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" 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?
1 hour ago