Saturday, February 16, 2013

Are briefs protected by copyright? UPDATE


Answer: no.

After previously dismissing the claims on behalf of lawyers who never registered their briefs with the Copyright office, Judge Jed Rakoff has now granted West and Lexis's motion for summary judgment and dismissed the case in its entirety. What is my incentive for even creating new briefs, now?

ORIGINAL POST (2/23/2012):

Eugene Volokh notes that a lawsuit has been filed in federal court alleging that Westlaw and Lexis violate copyright law by posting (and then charging for) briefs filed in court. Professor Volokh thinks it's not an unreasonable argument.

I don't have any opinions on the merits of the case, but if briefs are protectable by copyright, then I may have a claim. Compare this brief that I drafted (with help, of course) with this brief that others filed in another case. For example, compare pages 21 - 25 of my brief with pages 15 - 18 of the other brief. It's pretty much a straight lift.

If you actually read the briefs, you'll notice that my client and the other guy's client were fighting the same battle. And we both "emerged" victorious, smashing our Kirkland & Ellis-represented opponent on summary judgment, and embarrassing them (in a joint opinion) at the Federal Circuit. I was aware of the other brief soon after it was filed, and I took it as an homage.

But I'm willing to check the statute of limitations on copyright infringement claims ...


  1. Unfortunately, we can't know the basis for the summary judgment order until the opinion comes out. It may be that briefs are protected by copyright (which I think is the correct ruling), but there is some applicable defense or other basis for the order.


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