In opinion Friday, explaining a “bottom line” order from last year (see our prior post here), Judge Rakoff ruled that Westlaw and Lexis do not violate copyright laws by reproducing publicly filed legal briefs. He ruled that the practice is protected as “fair use.” Among the factors weighing in favor of fair use were that Westlaw and Lexis (i) “transform” the briefs and (ii) do not impede a market for them:
The Court finds that West and Lexis’s use of the briefs was transformative for two reasons. First, while White created the briefs solely for the purpose of providing legal services to his clients and securing specific legal outcomes . . ., the defendants used the brief toward the end of creating an interactive legal research tool. Second, West and Lexis’s processes of reviewing, selecting, converting, coding, linking, and identifying the documents “add something new, with a further purpose or different character” than the original briefs. . . . Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them. Although White argues that Lexis and West impede a market for licensing briefs, the Court finds that no potential market exists because the transactions costs in licensing attorney works would be prohibitively high.
Our prior posts on the case are here.