Oklahoma City intellectual property lawyer Edward White and New York commercial litigator Kenneth Elan are suing the blackletter law publishing giants West Publishing and LexisNexis over the collection and sale of copyright-protected legal briefs and memoranda, in what appears to be the first case of its kind in the US.
According to the New York Law Journal, the lawyers are seeking damages for the ‘unabashed wholesale copying of thousands of copyrighted works created by, and owned by, the attorney and law firms’.

Fair use

New York-based lawyer Gregory Blue represents the claimants along with Raymond Bragar of Eastside Manhattan firm Bragar Wexler Eagel & Squire. Mr Blue told the Journal: ‘What if West or Lexis had decided to put out a series of books of the best legal briefs in the United States and sell them in Barnes & Noble? I don't think anyone would have any question they were violating copyrights. The fact that they are making this available on a more massive scale or form doesn't change the copyright analysis.’
The case rests on the issue of whether publishing the content produced by the attorneys constitutes fair use.

Transformative

Law Journal columnist and author of the forthcoming Copyright Law Deskbook, Robert Clarida commented: ‘I can certainly see an argument that it's an infringement and I can certainly see an argument that it's fair use. Fair use is very fact-specific and it's hard to predict the results in one case based on the results in others. The problem is that fair use has become a matter of whether the use is transformative so, you have to ask yourself, in what way is the use transformative here?’