Skip to main content

Westlaw, LexisNexis, Briefs, and Fair Use

By
In February of 2013, Judge Jed Rackoff of New York's Southern District dismissed an attorney's copyright infringement case against Westlaw and LexisNexis. The plaintiff alleged that the online research services improperly made use of his copyrighted briefs by uploading the briefs to their systems for use by other subscribers. Judge Rackoff granted the defendants' motion for summary judgement, ending the case, but only this week was the Memorandum & Order explaining the ruling released. You can read the opinion in its entirety here, the case is White v. West Publishing, No. 02-1340 (S.D.N.Y. July 3, 2014).

The opinion finds that the defendants' use of the briefs was permissible fair use under section 107 of the Copyright Act (17 U.S.C. 107), based on the four factors outlined in the statute section. The court found that three of the four factors weighed in favor of fair use, and the remaining factor was neutral. Here's an overview of the court's findings:


  1. In determining whether or not the use by the research systems was "transformative," the court found that both the purpose (creating an online research tool vs. providing legal services) and the addition of coding, links, and unique indentifiers changed the character of the original document. This court determined this factor weighs in favor of a finding of fair use.
  2. Next, the nature of the work was also found to weigh in favor of fair use. First, the briefs are a combination of law and facts, not fiction. Additionally, the work had been, in a sense, previously published by filing the brief with the court.
  3. The third factor, relating to the quantity of the work used, was weighed as neutral. Though Westlaw and LexisNexis used the entirety of the briefs in creating their transformative works, the court noted that this was necessary to create a searchable text document, and thus no more was used than needed. 
  4. The fourth factor considers whether the new work may impair the market by being used as a substitute for the original. The court reasoned here that the original brief provided legal services for the attorney's client, and that the plaintiff was not impaired from licensing his briefs for sale as "no potential market exists because the transactions costs in licensing attorney works would be prohibitively high."

It is unknown whether this case will be appealed, and while the district court's opinion is not binding on other jurisdictions, it is an interesting analysis of how online legal research service providers "transform" the works of others into their own. 
Labels:

Comments

Post a Comment

Popular posts from this blog

The Amazing, but True, Deportation Story of Carlos Marcello

By
Earlier this week, the University of Houston Law Center was fortunate to have as its guest Professor Daniel Kanstroom of Boston College of Law. An expert in immigration law, he is the Director of the International Human Rights Program, and he both founded and directs the Boston College Immigration and Asylum Clinic. Speaking as the guest of the Houston Journal of International Law’s annual Fall Lecture Series, Professor Kanstroom discussed issues raised in his new book, Aftermath: Deportation Law and the New American Diaspora . Professor Michael Olivas introduced Professor Kanstroom to the audience, and mentioned the fascinating tale of Carlos Marcello, which Professor Kanstroom wrote about in his chapter “The Long, Complex, and Futile Deportation Saga of Carlos Marcello,” in Immigration Stories , a collection of narratives about leading immigration law cases. My interest piqued, I read and was amazed by Kanstroom’s description of one of the most interesting figures in American le
1 comment
Read more

C-SPAN Video Archive Now Online

By
Legislative researchers and politics fans take note. C-SPAN recently completed a digitization project placing the entirety of its video collection online. The archives record all three C-SPAN networks seven days a week, twenty-four hours a day. The videos are available at no cost for historical, educational, research, and archival uses. The database includes over 160,000 hours of video recorded since 1987 and the programs are indexed by subject, speaker names, titles, affiliations, sponsors, committees, categories, formats, policy groups, keywords, and locations. The most recent, most watched, and most shared videos are highlighted on the main page. To start watching, visit the C-SPAN Video Library and use the search function at the top of the page.
Post a Comment
Read more

Texas Subsequent History Table Ceases Publication

By
This week, Thomson Reuters notified subscribers that publication of the Texas Subsequent History Table will be discontinued and no further updates will be produced, due to “insufficient market interest.” Practitioners have been extracting writ (and since 1997, petition) history from the tables since their initial publication in 1917 as The Complete Texas Writs of Error Table . The tables, later published by West, have been used for nearly a century to determine how the Texas Supreme Court or Court of Criminal Appeals disposed of an appeal from an intermediate appellate court. The purpose of adding this notation to citations is to indicate the effect of the Texas Supreme Court’s action on the weight of authority of the Court of Appeals’ opinion.  For example, practitioners may prefer to use as authority a case that the Texas Supreme Court has determined is correct both in result and legal principles applied (petition refused), rather than one that simply presents no error that requires
Post a Comment
Read more