One of the running issues I had been following is the attempt to copyright legal briefs with the intention to gain royalties or prevent others from using them. The particular case that litigates the issue is White v. West Publishing Company and Reed Elsevier (USDC Southern District NY). District Judge Rakoff ruled that the use by West and Lexis is fair use. Both companies transform the documents to a different purpose and use according to the Judge’s analysis under the four fair use factors:
The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koons, 467 F.3d 224, 251 (2d Cir. 2006) (“The sharply different objectives that Koons had in using, and Bland had in creating [the work] confirms the transformative nature of the use.”). Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add something new, with a further purpose or different character” than the original briefs. Campbell, 510 U.S. at 579. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Thus, on net, the first factor weighs in favor of a finding of fair use.
The Court dismissed the claim with prejudice. The entire opinion is here, courtesy of ARL. I’m sure there will be an appeal. Lawyers are sometimes too smart for their own good. –Mark