Are briefs protected by copyright? UPDATE

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 ...

Top 10 Things I Learned as a Judicial Extern (in 2001!)

I am kind of a digital packrat. I have saved and kept accessible nearly  every file I created in college and law school (though some of them are now in unreadable file formats). Today, for reasons best left undisclosed, I took a trip deep into the archives.

One thing I stumbled across was a long-forgotten "journal" from my days as "judicial extern" to Hennepin County Judge John Holahan. This was a for-credit internship during the summer of 2001 that allowed me to serve as a proto-law-clerk for Judge Holahan. Part of the deal was that I had to keep this "journal."

It is interesting reading, although there are, of course, many wince-inducing passages.  The journal ends with the following top ten list, which I found pretty amusing:

Top Ten Things I Learned in my Judicial Externship

10. Not all judges wear robes. [I believe this was in reference to Judge Jack Nordby, who wore a three-piece suit.]

9. Copying machines these days have this fancy mechanism that allows you to insert a stack of papers and it will just gobble them up and copy them like magic. 

8. Court reporters and clerks of court wield unbelievable power if they should decide to use it. 

7. There is a surprising amount of domestic abuse in lesbian relationships. 

6. Speaking of homosexuals, I learned that their ineligibility for marriage really screws them over because they have no legal recourse when it comes time to get divorced. 

5. Good lawyers beat bad lawyers in trial. 

4. Excited utterances are an exception to the hearsay rule—that'll come in handy when I take evidence this semester! 

3. "In the end, it's giving that makes you happy."  --Judge Holahan 

2. It's good to be the judge—but you do have to deal with a lot of stupid crap. 

1. The Court of Appeals is a gaggle of idiots!

I can't say that I necessarily recommend that law students sprinkle their writing assignments with phrases like "a lot of stupid crap" and "speaking of homosexuals," but that's the way I roll.

All a man needs is a big wallet

Here is one of my favorite "war stories."

It comes from my time as a city attorney.  I was prosecuting a case where a guy was picked up for having an unlicensed firearm. It was actually a fake gun -- aka, a toy. But still a crime because it didn't have an orange nose.  Or something like that.

He got busted because the cop saw him in a bus stop enclosure with a purse.  He claimed he was holding the purse for his girlfriend. (This turned out to be true.)  Cop said the guy made a move to flee after he asked about the purse, so the cop took him into custody and searched the purse. Found the (fake) gun. Lawyer time.

(I talked to the cop on the phone and he was good-natured about the whole thing.  He said once he stopped a guy just for wearing a fur coat in summer time and found contraband underneath -- sometimes you go with your gut.)

Day of trial.  The PD was going to ask for a suppression hearing, on the theory that there was no reasonable suspicion or probable cause for the stop and search.  She had a pretty good argument, obviously.  The assigning judge told me to settle the case or he'd send me to Judge Nordby -- a  super liberal judge who we all knew would grant any suppression motion (this is how justice works -- and it works strangely well.) 

The PD and I went off to the side.  I said, "Aren't you curious about whether 'man with a purse' is probable cause?"  She said, "I think I already know what the answer is."  I said, "Look, all a man needs is a big wallet."  At this point I pulled out my own giant wallet to make the point.  I waved it in her face. "Anything more than a big wallet, and the guy's probably got a gun in there."

She pretty much lost it.

We settled the case for a CWOP -- or a continuation without prosecution.  A slight victory for me, in the grand scheme of things.