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, 

Ka-ching.

Copyright by me

I'm basically an appellate lawyer, though I do other kinds of litigation, too. So when both The Volokh Conspiracy and Simple Justice picked up the story of how Westlaw and LexisNexis may be infringing my copyright by making briefs I'd written available, I had to check it out.

Here's how it started.

It seems that lawyers at Connor, Fletcher & Williams LLP in Irvine, California, noticed that a brief they had filed in the California Supreme Court (Edmond Connor of the firm describes it as "a 143 page brief[] that had taken us hundreds of hours to prepare in an employment discrimination case that we were handling on behalf of an indigent client") was "being marketed and sold to other attorneys by LexisNexis." So Connor wrote to the California Supreme Court and complained about copyright infringement. (His letter is here.)

I suppose I might have been surprised to discover that, too, depending on just how Lexis was marketing" the brief. But I've actually been aware for some time that Westlaw has at least some appellate briefs available in its system (including some from Ohio, by the way). On the other hand, and perhaps 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.

Heck, I've freely sent copies of my briefs to other lawyers who are addressing related issues. Please, I say, plagiarize my work if it will help.

Still, there is something offensive about what Westlaw and Lexis are doing - and what the courts are helping them do.

Let's start with the easy part. I use Westlaw all the time. I use Lexis less often but occasionally. The services are both invaluable and offensive. They charge too much. They sometimes complicate what should be simple. Despite a proliferation of low cost and even free sources of legal materials, they are the big guys on the block for a reason, and they act with the monopolistic verve that comes from their position.

I've never actually downloaded a brief from Westlaw (or Lexis). I've never even looked into just how it works or what it would cost.

I have gotten some briefs from court websites, but being able to do that is a comparatively new phenomenon and doesn't include any useful search functionality. Professional associations, both paid and not, have provided me access to some brief banks. And I'm less formally associated through professional organizations with lawyers around Ohio and around the country who are more than willing to make at least some of their briefing available to me and others who have related issues.

But buying appellate briefs? I never thought of it.

My limited understanding of the copyright law issues (derived almost completely from what I've read this morning) is that the infringement issue is an open question and far from frivolous.

Ultimately, though, I think my real complaint isn't with Westlaw or Lexis. This is a capitalist system, like it or not, and they're doing what they're supposed to. But where do the courts get off giving them my briefs (or selling them, which is even worse) so the big boys of legal research can make a buck off them.

And dammit, if someone owes me money, I want my check.

By the way, I hold a copyright on this stuff. Quote away, but give me credit.