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Copyright litigation over briefs. Oh, this again.

By Jason Wilson

For whatever reason, I decided to check my RSS tonight and there were not one, but two, posts on a recent class-action lawsuit against Thomson Reuters and Lexis alleging copyright infringement for reselling appellate and trial briefs. The first was a rather humorous one by Jean O’Grady, who noted:

Call me a cynic but aren’t  a huge chunk of the legal opinions written in this country essentially “derivative works” based on other peoples arguments and analysis? Don’t judges (or their clerks) take whole paragraphs from briefs and drop them into opinions? Don’t lawyer’s draft briefs selecting text from judicial opinions and legal memoranda?

The second was a rather interesting and thoughtful post by Don Cruse, who highlighted some interesting inconsistencies with the plaintiffs’ claims:

The lawsuit does not name PACER as a defendant, although curiously it does precisely what Westlaw and Lexis do here (with even less transformation of the raw source material).

What I found interesting was the fact that neither post mentioned the ongoing Canadian litigation involving the very same issues. Earlier this month, I had the pleasure of talking about the case with Jordan Goldblatt, the lead attorney in Waldman v. Thomson Reuters Canada, Ltd. They had just wrapped on the certification hearing, and so I was able to get the low down on Thomson Reuters’ position during the hearing, at least under Canadian copyright law. Interestingly, the focus seemed to be on a provision of Canadian law that grants an exception for academic and research purposes, perhaps similar to fair use as mentioned by Don in his piece. The Defendants’ Statement of Defence (pdf), however, focused more on implied consent:

30. The plaintiff knew that the Arar factum, once filed with the Court of Appeal for Ontario, could be accessed and copied for a fee by other lawyers or any member of the public. He knew and accepted that commercial process services could obtain a copy, and charge for doing so. He knew and accepted that commercial research services could obtain a copy, and charge for doing so. He knew and accepted that commercial research services would have the same access to our public court system as any member of the public, or process server. He knew and accepted that any lawyer could obtain a copy from the Court and use it in their work, including reading and copying the document itself, or the arguments, skill, creativity, rhetoric, ingenuity, persuasiveness or ideas that it contains.

31. Once the plaintiff filed the Arar factum with the Court, he consented to and/or impliedly licensed its reproduction, publication and communication to the public, including by lawyers or by third parties on behalf of lawyers for a fee.

Regardless, we’re a couple of months away from a decision.

It’s curious to me that the U.S. class action lawsuit was filed within a matter of weeks of the Canadian class action certification hearing. There’s a part of me wondering whether White and Elan (lead plaintiff’s in the NYC case) weren’t waiting to see what happened during that hearing before filing suit. Either way, the defendants have made tens if not hundreds of millions of dollars on reselling briefs, and you just had to know that lawyers were eventually going to want a piece, particularly after Ed Connor’s now infamous letter to the California Supreme Court suggesting an equitable solution to the problem of giving briefs to Westlaw and Lexis in lieu of suing for copyright infringement.

This will be an interesting case to watch because the common-law ramifications are large. And if you’re interested in some related commentary on the matter, check out Don’s post.

[Image (CC) CT State Library]

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