In copyright-and-fair-use news, a significant case for the legal profession’s access to the inputs of judicial decision-making was decided last week in federal district court in New York. The case was brought against West Publishing Corp. (owner of the Westlaw database) and Reed Elsevier (owner of the LexisNexis database) by two lawyers who alleged that their copyrights in their legal briefs were infringed when West and Lexis included the briefs in their databases. The two databases have long provided paid subscribers with access to the judicial decisions that adjudicate the arguments raised by litigants. Now, Westlaw and Lexis will be able to continue providing their subscribers with access to the primary documents in which those arguments are made. In a decision that follows the lead of recent fair use decisions concerning the wholesale copying of literary works to repurpose them for search and research, the court held that West and Lexis are protected from the lawyers’ claims of infringement. A holding in favor of the plaintiffs would have made it effectively impossible for West and Lexis to continue to provide subscribers with access to copies of briefs, given the prohibitively high transaction costs associated with trying to license every brief filed by every lawyer in every case in every court in the United States.
White v. West Publishing is the latest in a lengthening line of fair use decisions to conclude that making complete, verbatim copies of a copyrighted work can be transformative within the meaning of fair use doctrine if the purpose for which the copy is made is different from, or adds something to, the author’s original purpose in creating the work. Recent prior decisions in this “repurposing” line of cases include those in the Authors Guild lawsuits against Google and HathiTrust. Both Authors Guild v. Google and Authors Guild v. HathiTrust involved claims of fair use for digital book-scanning, where the purpose of whole-book scanning was to facilitate (re)search and not to function as a market substitute for copies of the scanned works. For legal briefs, the court said, there is no existing licensing market to be harmed by the defendants’ activities, nor is the primary market for the plaintiffs’ legal services affected.
In evaluating whether West and Lexis transformed the briefs it copied, the court considered both the process by which a brief is integrated into the defendants’ databases and whether that process “effectively transformed [the work] into a different kind of work.” From the process angle, the court pointed out that the defendants don’t simply copy and upload the briefs; rather, each brief undergoes a series of editorial interventions to prepare it for incorporation into the database. The brief is first converted into a text-searchable digital file and saved in a proprietary format. Each file is then reviewed by an editor, who redacts private information and codes the file according to key characteristics of interest to lawyers doing research (e.g., jurisdiction and practice area). The editor then links the file to the authorities cited in the brief and to decisions and other filings in the same or related cases. Finally, the editor assigns a unique identifier to the file, by which it can be cited and searched. All of these steps, the court said, transformed each of the plaintiffs’ original briefs from a document created “solely for the purpose of providing legal services to clients and securing specific legal outcomes in [specific] litigation” into “an interactive legal research tool.”
This decision may be of particular interest to FTT readers who followed efforts by CITP’s former Executive Director Steve Schultze and the late Aaron Swartz to make publicly filed briefs and other documents from the federal courts’ electronic docketing system, PACER, freely available to the public. While the decision in White v. West Publishing is a victory for legal database publishers and their subscribers more than for the public at large, the outcome will have the beneficial systemic effect of making judicial decision-making more transparent to advocates by making a huge quantity of litigation inputs available for study and legal analysis. (Anyone who has ever used PACER knows that it is not a (re)search-friendly database.) Even when the databases in question are pay-walled, as Westlaw and Lexis are, expanding and facilitating access to unsealed, public court filings increases openness in the justice system, which is democracy-enhancing. Moreover, the litigation process is more efficient when lawyers in the midst of litigation can easily find and study primary documents from similar, already-decided cases. Given how inefficient litigation can be, that’s another notable public benefit.
If lawyers aren’t given a monopoly on their briefs, then what incentive would they have to expend the creative effort? We need to give them this perk, if we want to nurture a society that has access to a wide variety of legal bri–
Oh. Oh, winning their cases. Right.
‘Transformative use’ is a dangerous rationale for this decision. West has a history of claiming that whatever effort it puts into the transformation gives it sweeping control over the results: historically, it has even sued for copyright infringement against those who cited its system without a license. The court’s reasoning goes a long way toward restoring the days when West Publishing effectively owned the law, and it was impossible to mount a court case without paying West for the privilege. In this decision, West regains its argument that its digitization for search, keyword indexing, addition of links to authorities, and (God help us) even page numbering – “assigning a unique identifier” is nothing more nor less than that – are transformations in which West will have a proprietary interest.
In a world where court decisions cannot be interpreted outside the context of the motion practice that spawned them, a better argument is that the artifacts of that motion practice become themselves part of the ‘edicts of government.’ All of us bound to obey the law must be able to know the law.