Lawsuit Threatens to Change the Way We Research

By: Barbara Stansil

Almost anyone who has been even remotely acquainted with the legal profession is familiar with the Westlaw and LexisNexis search engines. For those who aren’t familiar, these search engines provide access to databases containing statutes, cases, briefs and much more for a fee.  While most of us see these one-stop shops to legal briefs, cases, and statutes as lifesavers for legal research, a new lawsuit threatens to shut these engines down for good.  Edward White, an Oklahoma City lawyer along with Kenneth Elan, have brought suit against the companies for wholesale copying of copyright-protected materials, namely briefs, and motions.  They allege that these articles are owned by the lawyers and law firms that created them. White and Elan are seeking injunctive relief, damages, and profit disgorgement.

This is a very interesting case as apparently filing briefs in court does not waive any copyright protection. Therefore, this case will most likely turn into a fair use question. The fair use doctrine is detailed in Title 17 Section 107 of the U.S. Code.  Education and reporting are normally considered fair use.  However,  fair use usually turns on the four factor test as outlined in the Code. The test includes analysis on: 1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes, 2) The nature of the copyrighted work, 3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4)  The effect of the use upon the potential market for, or value of, the copyrighted work. In my opinion, the make-or-break of this case will be how the court rules on the fourth factor. Some things it may consider are the usefulness to the public, whether there is a market for these briefs, and whether the search engines are in competition with lawyers.

I am also interested in seeing exactly which documents will be affected by this ruling. Are statutes affected?  Court opinions?  Would these be allowed on websites?  Are these items simply facts that are not subject to copyright protection or is this something different? This is definitely a case I will be tuned into as it definitely will have some major effects for us all.

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