Friday, June 25, 2010

Taking Down the Big Guys

Back in July last year, I wrote about how Westlaw and Lexis (the 600 pound gorillas of on-line legal research) were apparently buying appellate briefs from courts and selling them to their customers.  Capitalism at work, I noted.  But also, maybe, copyright infringement.  At least, that was the position of Connor, Fletcher & Williams LLP of Irvine, California in a letter of complaint it sent to the California Supreme Court.
As I said in that post, I'd known for a while the Westlaw was selling appellate briefs.  It just hadn't occurred to me that I could have been doing that.
[P]erhaps 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.
More to the point, it never occurred to me that I could still make a buck off of it.
Now, it turns out, there's an actual lawsuit.  A class action, no less.  For $51 million.  Of course, it's Canadian money, but still, that's a whole lot of cash.
Lawyers Weekly reports that Toronto immigration lawyer Lorne Waldman is suing Westlaw's parent, Thomson Reuters, in a Canadian court for mass copyright infringement.
The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee, more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.
“The defendants have created a service whose sole purpose is to carry out mass copyright infringement for their own financial profit,” Waldman alleges in a May 25, 2010 statement of claim whose allegations are disputed by Thomson Reuters.
Argues Waldman, “in addition to asserting that they own copyright in legal documents they did not create, the defendants seek to trade on the name and reputation of the lawyer and /or firm who actually drafted the document by showing (and permitting searching by) lawyers and firm names.”
I'm no expert on copyright law - certainly not on Canada's.  But the quick and dirty research I did last July suggests that there's a legitimate claim here.  And good for Waldman for making it.  It's about time someone did.
Peter Friedman, though, thinks the case will go nowhere.  He writes on his blog, that the court will probably never reach the merits of Waldman's case.
Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.
Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.
In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.
Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.
(The links are Friedman's.)
Friedman may be right, though I hope not.  And, frankly, I hope Connor, Fletcher & Williams or someone else will do the same thing on this side of the border.  
I could use the 10 bucks from the eventual settlement.  More than that, though, I'd like to see Westlaw and Lexis knocked down a peg.  They're big.  They're bullies.  And they mostly get away with it. 
Once again, this is my work.  My fellow bloggers are free to quote and refer (credit would be nice, of course).  Westlaw and Lexis may link to my work.  But if they want to quote, I'll be happy to charge fairly.  And if they want to sell what I write (either here or in a legal brief) to other folks, 


  1. Jeff,

    I was about to write up something about this myself, as it's been discussed on Solosez recently. I researched this issue ten years ago, because I was anticipating just this situation. My article was published in the Legal Times IP Report, but you can also access a close to final version here at my site, (bear in mind that his research is from 2001 and may be out of date) My article has also been cited in these articles, and ironically, in this one - published by West which cautions that briefs are copyrightable!
    As I wrote in my original article, I am all for open source. I think that sharing briefs can make all of us better lawyers - either by giving insight into great writing or a look at poor writing. If PACER had evolved in a way that made briefs free and readily searchable, I probably wouldn't complain about Westlaw. The problem with Westlaw is not only is it harvesting our briefs and reselling them for profit, but many of us solo/small fry who can't afford the Westlaw add-on are being made worse off - since our opponents have ready access to our work and we don't have comparable access to theirs.
    I will probably do a post on this as well.

  2. This pisses me off. Seriously. I work my ass off on this stuff and they want to take it and resell it so folks can put their name on it and claim its their original work? I've had people share their briefs, er, legal writing with me. I've asked, and they've obliged. But I wouldn't take it, sign it, turn it into court and tell my client we've got a winner because of the motion I wrote. I call BS. Yes, that's my legal theory on this. BS.

  3. You're absolutely right, Carolyn, about how those with smaller pockets) are disadvantaged by what West and Lexis do by selling briefs. On the other hand, that's capitalism. Those with smaller pockets will always be at some disadvantage. (I'm not endorsing capitalism or the disadvantage, just observing.) I don't know enough about copyright or any other related area of the law to know whether that makes a legal difference.

    Frankly, I'm more bothered by the fact that those guys are making money selling my work product.

    As I said when I wrote about this before, I'm generally willing to make written briefs and motions available to any lawyer who asks. But I sure wouldn't do it if I thought the recipient was just getting them in order to sell them to third parties. It's the part about a business taking what's mine and profiting from it that pisses me off.

    Though I think I'd be pissed, too, if I thought that the lawyer I sent a brief or motion to just changed the caption, filed it, and told the client that it was her own brilliant work product.

    In fact, I've had the curious experience of seeing a motion I wrote filed, verbatim, by a lawyer I didn't know and to whom I hadn't sent it. There can be something a little creepy about that.

  4. I am intrigued by Peter Friedman's argument that the Waldman v. Lexis/Nexis class action suit will not survive a class certification motion. Particularly so, since he does not practice class action litigation in Ontario.

    Section 5(1) of the Class Proceedings Act is broadly interpreted by Ontario courts in a purposive and generous manner, usually centered on the commonality requirements. The requirement is not simply originality as Friedman posits. This is not a situation of boiler-plate pleadings. Some facta (briefs) contain significant original content. All of the court documents have been scanned, republished and/or converted into different formats. As pleaded, Waldman's factum in the Arar case is alleged to be an original work based upon his acquired legal knowledge, work product and expertise. It is original insofar as he was the author of the legal document. Whether or not it is subject to copyright protection and disgorgement or related remedies (which Waldman has indicated would be donated to charity if awarded) is the ultimate legal issue. I have a few of my facta and pleadings published on the Westlaw Lexis/Nexis database. Once these documents are filed, they become public record, so anyone can attend, pull the file and copy the document for research purposes based upon fair use. If the client pays for the work, the client does not own the document, but has an unrestricted license to use the document. However, in the proposed class action, Waldman asserts that Lexis/Nexis has improperly asserted copyright over all court documents which they have assembled, digitized and made available to subscribers for a fee, without any prior consent or sharing of licensing fees.

  5. Jeff, I responded on this at Greenfield's shop and will reiterate here.

    The complaint about profiting off your work product strikes me as pretty iffy. For starters, most routine filings fall into the cookie-cutter category. Plus, when you file a motion in court it becomes a public record. Lexis purchases, packages and sells that public record to somebody else, which happens every day with all types of public information (real estate deeds, driver license info, corporate SEC filings, etc.). Even if Lexis didn't do that, the information is publicly available at the courthouse for anyone diligent enough to look.

    If another lawyer copies what you did, I don't see where you have grounds for complaint against Lexis anymore than against the district clerk who also distributed the information. Your beef would be with the individual lawyer who copied you, and even then in most cases the alleged plagiarism isn't wholesale and would probably fall under fair use unless it was. Lawyers have been copying each other's briefs for generations. It's ever been thus; the Internet just makes it easier and more obvious. It's not like your filings were ever trade secrets.

  6. As I said, I don't really mind the plagiarism of my work (though I understand from the comments here and elsewhere that some people do). My bitch (and I don't pretend to know enough about copyright law to know whether my complaint is legally actionable - just enough to know it's not altogether frivolous to make the argument - is that Lexis and Westlaw are making money selling my work product.

    A brief that's filed and not under seal is, I recognize, a public record. And I wish the courts would do a better job of making them widely available for free, by the way. But the fact that it's a public record doesn't stop it from also being someone's work product. In that way, it's not like a drivers license or real estate deed or a statute or court decision. And, if not filed, it would certainly be subject to copyright - and maybe even if it is filed.

    So where do the big guys of legal search get off selling it to other folks? It may be legal. It doesn't strike me as proper.