Are Legal Briefs Filed With A Court Covered By Copyright?
from the yes,-but... dept
Federal court rulings, since they’re produced by the federal government are public domain materials, but a few months ago, when I was writing about a court filing, I wondered if the same applied to briefs filed by private parties with the court. As with so many things, I sent a quick email to Eric Goldman to get his take on it. He pointed out that, technically, the brief probably was covered by copyright, but there could be a strong public interest/fair use claim in being able to post it online. However, it was not entirely clear. I guess it should come as no surprise that this is now becoming a specific legal issue itself. Michael Scott points us to a story about a lawyer claiming that legal publishing services LexisNexis and Westlaw, which both publish legal filings and rulings, were violating his copyright on a brief he had filed, in redistributing it (for profit).
As you know, unique content is automatically covered by copyright as soon as it’s expressed in some permanent form. And considering that most filings are unique works (not boilerplate stuff), there’s a pretty strong argument that they should be covered by copyright (and, in theory, a lawyer could register the works, though I would doubt that’s common). This isn’t necessarily a good thing and doesn’t make much real sense — but it’s the sort of bizarre situation you end up in when you automatically put copyright on any form of expression. While some are arguing that since the document has been filed publicly in court, it’s now public material and can be reposted, it’s not at all clear the law supports that position. Of course, the law probably should make this clear. Allowing copyright on legal filings would create quite a mess. It would seem like there’s a very strong public interest/fair use claim on why it should be fair for anyone to redistribute such documents (whether for profit or not), but we may soon find out what a court has to say about that.