As explained in this article by Jessica Dye, U.S. district judge Jed Rakoff has thrown out a suit brought by a lawyer against Westlaw and Lexis claiming a copyright in documents he created and filed in court. That may be good news for consumers looking for access to court documents. The case is called Edward
White v. West Publishing Corp, No. 12-1340 (S.D.N.Y.).
Westlaw and Lexis make many federal-court briefs available on its databases for a fee. Federal-court briefs and all other pleadings are available on the U.S. Courts electronic filing system, PACER, also for a fee. Then, there's RECAP, the free, though incomplete, version of PACER, which contains thousands of briefs. And of course lawyers and non-lawyers alike pass around other lawyers' briefs on the Internet all the time. That makes those briefs freely available to be appropriated for use in other briefs and arguments made by profit-seeking and non-profit lawyers (as well as by consumers acting as their own lawyers). The freer the flow of court-filed information the lower the cost of law practice and legal understanding.
According to Dye, Westlaw
and Lexis argued "that they were entitled to use
the documents under the doctrine of fair use …. They noted that the documents were generally available
to the public via the Pacer filing system. They also argued that
their use of the documents was 'transformative,' taking the
documents and enhancing them to make them searchable and useful
for legal practitioners."
Judge Rakoff said that he was dismissing the suit and would issue an opinion later.