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Westlaw, LexisNexis, Briefs, and Fair Use

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. 

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