Wednesday, May 10, 2006

Lawyers Copying Lawyers

Peter Lattman at the WSJ Online had this posting a few days ago:"Plagiarism is right up there with patents and the price of oil as topics du jour. Witness the rise and fall of Harvard sophomore Kaavya Viswanathan, whose hot chick-lit book ended up being pulled from the shelves amid plagiarism accusations. Then there was the humiliation suffered by Raytheon CEO William Swanson after a blogger revealed that at least half of his popular “Swanson’s Unwritten Rules of Management” was filched from other tomes.This got the Law Blog thinking: What about law firms that copy other law firms’ litigation papers? After all, with the Internet making it a snap to appropriate other law firms’ court filings, doesn’t plagiarism run rampant in the legal profession. Lo and behold, the Missouri Law Review will soon publish this article by Davida Isaacs, a professor at the Salmon P. Chase College of Law, on the validity of copyright infringement claims based on the unauthorized use of litigation documents.Several years back the now-beleaguered Milberg Weiss Bershad Hynes & Lerach made headlines when it threatened to file copyright infringement lawsuits against other law firms that borrowed language from Milberg’s court filings. Citing another example of an attorney threatening another with a copyright infringement claim, Isaacs suggests “that infringement suits against fellow members of the Bar may be on the horizon.”Isaacs, who practiced at Kaye Scholer in NY and Venable in D.C. before joining academia, argues that while most litigation documents contain elements entitled to copyright protection, subsequent use of those documents qualifies as “fair use” under the copyright laws. Fair use exists, she says, because adopting another firms’ litigation documents does not diminish those documents’ market value. In addition, regular licensing arrangements of court filings would be untenable. She also concludes that copyright actions would deter attorneys from adapting litigation papers, which would increase the cost of quality legal representation and impair the legal system’s efficiency.In effect, Professor Isaacs writes, copy away:'Every day, lawyers sit at their desks, struggling to find the right words to use in a complaint or a memorandum of law, with the hopes that those words will persuade the court or the other side of the correctness of their client’s position. A substantial number of these lawyers turn to another attorney’s work for language – sometimes simply a particularly clear paragraph describing a complex legal issue, and sometimes a larger portion containing an especially cogent legal argument – and incorporate it into their own document. This process has almost certainly been repeated for decades, and most likely for centuries. While a superficial analysis might lead the “fair use” defense to be rejected because allegedly infringing litigation documents are used for the same purpose as the original works, in few places in society do the broad protections of copyright law make less sense than in the area of litigation.'"The availability of briefs on Westlaw, at the Supreme Court's and other courts' websites also makes the process of copying briefs much easier. The creme de la creme Supreme Court firm of Goldstein & Howe has many briefs on its website, helpfully broken down by categories, consistent with the firm's extremely laudatory efforts to foster a skilled Supeeme Court bar through clinics at law schools. There are times when lawyers love to have their work product copied verbatim, for example, by the judge they are in front of. I have heard many lawyers crow in reading an opinion that "this was lifted right out of our brief, word for word." I had a less pleasing experience many years ago in the Second Circuit when the late Irving Kaufman, in a fair use opinion in a case I was not involved in, copied verbatim passages from my fair use treatise without attribution, down to the way I had capitalized things. Scholars too love to be copied, but with attribution.Verbtaim copying by judges happens most often in the factual recitation of an opinion, but it can and does happen in the analysis section. With findings of fact and conclusions of law, judges frequently merely endorse one side's work product. But what about laywers copying from lawyers in unrelated cases? In addition to Professor Isaacs' forthcoming article, Judge Stanley Birch of the Eleventh Ciircuit took a look at the issue in "Copyright Protection for Attorney Work Product: Practical and Ethical problems," 10 J. Intell. Prop. L. 255 (2003), suggesting to a firend whose work was copied, "sue the bastards for copyright infringement." Lisa Wang in a law review note looked at protectibility, "The Copyrightability of Legal Complaints," 45 B.C.L. Rev. 705 (2004).I have no doubt that a brief as a whole is copyrightable, but there are a number of different scenarios where copying may or may not be excused and which therefore raise different issues. Most lawyers I think would be upset if a great brief was copied in whole with a different firms' name slapped on. Lifting research is common and unobjectionable, as is the copying of winning little passages. Lifting whole parts to demonstrate that the lawyer has taken a different position in a past case is a common tactic (whether it is relevant if done for a different client is a different question). In the end, for the most egregious examples, courts and bar associations are probably the better venue for complaints than a copyright suit.

13 comments:

Fred von Lohmann said...

Of course, the copyright questions arise not only when a lawyer cribs language for use in her own brief ("plagiarism"), but also when briefs are posted for archival and research purposes (EFF has posted hundreds of briefs on its website, for example). I don't believe Westlaw gets permission before posting briefs in its database (at least, they didn't ask me before posting my briefs).

It's always seemed to me that the issue is one of fair use, not whether briefs are protectible in the first place.

greglas said...

Would the Veeck decision be at all relevant relevant to pleadings, do you think? Just to jog your memory:

http://www.constructionweblinks.com/Resources/Industry_Reports__Newsletters/May_17_2004/supreme.html

Also, if we're building a list of articles, Larry Ribstein and Bruce Kobayashi have a brief discussion of copyright in legal pleadings in this piece:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=501548

William Patry said...

I don't think West does get permission, but will ask. Thanks for posting other discussions of the issue.

John Noble said...

The author of a pleading grants a limited implied license when the pleading is filed because he knows the court files are subject to a statute or court rule entitling the public to "inspect and copy" public records. Westlaw is just the electronic version of the paralegal sent to the courthouse to copy a file and bring it back to the firm.

Alternatively, you could invoke the idea-expression dichotomy or merger doctrine. Defendant's Motion for Summary Judgment in in Smith v. Doe becomes a "fact" when it is filed as docket entry no. 18 in Case No. 04-0001. There is only one way to express that "idea" because the expression is the idea.

But both approaches have their limits. The implied license does not extend to making a derivative, as when the brief is copied with minor modifications, and filed as Defendant's Motion for Summary Judgment in Smith v. Jones, Case no. 04-0002. Even where Smith has filed the same complaint against Jones, who has the same defense as Doe, it is then an idea that can be expressed in more than one way. Fair use takes over.

Max said...

Of course taking legal action would require that the law firms register their copyright, and that idea would have to be "the brainchild of some ferret-faced shyster, serving a brief apprenticeship ... hot out of law school, hungry for success and too ambitious to follow the natural laws of promotion."

joshua wattles said...

Just off-hand, isn't there an argument that briefs filed in court by a lawyer admitted to that court are governmental works because the writing and composition of the brief is done by an officer of the court acting as an officer of the court under rules as directed by the court and containing only such content as the court permits (at the same time as the "author" is representing a client)? And, any judge pretty much has the power to publish the brief anyway the judge wants to or to restrict the publication of the brief (within certain limits, of course, dictated not by copyright but by the 1st Amendment). This would mean with respect to the US courts that the briefs are in the public domain.

William Patry said...

An implied license theory still raises the question of scope: implied for use by the judge and opposing counsel, but would it really be implied that another firm in an unrelated case could copy the whole thing make mutatis mutandi changes? And how would such a use be transformative, assuming that concept still has any meaning?

GemLaw said...

Then, of course, there's the issue of damages. Statutory damages are likely not available unless the firm makes a practice of registering copyright in all its pleadings (which would come with its own set of problems). Actual damages would seem to be so limited in most cases as to make any suit uneconomic.

William Patry said...

Good point Gemlaw, although there is still injunctive relief. Some attorneys do register though.

Anonymous said...

This issue raises myriad interesting academic arguments regarding fair use, etc.

While theoretically I see no reason why pleadings and other court papers could not enjoy copyright protection (assuming the author can demonstrate the requisite originality, etc.), I agree with Prof. Patry that as matter of public policy it makes little sense for them to do so. Moreover, legal actions over infringement of copyrights in court pleadings could quickly turn into an ungodly morass. (The potential 504(b) infringer profit issues alone make my head spin!)

However, I don't buy the idea that mere filing with the court evidences an implied license or dedication of the materials to the public domain because the filer knows that the materials are available for public inspection and copying. Copyrighted materials are routinely filed with public authorities for public review (e.g., building plans filed for zoning or building permit purposes). The courts have consistently found that such does not even constitute publication, much less an implied license to the public or abandonment of any copyright.)

Were we ever to start seeing a significant number of cases being filed on this issue, I suspect that federal district judges could and would quickly squash it by local rules or standing orders. E.g., (1) local rule that as a condition of admission to practice in that court, attorneys agree that they abandon all copyrights in pleadings they file in that district, (2) standing order that unless prior leave of court is obtained, attorneys filing papers in the case are deemed to have abandoned any claim of copyright in them, etc.

Perhaps the Federal Judicial Conference should consider this approach.

LKB in Houston

William Patry said...

LKB makes a good point, which is that the filing of documents with government agencies has not, by itslef, constituted either forfeiture of protection or a license beyond the purposes for the filing. For example, filing architectural plans with the local zoning board wouldn't result in competitors being able to copy them to construct identical buildings.

In other cases, though, extensive copying might be implied, for example, a compilation (assuming it is protectible) of political contributors filed with the Federal Election Commission should be freely made available by at least public interest groups interested in the influence on money in politics (there is none, of course).

Thos said...

When the UK was struggling with copyright for industrial designs in the '70s, Mr Justice Whitford proposed that the inclusion of drawings in a patent abandoned the copyright to the public (Catnic v Hill & Smith, 1977). There is something in that notion, I think, though courts in other jurisdictions have generally declined to take up the idea.

Anonymous said...

But who owns the right (copyright) to the pleading, the lawyer or the client who paid the lawyer to create the pleading?