Goodbye to Online Research? Class Action Complaint Filed Against LexisNexis and Westlaw for Copyright Infringement
Anyone in law school or affiliated with the legal profession is familiar with Westlaw and LexisNexis. They are the two giants of the electronic legal research business in the United States and are so ubiquitous that education in their use is standard in law school. Their fee based service includes access to searchable databases containing cases, statutes, briefs, and a variety of other resources. Most of this material is free to use by them or anyone else because statutes and court decisions at both the state and federal levels are public domain. The status of non-government briefs and motions that make their way through the courts is more ambiguous. Attorneys Edward L. White of Ohio and Kenneth Elan of New York have taken action to test the status of these documents by filing a copyright infringement suit against Westlaw and LexisNexis. The lawsuit alleges “wholesale unlawful copying of thousands of copyright-protected works” and the “[selling of] access to those works … for huge profits.” They seek damages, profit disgorgement, and injunctive relief.
According to UCLA law professor Eugene Volokh the plaintiffs actually have a fairly decent argument because filing the briefs in court “doesn’t waive any copyright” which turns this into a murky fair use question with “no clear answer.” Fair use protection is detailed in Title 17 section107 of the U.S. Code and stipulates that certain uses of protected materials are not infringement. These fair uses include criticism, reporting, and education. Determining fair use occurs by applying a four factor test the code provides. As noted by professor Volokh there isn’t really much precedent to draw from in interpreting the outcome of this case, but running through the fair use factors is an interesting thought exercise.
1 – The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
This factor splits right down the middle in my mind. Westlaw and LexisNexis are clearly aggregating the material to charge subscription fees for access but the material is primarily used for research and educational purposes. It is important to note that the court where this case was filed has previously held that the public benefit is not offset by the fact that the defendant’s motive is commercial gain. Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968). The Time, Inc. case, involving photographs of the Kennedy assassination, departs fairly significantly from the details of the current case.
2 – The nature of the copyrighted work
The nature of the copyrighted work in this case is one that people may disagree on. It is factual but not a simple listing of facts. Significant effort generally goes into making a persuasive argument. I’ve bounced this around with peers and have heard very different opinions on whether or not this constitutes “creative work” that should be protected or if merges with the publicly available court material when it is entered as part of a case. I tend to lean towards the latter position.
3 – The amount and substantiality of the portion used in relation to the copyrighted work as a whole
There’s not really anything to discuss here. The material in question is copied and made available in full. This factor heavily favors the plaintiff.
4 – The effect of the use upon the potential market for, or value of, the copyrighted work
In my opinion the outcome will be decided primarily on how the court analyzes this factor. In Time,Inc., the court suggested that perhaps the most important part of the fair use test is the damage or injury that the plaintiff suffers. Id. The court found in favor of the defendants under fair use largely because the plaintiff could not demonstrate competition between the plaintiff and defendant and “no market for the copyrighted work appear[ed] to be affected.” I suspect that the plaintiffs in this case will struggle to demonstrate that they are in competition with Westlaw and LexisNexis or that they have been financially impacted by the existence of their research sites.
As a law student this suit is fascinating to me. An injunction against Westlaw and LexisNexis would presumably be crippling to legal research at the academic and professional levels. I suspect that the court will interpret this case as somewhat frivolous and not be particularly generous to the plaintiffs on the close questions. You can’t know until you try though and the attorneys bringing this suit certainly plan to find out.