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Sunday, May 27, 2007

Law - "Is It OK for Lawyers to Copy Complaints?" And what about copyrighting briefs?

The Wall Street Journal Blog had a thought-provoking entry May 16th asking "Is It OK for Lawyers to Copy Complaints?" Peter Lattman of the WST Blog writes that of the two class-action lawsuits he had reviewed this month, the second "bears a striking resemblance to" the first, filed by another firm. Lattman contiues:

Last year we linked to a law review article on this topic. Law professor Davida Isaacs noted that “infringement suits against fellow members of the Bar may be on the horizon,” but said this would be a bad idea. Copying another firm’s litigation documents, she said, should qualify as “fair use” under the copyright laws because it doesn’t diminish those documents’ market value.
The 56-page article is titled "The Highest Form of Flattery? Application of the Fiar Use Defense against Copyright Claims for Unauthroized Appropriation of Litigation Documents," by Davida H. Issacs and appeared in the Missouri Law Review.

There are a number of interesting comments following the entry, including "Comment by IP lawyer - May 16, 2007 at 5:08 pm," "Comment by Frank Pasquale of ConcurringOpinions.com - May 16, 2007 at 5:24 pm ," and "Comment by Professor Davida Isaacs - May 17, 2007 at 12:42 am."

As for copyrighting briefs, apparently that was an issue several years ago but I haven't been able to find anything more recent than a brief discussion on the Law Librarians listserv from 4/17/02 referencing a "story on Marketplace (from Minnesota Public Radio and PRI) focused mainly on Milberg' disenchantment with other class-action litigators scanning, editing and filing briefs they had written." Using that, I was able to locate the Marketplace show from Tuesday, April 16, 2002. Here is the show description, including a link to the audio. The segment of interest:

Copyrighted Briefs
No, not those kind of briefs. Wouldn't you know it. Lawyers are in the habit of copying each other's legal briefs. And some lawyers -- those whose work is often duplicated -- are looking to copyright their documents, to prevent just this sort of thing from happening. But is this practical, in a branch of our social system that is so dependent on precedent? Amita Sharma has the story.
The segment (just over 3 minutes long) starts at 10:40 minutes into the program, and those interviewed pretty much put a damper on the idea, which may be why we haven't heard much about it in the past 5 years.

Posted by Marcia Oddi on May 27, 2007 10:57 AM
Posted to General Law Related