West Publishing and Reed Elsevier Free to Include Legal Briefs in Databases

On July 3, 2014, the U.S. District Court for the Southern District of New York issued a decision allowing West Publishing and Reed Elsevier to include unsealed legal briefs filed by lawyers in federal and state courts in their respective databases, West Litigator and Lexis BPM. Confirming and explaining an order initially issued on February 11, 2013, the district court found that the inclusion of the briefs in the legal databases constituted fair use under Section 107 of the U.S. Copyright Act. In considering the first statutory fair use factor, the court held the inclusion of the briefs was transformative because (1) the publishers purpose was to create an interactive legal tool whereas the lawyers use the briefs to provide legal services and (2) the annotations and editorial decisions added by the publishers created a work with a different purpose from the original. In evaluating the second factor (the nature of the original work), while holding that even though the briefs were filed in the public forum, they qualified as “unpublished” works, the court concluded that the nature of the briefs was a functional representation of fact and law such that this second factor weighed in favor of fair use. Reviewing the third factor (the quantity of the work used), the court acknowledged that defendants copied the entirety of each brief, but found that the database functionality depended on access to the entirety of the brief and therefore was “reasonably necessary” for the transformative use, holding the third factor as neutral. Finally, the court held that the publishers’ use did not impair the market for the briefs because while there is a market for the underlying legal services, the plaintiff did not submit any evidence that they lost any clients because of the use and did not show there is any market to license or sell the filed briefs.