In a recent brief ruling, Manhattan Federal District Court Judge Jed Rakoff dismissed Edward White’s lawsuit against legal research companies LexisNexis and Westlaw. An opinion had not been issued at the time of the ruling; however, the judge noted that the reasons for his dismissal would be set forth at a later date.
In February of 2012, Edward White and Kenneth Elan (both of whom are attorneys) filed a class action complaint against Westlaw, which is owned by Thomson Reuters Corp., and LexisNexis, which is owned by Reed Elsevier, PLC, claiming that the companies actively participated in “wholesale unlawful copying of attorneys’ copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits.” White’s and Elan’s plan was to represent two specific classes of attorneys–those who had registered their works with the U.S. Copyright Office (as White had) and those who had not (as in the case of Elan). A few months later, though, Judge Rakoff threw out Elan’s claim, stating that “completing registration or pre-registration is a prerequisite to filing a claim.”
A short time later, White dropped his class certification request in an amended complaint and sought to receive an unspecified amount in damages on the basis that his copyrighted legal briefs had been included in both Westlaw’s “Litigator” database and LexisNexis’s “Briefs, Pleadings and Motions” database. In particular, White’s Motion for Summary Judgment argued that law firms and lawyers own the copyright to their own materials and “a court’s docket is not a lawless, copyright-free zone.” However, Westlaw and LexisNexis countered that argument, stating that they were entitled to use the documents under the Fair Use Doctrine on the basis that the documents were publicly available in the PACER filing system. The companies also claimed that they actually “enhanced and transformed” the documents by making them searchable for practitioners.
A Brief Look at the Fair Use Doctrine
Generally speaking, one of the primary rights that a copyright owner holds is the right to manage and control the reproduction of his or her own works; however, there are limitations on that right, such as those found under what’s commonly referred to as the “Fair Use Doctrine” as codified in Section 107 of the copyright laws.
There are four factors that need to be considered when making a determination of whether or not a certain use is “fair.” For instance, one must look at the “nature” of the copyrighted work. Also, the “purpose and character of the use” should be taken into account, to include a look into whether the use is for nonprofit educational purposes or commercial in nature. Additionally, one must consider the “amount and substantiality” of the portion used in relation to the entire copyrighted work. And finally, one must look at the “effect of the use upon the potential market for, or value of, the copyrighted work.”
For years, courts have found that a number of activities fall under the Fair Use doctrine, such as summaries of articles with brief quotes in a news report, quoted excerpts that are used in a review for the purpose of illustration or comment, and the use of small portions of a work by a teacher or student in an effort to illustrate a lesson. Still, those interested in using copyrighted works should keep in mind that just because you intend to use it for “educational purposes,” that does not automatically mean that it will fall under the Doctrine. It will still be up to a judge to determine whether or not the use of certain works is fair, and the court typically considers such issues on a case-by-case basis, taking into account the four above-mentioned factors.
What Does This Ruling Mean for the Legal Research Companies and Others?
Naturally, one can assume that both LexisNexis and Westlaw are pleased with Judge Rakoff’s decision. In fact, John Shaughnessy, a spokesman for Westlaw, commented that the decision allows Westlaw to continue on with the business at hand. More specifically, Shaughnessy said that “briefs and other court filings have been offered on Westlaw since 2003, and have been of immense value to attorneys and others seeking access to them. This decision enables us to continue to provide this service without interruption.”
Nonetheless, there a few things that should be kept in mind by those seeking to use someone else’s copyrighted work. There is often a fine-line distinction between what can be considered infringement and what can be considered fair use. Still, there are simple ways to keep yourself out of trouble. First and foremost, the best way to ensure that you avoid infringement is to simply get permission directly from the copyright owner before using the copyrighted work. If you find that it’s not practical to get that permission, you may want to consider not using the material at all, unless you are completely confident that the Fair Use doctrine would apply in your case. Simply put: When in doubt, leave it out.