In 2009, we wrote about a case involving a lawyer named Ed Connor filing a class action lawsuit
against the two giant legal aggregators, Westlaw and Lexis-Nexis. His argument was that legal filings, which those two services aggregated into large databases and then sold access to, were covered by copyright, and these two giants were clearly infringing on those copyrights. In 2010, we wrote about a similar case filed
against Thomson Reuters. I can't find any info on what happened to either case.
However... it appears that some more lawyers are trying the same thing. A bunch of folks have sent over the various reports of how two lawyers are suing Westlaw and Lexis-Nexis again
(though most of the reports seem to ignore the earlier lawsuits). We're posting this lawsuit below (and, um, given the nature of the lawsuit, we're stating clearly our belief that this is fair use!).
While it is true that it is reasonable to see the legal briefs as being covered by copyright
, that doesn't necessarily mean the collections are infringing. Westlaw and Lexis-Nexis have a slightly weaker fair use claim, in part because they're selling access to the database (whereas someone like me is not). They're also not providing any direct commentary (again, unlike this post). That said, I'm still not sure that they're really on the wrong side of fair use. While I'm sure part of the argument is that the amounts that Westlaw and Lexis-Nexis charge are evidence of commercial value of these documents, that's kind of silly. The value is in the aggregation of all the documents, not in the individual documents themselves -- which are more or less worthless in a commercial sense.
It would be nice if the law were clearer that this kind of thing definitely was fair use -- and hopefully that's how the courts will rule. But if not, Congress should make it clear. The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright
on it. It's simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work -- and there's clearly no need for copyright in this instance. Yet another example of the travesties that happen when you automatically put copyright on every work upon fixation. It makes no sense at all when it involves works that are created for reasons that have nothing to do with copyright and would continue to be created in the total absence of copyright.