I'm basically an appellate lawyer, though I do other kinds of litigation, too. So when both The Volokh Conspiracy and Simple Justice picked up the story of how Westlaw and LexisNexis may be infringing my copyright by making briefs I'd written available, I had to check it out.
Here's how it started.
It seems that lawyers at Connor, Fletcher & Williams LLP in Irvine, California, noticed that a brief they had filed in the California Supreme Court (Edmond Connor of the firm describes it as "a 143 page brief that had taken us hundreds of hours to prepare in an employment discrimination case that we were handling on behalf of an indigent client") was "being marketed and sold to other attorneys by LexisNexis." So Connor wrote to the California Supreme Court and complained about copyright infringement. (His letter is here.)
I suppose I might have been surprised to discover that, too, depending on just how Lexis was marketing" the brief. But I've actually been aware for some time that Westlaw has at least some appellate briefs available in its system (including some from Ohio, by the way). On the other hand, and perhaps this speaks to the difference in sensibility between a criminal defense lawyer and a business litigator, it never dawned on me that I could make a profit off the briefs I've written by selling them over the internet or that Westlaw was somehow cheating me by doing just that.
Heck, I've freely sent copies of my briefs to other lawyers who are addressing related issues. Please, I say, plagiarize my work if it will help.
Still, there is something offensive about what Westlaw and Lexis are doing - and what the courts are helping them do.
Let's start with the easy part. I use Westlaw all the time. I use Lexis less often but occasionally. The services are both invaluable and offensive. They charge too much. They sometimes complicate what should be simple. Despite a proliferation of low cost and even free sources of legal materials, they are the big guys on the block for a reason, and they act with the monopolistic verve that comes from their position.
I've never actually downloaded a brief from Westlaw (or Lexis). I've never even looked into just how it works or what it would cost.
I have gotten some briefs from court websites, but being able to do that is a comparatively new phenomenon and doesn't include any useful search functionality. Professional associations, both paid and not, have provided me access to some brief banks. And I'm less formally associated through professional organizations with lawyers around Ohio and around the country who are more than willing to make at least some of their briefing available to me and others who have related issues.
But buying appellate briefs? I never thought of it.
My limited understanding of the copyright law issues (derived almost completely from what I've read this morning) is that the infringement issue is an open question and far from frivolous.
Ultimately, though, I think my real complaint isn't with Westlaw or Lexis. This is a capitalist system, like it or not, and they're doing what they're supposed to. But where do the courts get off giving them my briefs (or selling them, which is even worse) so the big boys of legal research can make a buck off them.
And dammit, if someone owes me money, I want my check.
By the way, I hold a copyright on this stuff. Quote away, but give me credit.