Westlaw and Lexis Finally Agree: Providing Copyrighted Legal Briefs To Customers Is Fair Use

weleEvery attorney in the United States understands that West Publishing Corp. (“Westlaw”) and the LexisNexis Group (“Lexis”) are perennial rivals in the electronic legal research field. As such, they don’t agree on much, but there are some important exceptions.  Earlier this month, one of those exceptions came to a pleasing conclusion for both companies, when Judge Jed Rakoff of the Southern District of New York issued his long-promised opinion in White v. West Publishing Corp.

The case was brought by Edward White, an Oklahoma-based IP attorney. Some of White’s legal briefs, which he had drafted and filed in federal court on behalf of his clients, were republished by Westlaw’s “Litigator” and Lexis’ “Briefs, Pleadings and Motions” services.  These services download select legal briefs from the government’s PACER system, add hyperlinks and coding (e.g., they label the briefs by jurisdiction, practice area, etc.), and then make them available to users, either for a single document fee or as part of a monthly subscription plan.

White registered his briefs with the U.S. Copyright Office and, in 2012, brought suit against Westlaw and Lexis for copyright infringement. On February 11, 2013, the Court granted the defendants’ motions for summary judgment and promised that “an opinion explaining the reasons for this ruling will issue in due course.”  On July 3, 2014, a year and a half later, the Court issued its opinion.

Fair Use Analysis

Judge Rakoff held that three of the four fair use factors indicated that the republication of the legal briefs by Westlaw and Lexis was permissible:

  • Purpose and Character of the Use: Judge Rakoff held that the use was transformative because publishing legal briefs for interactive legal research was a different purpose than writing legal briefs as a service to a client. Also, the hyperlinks and coding “added something new,” and the Court deemed this transformation so significant that it outweighed  the commercial purpose of the use.
  • Nature of the Copyrighted Work: Judge Rakoff held that the legal briefs at issue, in contrast to something more creative like fiction, were “functional presentations of fact and law.” Therefore, this factor also weighed in favor of fair use.
  • Amount of the Work Used: Although Westlaw and Lexis used the entire briefs, Judge Rakoff held that this was no more than was reasonably necessary for their transformative use, and thus this factor was neutral.
  • Market Impairment: Judge Rakoff found that the challenged use of the legal briefs was not harming White’s traditional market, in that White could not show that he had lost any clients. Additionally, the court found that no potential secondary market for licensing legal briefs is likely, because the transaction costs would be prohibitive.

This was not the most surprising of outcomes, but nevertheless one might question a few of the Court’s findings and conclusions. For example, contrary to the Court’s assumption, it’s not at all hard to imagine the potential for a social network-based online secondary market that allows lawyers to exchange or license briefs with very low transaction costs. It’s also tempting to question the Court’s assertion that mere hyperlinking is really “adding something new” in the transformational sense.

And what about the finding that legal briefs were merely “functional presentations” of fact and law as opposed to creative fiction? Speaking for myself, my briefs are never fictional.  As for my opponents’ briefs . . .(I kid, I kid). Either way, none of us are getting any copyright license fees anytime soon.  White’s deadline to file a Notice of Appeal is August 4.

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