Sixth Circuit Hot Docs Opinion

On Friday, the Sixth Circuit, per Judge John Rogers, issued its opinion in the "Hot Docs" case, Ross, Brovins & Oehmke, P.C. v. LEXIS NEXIS Group. The opinion is very well written and reasoned, with a careful analysis of the facts and law. Bravo.

The dispute concerns originality and infringement of compilations of public domain legal forms, although there are a few twists involving some material that originated with plaintiff (but which were not found to be "original'). Plaintiff law firm, acting as "LawMode," contracted with defendant to create and market a system of automated Michigan state legal forms. Of a universe of something over 700 forms, plaintiff selected 576. The eventual product also included drop-down dialog boxes and templates by which data entered in one data field was automatically inserted into another, relevant field.

The parties' contract was eventually terminated by defendant, which then developed and marketed its own product. (The term "Hot Docs" refers to LEXIS' proprietary Hot Docs Pro software that was used by both parties). Plaintiff claimed the new product infringed its product. (There is also a contract claim, and that was the only part of the district court's opinion the Sixth Circuit reversed). There is some to-and-fro about how to determine the relevant percentage of forms that appear in plaintiff's work that also appears in defendant's, but the exact percentage does not seem to have concerned the court.

The court of appeals found plaintiff's selection original but not infringed, relying in part on the Second Circuit's Key Publications v. Chinatown Today, 945 F.2d 509 (2d Cir. 1991). The analysis is easy to follow, going through elements of selection and then arrangement. On the question of the material that originated with plaintiff, the court nicely distinguished Judge Posner's opinion in Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923 (7th Cir. 2003), on the issue of originality through the "interrelationship of variables in the templates," meaning data entered on one template affecting choices on future templates.