WEXIS Briefs Are Fair Use

Law Librarians posted a wonderful summary of the litigation surrounding the copyright infringement claim of the brief offerings on WEXIS.

There was an attempt to "copyright legal briefs with the intention to gain royalties or prevent others from using them."

As noted, "[t]he particular case that litigates the issue is White v. West Publishing Company and Reed Elsevier (USDC Southern District NY).  District Judge Rakoff ruled that the use by West and Lexis is fair use. Both companies transform the documents to a different purpose and use according to the Judge’s analysis under the four fair use factors:

The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes in the Beer litigation, the defendants used the brief toward the end of creating an interactive legal research tool. See Blanch v. Koons, 467 F.3d 224, 251 (2d Cir. 2006) (“The sharply different objectives that Koons had in using, and Bland had in creating [the work] confirms the transformative nature of the use.”). Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add[] something new, with a further purpose or different character” than the original briefs. Campbell, 510 U.S. at 579. While, to be sure, the transformation was done for a commercial purpose, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. Thus, on net, the first factor weighs in favor of a finding of fair use. The Court dismissed the claim with prejudice."

Legal researchers rejoice! I find the brief offerings and the ability to search the full-text of briefs to be some of the most valuable content on WEXIS. Not only do the briefs help attorneys with their own claims, they also become a resource to mine for additional materials on point as the briefs cite to primary authority that aid in additional research.

Comments

  1. While this is a good outcome for librarians, practitioners, and students, it's a really terribly-reasoned decision with huge potential for abuse further on down the line.

    It's now fair use to wholly reproduce somebody else's written intellectual property for entirely commercial ends if you're using it for demonstrative purposes? I guess the second circuit will be fine with, say, me bundling the entire works of Stephen King in Kindle format and selling that with the express purpose of teaching my customers to write like a billionaire suspense author.

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  2. That's a good point, Mike. I wonder if it will open the floodgates. I bet it has something to do with the fact that court filings are considered to be public records, and it keeps in line with the Google Books & HathiTrust litigation. In my opinion, the big caveat, here, is the amount of money that WEXIS stands to make from other people's work, and I'm not sure I agree with the reasoning that it is so transformative that it outweighs the commercial nature in this instance.

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