Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

SCOCAL in the news and its recent growth spurt (with a new feature in development too).

Our Supreme Court of California Resources  database  (SCOCAL) is in the news!  There is an item about the project on page 2 of the  Stanford Lawyer just-out Spring 2011 issue (Volume 45, Issue #2), “California Supreme Court Opinions and Annotations Online.” 

We have 67 students in our Advanced Legal Research class this spring (67!) and they each have to write two annotations.  The first is due today, so 67 new annotations will be appearing online before (or perhaps at) the first stroke of midnight.

Later this summer, in partnership with a law firm, we will be adding a new feature to the database, so please stay tuned.

New Web Resource: SCOCAL: The Supreme Court of California, Annotated

We are pleased to announce the launch of our new Supreme Court of California website, SCOCAL (http://scocal.stanford.edu).

SCOCAL is a joint project between the Robert Crown Law Library at Stanford Law School, and  Justia, Inc.

The site provides free access to the full text California Supreme Court opinions from 1934 to the present, along with detailed annotations of selected cases written and edited by students in our Advanced Legal Research class here at Stanford.  For selected cases related California Supreme Court briefs, other documents and news items are also available, all free of charge. Users may subscribe to separate RSS feeds of new opinions, annotations, Court news and follow the site on Twitter.

Special thanks to FastCase for providing a large number of the California Supreme Court opinions available on the site.