The confluence of two issues raised, one by Eugene Volokh and the other by Rick Horowitz, presents a disturbing question as to who owns what when it comes to the law, and why we’re paying for things that should belong to all of us in the first place.
Eugene posted the question of whether Lexis and Westlaw infringe upon copyright when the publish appellate briefs.
The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there’s no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It’s also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn’t open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
I agree that there are certainly fair use aspects to having briefs available to others, not for the purpose of copying and using them ourselves, but rather to understand the arguments made for and against a position resulting in a court decision. But it implicates another point as well. Lexis and Westlaw charge, and charge well, for their services. Should they be entitled to charge me for access to your brief, while you gain nothing from it?
They provide the medium, but you (and I) provide the content. We don’t play on Lexis because we enjoy the interface; we use it to search for content. But this content isn’t theirs to sell. The same is true, when you think about it, of the cases and statutes. Those belong to the courts, and to the people, yet they sell it as if it was their very own. How does this sit with you?
Rick Horowitz came at this issue when seeking to download the California Penal Code.
Years ago, at the dawn of time before computers and the internet, companies like West Publishing had to pay people to take court decisions and retype them so that they could be published in these bulky, expensive, things we called “books”. Lawyer back then had whole rooms dedicated to these things called “books”. The rooms were called “law libraries.” They made great backdrops for television interviews. They were also good for researching.
Things are different today. No longer does West have to send hard copy of court decisions overseas to have non-English speaking typists create the fodder of their law books. Now it’s a click here, a click there, and a scan, and everything is done. It’s just the fine work of our legislators, courts and lawyers, and Westlaw and Lexis are in business, charging absurd amounts of money to access our own material, bought and paid for by the same people who get the computer research bill.
I over simplify the process a bit, but our acceptance of the fact that Lexis and Westlaw performed a function worthy of significant payment in the olden days may have carried over to the modern age without undergoing much scrutiny. Perhaps it’s time to start asking why we, the people, are giving them, the businesses charging us, our goods and then paying them to buy them back? It seems to me that the business model has changed, and it’s time we reconsider whether Lexis and Westlaw should be allowed to freeride off our work, or whether the fees we pay them are rational and commensurate with their contribution to the cause.
Or to put it another way, I wonder whether the function of any halfway competent search engine couldn’t perform as well, and perhaps better given that Lexis has done nothing in years to improve its functioning, at no cost to the user? The only think we would need is to have all the public materials available publicly. That doesn’t seem like such an unreasonable thing to expect.
They provide the medium, but you (and I) provide the content. We don’t play on Lexis because we enjoy the interface; we use it to search for content. But this content isn’t theirs to sell. The same is true, when you think about it, of the cases and statutes. Those belong to the courts, and to the people, yet they sell it as if it was their very own. How does this sit with you?
Rick Horowitz came at this issue when seeking to download the California Penal Code.
Statutes…those are public domain, right? So shouldn’t it be easier to find ebooks like, “California Penal Code” in complete form?It seems like it should. After all, the Penal Code is the product of government, of elected officials, whose work is done for the benefit of the citizens of California. We’re not paying them to pass laws so Lexis and Westlaw have something to post on their commercial websites.
Years ago, at the dawn of time before computers and the internet, companies like West Publishing had to pay people to take court decisions and retype them so that they could be published in these bulky, expensive, things we called “books”. Lawyer back then had whole rooms dedicated to these things called “books”. The rooms were called “law libraries.” They made great backdrops for television interviews. They were also good for researching.
Things are different today. No longer does West have to send hard copy of court decisions overseas to have non-English speaking typists create the fodder of their law books. Now it’s a click here, a click there, and a scan, and everything is done. It’s just the fine work of our legislators, courts and lawyers, and Westlaw and Lexis are in business, charging absurd amounts of money to access our own material, bought and paid for by the same people who get the computer research bill.
I over simplify the process a bit, but our acceptance of the fact that Lexis and Westlaw performed a function worthy of significant payment in the olden days may have carried over to the modern age without undergoing much scrutiny. Perhaps it’s time to start asking why we, the people, are giving them, the businesses charging us, our goods and then paying them to buy them back? It seems to me that the business model has changed, and it’s time we reconsider whether Lexis and Westlaw should be allowed to freeride off our work, or whether the fees we pay them are rational and commensurate with their contribution to the cause.
Or to put it another way, I wonder whether the function of any halfway competent search engine couldn’t perform as well, and perhaps better given that Lexis has done nothing in years to improve its functioning, at no cost to the user? The only think we would need is to have all the public materials available publicly. That doesn’t seem like such an unreasonable thing to expect.
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A similar situation currently prevails in scientific publishing.
The majority of this research is funded by the taxpayer. The researchers publish the results of their work but the copyright ends up with the publisher: how so? It wasn’t theirs to begin with.
Charitable foundations fund a lot of scientific research (eg, the Welcome Foundation) and a similar process is followed when it comes to publishing the results of this research. But did the charity have the right to transfer copyright ownership to the publishing house?
(In the UK there’s an argument that this could end up with the Charity falling foul of the Charities Act 2006 but that’s another story).
“Or to put it another way, I wonder whether the function of any halfway competent search engine couldn’t perform as well, …“
You have a comparator situation – patents are not burdened by copyright. See how they are published: for example, see the various government agencies (USPTO, ESPACE) and the private ones eg google patents and delphion from IBM.
Being a child mostly of the internet era, I took a “who cares” attitude. Briefs have always been available. Maybe you get them on Pacer. Maybe you have someone pick them up from court. You can always scan them. You can always OCR them. Practically speaking, there’s *nothing* someone can do to prevent you from copying their brief.
I think the big question for me is whether Lexis is charging separately for them. They make available the court filings and if they make available the briefs, I won’t complain. But if they charge separately for the brief then they making money of the sweat and blood of the brief writer (hey, maybe the slackoisie is entitled to royalties by virtue of their contribution ;-)).
At the end of the day attorneys who gripe about copyright in their work product always strike me as lame. That said, the dude wrote a pretty detailed letter saying he was ticked off that Lexis made available his 143 summary judgment brief. I wonder what that brief looks like.
Given sites like Scribd and JDSupra, couldn’t attorneys proactively short-circuit the selling of their briefs for profit by posting them online?
At JDSupra, I’ve definitely run across plenty of briefs, pleadings, and so on.
Granted, the volume of available material currently is nowhere near that of the commercial providers, and the practice wouldn’t get at the root problem (whether the commercial entities are infringing copyright). However, this is certainly a “lawyers helping lawyers” way to provide widespread access to legal materials.
I don’t think they serve the same purpose. Wexis goes from decision to brief, making the brief available for those who desire to see what arguments resulted in the decision. You wouldn’t achieve the same purpose through JDSupra.
And, to be frank, this has nothing to do with lawyers helping lawyers, an entirely different idea of limited interest.
Lexis and Westlaw sell more than the substantive content of the law; they sell a product that makes research quick and easier than it would be. Clicking on citations in cases, or statutes, makes researching convenient where it was burdensome; notes of decision as well. Not to mention headnotes.
Would a public search engine function nearly as smoothly? I know that the Oklahoma Supreme Court Network (OSCN.net) works well, but I prefer to use Westlaw–the formatting of the cases is better (for me), I can click through to different citations, etc. . .
So I think Westlaw serves a more valuable purpose than just throwing public materials together for a price.
“I think the big question for me is whether Lexis is charging separately for them. They make available the court filings and if they make available the briefs, I won’t complain. But if they charge separately for the brief then they making money of the sweat and blood of the brief writer (hey, maybe the slackoisie is entitled to royalties by virtue of their contribution ).”
On Lexis at least, the briefs are not included in our unlimited use subscription. If you see a brief in a list of sheppards results, there is a little dollar sign next to it, meaning that it costs extra if you click on the link. Also, to do a direct search of the brief database is an extra charge.
Also, the California Penal Code is available in its entirety at http://leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codebody=&hits=20. The rest of the California codes can be found at leginfo.ca.gov/calaw.html