Two lawyers have filed a federal lawsuit against Westlaw and LexisNexis, alleging that the popular online databases have violated federal copyright laws by posting materials written by attorneys on their databases without that attorney or law firm’s permission.
The lawyers allege that the two databases have infringed on their copyrights by profiting off of memoranda, briefs, motions and other materials that the attorneys have created without seeking permission from the attorneys to post their work.
Edward L. White, an Oklahoma lawyer, and Kenneth Elan, a New York lawyer, have filed the suit on behalf of two classes of lawyers — those who have registered their work, like White, and those who have not, like Elane. The lawsuit seeks class action status for all similarly situated individuals.
White and Elan are seeking “damages, disgorgement of profits, a declaratory judgment and an injunction to prevent further infringement” because LexisNexis and Westlaw have allegedly engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them."
These two databases make the content available to subscribers for a fee.
“The case is not really about attorney profit so much as it is about attorney’s having control over their work products and being able to decide for themselves who has the right to copy their work, who has the right to sell their work and who has the right to make derivative copies of their work,” said Gregory Blue, attorney for the plaintiffs.
Attorneys' work product is often available to the public through various court websites. Blue said this should not matter because even though the documents at issue are available for people to see, that does not mean that anyone can turn around and copy the material for profit. For example, if a person registers his work with the U.S. Copyright Office, that person has to send a copy of his work to the Library of Congress, where it will be made publicly available for everyone to see. “But that certainly does not mean you have a right to go into federal records and copy it and sell it for a profit,” Blue said.
The issue in court will likely be whether the databases’ use of these documents constitutes fair use, but "it is harder for an infringer making alot of money off of it to argue fair use," said Steve Smit, an attorney in Texas who specializes in intellectual property law.
Smit said he questions whether fair use will be a defense because "courts look down on a defense of fair use when the defendant copies verbatim whole documents."
The defense could use the argument that copyright protections may not be particularly strong in this case because the material is available for people to see on court websites, Smit said.
However, Smit said he believes copyright infringement could be found if it is ultimately decided that "the databases have gone too far," especially since the two databases have profited from the work.
"The question I have is whether the briefs, motions and pleadings are authored by the attorneys or whether they have taken the material from other places?" Smit said.
If the attorneys have copied and pasted material from other briefs without citation, Smit does not see how it could qualify for protection, Smit said.
Representatives for Thomson-Reuters, owner of the Westlaw database, declined to comment due to the pending litigation. Representatives for LexisNexis were not available for comment.