Legal databases Lexis and Westlaw have come under fire in a recent suit before the Southern District of New York, filed on behalf of attorneys and their law firms. In the claimed class action, Plaintiffs demand injunctive relief as well as actual and statutory damages for the violation of their copyright.  The copying at issue is that of an attorney’s legal filings themselves.  Namely, an attorney’s publicly filed briefs, motions and other legal documents stored on Lexis and Westlaw’s databases.

Whether these briefs are entitled to copyright protection in the first instance is a novel issue for the Court.  Copyright protects original works of authorship that are fixed in a tangible form.  In this sense, the legal filings in question could arguably contain an original analysis of the facts of a particular case.  If so, the attorney’s weaving of law and facts may constitute a creative work under the copyright statute.  In 2002, for instance, the well-known class action law firm of Milberg Weiss Bershad Hynes & Lerach LLP placed copyright notices on its complaints and registered those complaints with the U.S. Copyright Office.  Litigation filings often contain both original and non-copyrightable material.  But Plaintiffs here claim that an attorney’s litigation filings fall squarely within the realm of  copyright protection and, as such, Defendants knew or should have known that republishing the filings without consent amounts to infringement.

Notwithstanding the copyrightability of the works themselves, Lexis and Westlaw appear to have a compelling defense — fair use.  Such defense provides a likely shield for the legal databases, as it robustly safeguards scholarship and research uses of protected works.  The fair use inquiry will examine both the purpose and effect of the use on the potential market value of the work.  Here, the scales appear to weigh in favor of the legal databases because the attorneys’ right to commercially exploit the work is arguably minimal in comparison to the value the databases provide as a transformative research tool.  Even if the attorneys sought to profit from their own legal filings, there is no strong legal document market to do so.  Thus, Plaintiffs may have a tough hurdle to overcome.

As an issue of first impression, Judge Rakoff will essentially have to determine whether a copying of legal filings is solely a violation of existing professional norms or also a violation of rights stemming from the Copyright Act.

The case is White et al. v. West Publishing Corp. et al., case number 12-cv-01340, in the U.S. District Court for the Southern District of New York.