sentence Julius and Ethel Rosenberg to death for their activities. It would not be the last time that Cohn’s name would be linked to back-door influence peddling.

Having made a name for himself as an expert in “subversive activities,” the name given to the anti-Communism of the 1950’s era “Red Scare”, Cohn moved to Washington, DC to become the special assistant to Attorney General James McGranery. Cohn pursued his “Red Hunting” activities in Washington, culminating in his appointment as chief-counsel of Senator Joe McCarthy’s permanent subcommittee on investigations, beating out minority counsel Robert Kennedy for the job and thus creating a hatred for each other that lasted for years.

Cohn became famous nationwide as a result of his work on, and off, the committee. He handled investigations for the committee, and with his friend G. David Schine, flew around the world investigating Army bases and embassies for evidence subversive activities. In an effort to secure special privileges for Mr. Schine who had been drafted into the Army, Cohn angered the Army. The charges and counter-charges between McCarthy and the Army resulted in the famous Army-McCarthy hearings which were televised nationally, and resulted in the decline of McCarthy’s popularity. After the hearings Cohn moved back to New York where his second legal career started.

Roy Cohn became known as the New York fixer par excellence. His client list ranged from Francis Cardinal Spellman and the Roman Catholic Archdiocese of New York to Carmine Galante and “Fat Tony” Salerno. He was known as a ferocious advocate in the courtroom and for throwing lavish parties with A-list celebrity guests. He also became famous for racking up judicial reprimands and law suits by aggrieved clients and creditors. He was sued three times in federal court for a variety of charges and acquitted each time and was audited for 20 straight years incurring IRS liens totaling $3.18 million. Esquire magazine called him a “legal executioner.” The National Law Journal referred to Cohn as an “assault specialist.” He was not beloved by the legal community.

For all the controversy that swirled around him; including allegedly participating in an insurance scam involving the sinking of a rent yacht, having a millionaire sign a death-bed codicil making Cohn executor of his will, and eventually being disbarred, he always had lots of friends. Cohn’s friends included Barbara Walters (who he claimed to have been engaged to), William Safire, George Steinbrenner as well as numerous Democratic and Republican politicians and New York judges and lawyers.

Roy Cohn, a man who lived in the public eye, died of AIDS in 1986, a disease he long denied having. Even in death Roy Cohn could not avoid controversy and gossip.

Friday, February 17, 2012

United Nations News Reader

The United Nations recently launched a free app that allows you to access international news stories from the UN News Centre on your mobile device. Currently the app is available for iOS devices and can be downloaded through iTunes. You can browse the most recent UN news stories and view articles on particular subjects or from various regions of the world. The app also allows you to save your favorite articles as well as read the materials offline.

However, this is not the only app available from the UN. The organization has also created apps for the Charter of the United Nations and the Universal Declaration of Human Rights as well as others. For more information about these apps and more, see the UN Mobile Applications website.

Wednesday, February 15, 2012

Super PAC Resources

It seems that Super PACs are everywhere these days. In recent weeks, they have been the focus of numerous news reports and blogs as well as fodder for late-night comedians. Super PACs, which emerged after the U.S. Supreme Court decision in Citizens United, have created controversy because they may accept unlimited contributions and make unlimited expenditures (under certain conditions) in order to advocate for or against particular political candidates.

If you want to learn more about Super PACs beyond what you have been seeing in the news, the Congressional Research Service recently issued a helpful report explaining what they are, how they are regulated, the types of information they must disclose, and Super PAC activity in the 2010 election. California Watch and the Center for Investigative Reporting have also put together a searchable database with information about who is donating to Super PACs. Finally, OpenSecrets.org has provided a table listing how Super PAC money is being spent.

Friday, February 10, 2012

Effectively Representing Your Client Before the IRS

The American Bar Association Section of Taxation has recently published Effectively Representing Your Client Before the IRS, 5th ed., a two volume set with practical information designed for attorneys who represent their clients before the IRS. Each of the chapters, written by different authors who specialize in the field, contains analysis of the law and examples along with sample correspondence and forms. This set begins with a discussion of the structure of the IRS, the rights of taxpayers, and the Taxpayer Advocate Service and expands on issues pertaining to the internal procedural matters within the IRS such as filing claims, assessments, the auditing process, adverse determinations, collections, and tax liens and levies. Litigation matters are also explored such as bringing suit within the U.S. Tax Court, civil penalties, criminal cases, and including tax debts in bankruptcy. Identity theft, recovering fees, and recovering refunds for overpayments are among other topics covered. There is no index, but the text is well organized and succinct with informative charts and practice tips throughout both volumes. Although this source is designed for the practitioner, law students, particularly those taking a course on Tax Procedure will find this set to be a reliable reference. The law library currently has this source on the new titles shelf across from the circulation desk.

Tuesday, February 7, 2012

New Hydraulic Fracturing Chemical Disclosure Requirements Drawing Controversy

The Houston Chronicle is reporting that newly proposed rules by The Bureau of Land Management (BLM) that would require those who drill on federal public lands to disclose hydraulic fracturing chemicals that they use is drawing heavy criticism by the oil and gas industry. Hydraulic fracturing or "fracking" is a method of extracting natural gas or oil from deep shale formations by the injection of a liquid substance (which usually includes chemicals) at high pressure. The new rules would allow a trade-secret exemption if companies can demonstrate that information is protected by state or federal regulations.

Saturday, February 4, 2012

The ONEAR Mystery

One of the things I still don't understand about the search syntax on Lexis Advance is: Why include the ONEAR/n Connector? Wait . . . You don't know about the ONEAR Connector?! Well, I'm not surprised, because no else seems to know about it either (including most employees of LexisNexis)!

First, of all, every person I've mentioned this Connector to has reacted the same way: "ONEAR? What's that mean? That's a dumb name!"

Second, it's actually a redundant Connector. According to the list on the Connectors tab of the Search Tips form page in Lexis Advance, the ONEAR connector (which is the last Connector listed) should be used when you want to "Include words where the first word precedes the second by not more than 'n' words". Hmm . . . Why does that sound familiar? . . . Oh, yeah. Because the fifth Connector listed is the PRE/n Connector, and its stated function is to "Include words where the first word precedes the second by not more than 'n' words"!

Take your time. Go ahead and read those two descriptions again. I'll wait. Your eyes are not playing tricks on you. They are the exact same description!

So here's my question: Why add ONEAR, a Connector that was not included in the Beta version and is not available through lexis.com, when you're going back and adding PRE/n, a Connector that lexis.com users are already comfortable with and that does the exact same thing?!

Attempting to Solve the Mystery

Back in June 2011, when I was preparing an initial critique of what was then called Lexis Advance for Law Schools BETA, I spent some time investigating the LexisNexis Marketing assertion that they had "moved to the new web standard set of Boolean connectors". Considering no other legal search engine relied upon the NEAR Connector (which is functionally identical to the trusty, old W/n Connector), I sought to identify where this new Connector had come from.

My research at that time led me to a company called Exalead. Exalead is "a global software provider in the enterprise and Web search markets, and the maker of . . . the industry's top platform for Search-Based Applications (SBAs)." A description of Exalead's main platform sounds remarkably similar to the "innovations" of Lexis Advance, and they utilize a small set of simple Connectors, including the NEAR Connector. But, as far as I can tell, they do not use the ONEAR Connector.

Now, it appears the solution might be much simpler than that. LexisNexis may be using an SBA as part of Lexis Advance, but they also may just be utilizing a relatively new programming language called FAST Query Language (or FQL). Developed for Microsoft FAST Search Server 2010 for SharePoint, "FQL is a query language providing advanced query capabilities against textual content". FQL is relatively simple to use, allows dynamic manipulation of content, and, most importantly (for my investigation), it utilizes the ONEAR Connector.

Mystery solved. Or is it? Considering all that FQL apparently can do, if LexisNexis is using it for the development of Lexis Advance, why can't we have the capitalization and pluralization commands that lexis.com allows? I guess that's the real mystery.