To Register or Not to Register Copyright in Legal Briefs - That is the Question

Like many questions in the law, the answer is a conditional one - maybe, and maybe not. The question is not a new one, but the ease of distribution afforded to digital media has brought it to the fore once again. In White v. West Publishing Corporation et al, Case No. 12-1340 filed in the US District Court for the Southern District of New York, a class action suit filed by several subclasses of lawyers is challenging the right of Lexis-Nexis and West Publishing to collect (usually via download) legal briefs filed in cases, and then repackage them for sale, presumably to other lawyers. In a ruling issued on May 16th, U.S. District Court Judge Jed Rakoff dismissed the claim of the subclass of lawyers who had failed to register their briefs with the Copyright Office, on the grounds that, as he put it, "The statute is unequivocal that completing registration or pre-registration is a prerequisite to filing a claim".

Judge Rakoff's order does not address the validity of the claims of the other putative subclass - comprised of lawyers who did register their briefs.  While this decision, on its merits, seems unremarkable and consistent with long-established legal precedent, it does re-open the debate about the merit of the underlying claim - that lawyers have a right to, and should exercise their right, to register copyright ownership in their legal briefs. This presents the more interesting issues for discussion.

My review of previous commentary in this debate disclosed that two principal arguments seem to be advanced in opposition to registration - 1) all filings with a court are a matter of public record, which in turn means that briefs filed instantly go into the public domain, making registration impossible; and 2) absent someone directly copying a brief in its entirety, any subsequent re-packaging of a legal brief is a fair use, and therefore defensible against a subsequent infringement claim. 

The fact that court filings are a matter of public record doesn't mean that the contents of those filings are placed in the public domain. This is true of the legal briefs filed, and is made more evident if you consider that attachments to those briefs, particularly in intellectual property cases, often include material clearly protected by copyright registration. Filing a lawsuit claiming infringement of a motion picture script, where that script is attached as an exhibit to the complaint, doesn't result in a waiver of copyright protection for that script, merely because the script, as an exhibit, is now part of the public record.

The fair use argument presents a more complex problem, meriting a more detailed analysis. Is the nature of the use, in a legal brief, a commercial use, or a non-profit use? Is the use transformative? Is the nature of the work creative, thereby warranting greater protection? As is often the case in fair use defenses, it is impossible to posit a bright line answer to these questions, leaving lawyers to fall back to the dreaded "each case has to be separately analyzed on its own merits" answer, which gives little guidance to a practitioner faced with the decision of whether to raise the defense.

The fourth prong of fair use analysis, the effect of the use on the market for the original work, poses even more difficulties regarding legal briefs. The brief is not sold as a good itself, but rather represents the result of billable hourly work, which includes compensation for the research required, the time spent drafting and editing the brief, and the skill and experience of the author. None of these elements are subject to copyright protection.

Moreover, the attorney who drafts the brief is generally not in the business of selling the brief as an independent good, and the work is largely tailored to the specific facts of the case or needs of the client. Which of course raises another issue usually not discussed in this debate - while attorney work product belongs to the attorney, does the client have any ownership interest in the work which was created based on their case or need, and for which they paid the cost of its creation? And given these issues, is there really a strong argument that can be made that lawyers have an interest in marketing these briefs?

Since most of what is found in a legal brief isn't subject to copyright protection (ie:  the facts of the case, the case citations and the facts and quoted language from those authorities, the text of relevant statutes and prior orders in the case; the research efforts of counsel, and related items), what is left is the prose used by counsel to present the argument. It seems unlikely that the interest in this prose has enough value to make assertion of a protectable copyright interest worth pursuing - unless the universality of the issue and the high quality of the prose attracts the interest of an aggregator like Lexis-Nexis or West, who are thereafter able to make a sufficiently grand net profit from the resale of the text to warrant the claim.  Sounds unlikely to me - so let's wait to see the outcome of this class action suit to see if the District Court agrees.