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Who Owns Publicly Filed Documents?

03.23.12

My recent blog about the copyright class action suit about the ownership of pleadings filed in federal and state courts around the US has intrigued many. In the aftermath of the Watergate scandal in the 1970’s state and federal governments have become more open.  Anyone can get information whether posted on government websites, or by requests to a federal agency under the Freedom of Information Act (FOIA) or to state under open records laws (like the Texas Public Information Act).

Today lawyers file documents electronically in most federal court using a system known as PACER, and in many state courts using a variety of systems (like the Texas eFiling System which Texas Supreme Court Judicial Committee on Information Technology started years ago, and which I was founding Chair for 12 years). As a result, the federal and state courts (and clerks of courts) maintain electronic copies of those pleadings. Under our open government anyone can get a copy, if not filed under seal for confidential reasons, for some nominal fee or free.

Under the Copyright Act the moment the author creates a work it is copyrighted and unless assigned to another, the author retains the copyright. So when lawyers draft pleadings they appear to clearly be the author under the Copyright Act and there is nothing that changes that when the lawyers file those pleadings with courts.

So in the White vs. West case that was the subject of my recent blog, Edward White and Kenneth Elan White allege:

West and LexisNexis have engaged 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….

In doing so, West and LexisNexis are infringing the rights of the very clients they purport to serve.

What do you think about White and Elan’s claims?
 

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