A cluster of recent litigation reports leaves me more discouraged than ever by the lack of agreement about the purpose of federal copyright law. We need a reset, and the adversarial process isn’t producing it. Maybe the only hope is academics who aren’t hired by one side or the other, but I want to offer some ideas anyway. Admittedly grandiose, I use “unified field theory” from physics because I’m talking about the core of the core idea in the US: what does it mean today to promote progress of useful arts? Maybe you wouldn’t use those words, but our core document does.
Article 1, §8, cl. 8 of the US Constitution forces the purpose of copyright to be extruded from the power of Congress “To promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.” It doesn’t even say “copyright” or “patent,” and it’s all we’ve got. The federal courts try to interpret and apply what Congress does to interpret and apply these words, but someone has to file a lawsuit before that can happen.
In recent weeks, (1) lawyers sued the largest electronic legal publishers and research providers for selling copies of pleadings and briefs the lawyers filed in court, (2) scientific publishers sued lawyers for copying the publisher’s articles and submitting them to the USPTO in patent prosecution, and (3) while the news was still all about the dramatic Megaupload arrests for massive internet copyright infringement, a major record company agreed to a proposed class action settlement for underpaying artists copyright royalties on, of all things, internet downloads.
Cases of lawyers suing legal publishers include a class action, White v. West Publishing, Case No. 12-CV-1340 (SDNY; Feb. 22, 2012). The defendants provide the Westlaw and Lexis electronic legal publishing and research systems. Most lawyers know that for a price, they sell searches of a giant array of legal documents and provide views and copies of the documents that make up the search results. For some time now, the documents have included pleadings and briefs filed by lawyers. The named plaintiff attorneys took the trouble of getting copyright registrations on a few of their motions and memos filed in court, and they allege copyright infringement by the publishers who copied and digitized the work without permission from them.
The commercial realities show that the argument hasn’t gained much traction, and it is not new. The White complaint has few details. For example, it doesn’t describe how Westlaw and Lexis get the lawyers’ work and copy it. Although on a vast scale, they presumably have to go to the same places as the rest of us: the courts’ records systems managed by the court clerks. That is almost always online in the federal court system where you can search and copy documents using PACER, but in other systems a person may have to go to a clerk’s office to get copies.
Either way, you get copies. And there’s usually a charge. So far the clerks aren’t getting sued for making unauthorized copies, but they could be. 28 USC §1498(b); 17 USC §511. Doesn’t the lawyers’ “exclusive right” under the Constitution apply to the clerks?
Much of the answer is that the fair use doctrine is a shield for the publishers. Fair use includes “criticism, comment…scholarship, or research.” 17 USC §107. Far beyond those general words, however, legal filings are a special category of documents. In the Seventh Circuit, the “public’s right of access to court proceedings and documents is well-established.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir.1994). It’s taken very seriously, and anybody who wants to keep documents from the public must show cause except for categories of personal information specified by rule.
So everyone is entitled to get copies of the plaintiff lawyers’ documents filed in court. You wouldn’t get the copies, of course, unless you knew something about the lawsuit in the first place and were checking what was filed. If you didn’t know about the lawsuit, Westlaw and Lexis search results might identify the lawyers’ documents for you. At that point there are at least two places to see them and get copies. You can get them from the clerks, or you can get them from Westlaw and Lexis. Dozens of other non-subscription websites might have them too.
Aside from what motivated this particular lawsuit, it certainly poses questions. If the clerks are not going to be sued for copyright infringement when they provide copies, but Westlaw and Lexis are, what does that say about the purpose of copyright? And if the publishers are found to be copyright infringers, how does that promote progress of the useful arts? Part 2 coming soon.