another copyright infringement class action – this time in the us

Those silly Americans. Always copying great Canadian innovations, like class actions for copyright infringement by lawyers against large legal publishers. You’ll recall I put up a short post yesterday on a lawsuit along those lines that was recently certified to proceed. I’m a bit behind in my reading – apparently a similar suit was filed last week in New York, again by lawyers, and this time against Westlaw (a subsidiary of the target of the Canadian action, Thomson Reuters) and LexisNexis.

More details on the action in the Wall Street Journal (along with a copy of the claim), The Volokh Conspiracy and the ABA Journal. I’ve included the last link more for the comments, just to give a sense of opinions on the topic (which, perhaps not surprisingly, are all over the map). Volokh offers a brief analysis, plus another spirited debate in the comments.

Nice change to be first, I suppose.

mass copyright infringement suit by lawyers given go-ahead

The Lawyers Weekly reports that a class action lawsuit accusing Thomson Reuters of “mass copyright infringement” was given the green light to proceed last week. There’s a good summary of the facts in the article, but here is my 30 second summary of the summary:

  • lawyers write pleadings, motions, affidavits and other legal documents which are filed with the courts
  • because they are filed with the courts, they are (for the most part) in the public record – anyone who pays a fee can get a copy, but typically only in (somewhat inconvenient) hardcopy
  • Thomson developed an electronic database where it did all the heavy lifting – it went to the courts, paid the fees, collected the hardcopies, scanned and digitized them, and made them available in a convenient and searchable form to subscribers – for a fee

The plaintiffs’ bone of contention is that, while Thomson did do a fair bit of work and paid the relevant court fees as would any individual requesting the same documents, it did not license their use from the authors of those documents, nor pay them for such license. Therefore, Thomson should be found liable for copyright infringement.

There was a good post and interesting discussion on this case on Slaw back in 2010 when the class proceeding was first started, with a number of comments arguing for and against. I was amongst the commentators and my initial reaction, primarily from the perspective of “black-letter” copyright law, was that the plaintiffs seemed to have a reasonably good case, while comparatively, the defendants seem to have a rather weak defence.

Since then, and after giving the matter a bit more thought, I’ve become a bit more ambivalent. There are some competing policy objectives (each of which has its merits) that will need to be considered by the court. One of the distinctions that seem to be made in this case is the fact that Thomson has, apparently, profited quite handsomely from this service, whereas (presumably) individuals who request a single copy do not. Perhaps this is a straw man of my own construction, but I would have thought that many individuals who request copies of pleadings are lawyers, who use such documents in order to do their work, and thereby generate fees. Would it therefore be appropriate to distinguish between the two? Should fair use encompass use through one medium (hardcopy), but not another (digitized and searchable)? Should Thomson’s efforts in taking the time to obtain copies and digitize, index and sort them entitle it to earn a profit from its efforts without an obligation to compensate the original authors? After all, what subscribers are really paying for is not access to the documents themselves, but rather, I would think, how the documents are accessed – it is more cost-effective for them to pay a fee to access pleadings and the like in easily searchable and downloadable form from the convenience of their desk than to schlep around to courts to manually find and retrieve the same documents.

Of course there are other considerations as well – public access to the courts and to the public record, and a number of others. Certainly raises a number of thorny questions. If of interest, I’d encourage you to visit the Slaw article I mentioned above for somewhat more learned debate than my cursory ramblings.

Also, apparently the court chose to certify some (but not all issues). From the article:

The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) “reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as the author or owner of court documents?” or  (2)  “authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?”

The judge also certified common issues raised by Thomson’s defences: “Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?”

Moreover, “did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?”

Certified as common issues as well: “are class members entitled to injunctive relief” under s. 34(1) of the Copyright Act; and “does Thomson’s conduct justify an award of aggravated, exemplary, or punitive damages?’

free legal advice (at least in California, for now)

And no, I don’t mean this blog, because as you know I don’t dispense legal advice here.

In any event, read about a new startup called LawPivot in an entry from the venerable TechCrunch. It’s described by TC as “a self described “Quora for legal” that allows technology companies to confidentially ask legal questions to expert attorneys.” And currently, for free. By the looks of it, seems to be limited to California for the time being. But hurry! Apparently the business model is to eventually charge both the askers and the askees for access.

TechCrunch seems to be bullish on its prospects. Myself a bit less so. I would think that one of the drivers of something like this would be to develop a critical mass of legal information or advice, much in the same way that many law firms have started developing massive indexed and searchable databases both for their internal use and sometimes for access by clients. Limiting it to one-off queries seems to limit the ability to leverage advice and to result in, to some extent, a duplication of efforts by the various lawyers seeking to impress a potential client.

But who knows. Perhaps they plan to leverage content in some other way at a later stage. Worth keeping an eye on. And of course, if you’re in Calfornia, worth giving a spin if you’re looking for some free legal advice.

taking the fun out of blogging

As a lawyer, I understand the need for policies, procedures, practices, etc. when running a business, managing vendors, employees, etc. Of course. Sure. That’s part of work – both my work and the work of my clients. But when I see an article entitled “Blogging Policies and Best Practices for Lawyers and Law Firms” well, gotta say, my eyes start glazing over.

Not that there’s anything particularly bad or wrong about the article. In fact, it offers some good advice on avoiding “ethical minefields”, creating “powerful marketing tools” and ensuring you realize a good return on your “investment”.

Ugh. To be perfectly honest one of the primary reasons I blog is not to realize a return on investment, or to create a powerful marketing tool, but rather just to offer casual observations (or ruminations) on my work or things related to my work. In other words, its a bit of fun, as compared, for example, to writing a formal research paper, journal article, or a 100 page outsourcing contract. For those types of writing, there are many, many rules, requirements and policies to remember and adhere to, amongst other considerations. And relatively speaking, its not quite as much writing that stuff as it is posting what are ostensibly meandering ramblings about the next new thing. Don’t get me wrong, its certainly interesting and challenging work, but its not the type of thing one typically does to relax.

I guess what I’m getting at is along the same lines as the previous post about making blogging part of someone’s job. Its kind of like saying that its part of your job to chat up your friends at work on a regular basis. Its kind of like saying that there should be internal policies governing who you go to lunch with, and what you talk about over lunch. In other words, to me, it seems to take all the fun out of it. It makes it seem like work. It puts you in the mindset that it is work. And, to be perfectly honest, I think it makes it less interesting, because you’re too worried about the time being put into it. Too worried about whether you’re writing for your “target market”. Too worried about “visualizing and addressing your market”. Too worried on making your blog sound “informal and conversational”. Too worried about this, that and the other thing, none of which have much to do with the subject matter of what you’re writing about.

Of course, this is just my take on blogging and what I hope to achieve (or perhaps rather not to achieve) by doing it.

Pretexting, Ethics and Clients

Still catching up a bit – very quick post on the HP “pretexting” thing. As you may recall, HP asserted that its practice of pretexting – i.e. pretending to be someone else to get confidential telephone records – was legal. They were investigated leaks to the press by one of their board members and had resorted to this practice to try and find the leak. I had commented elsewhere long ago when this story first broke that even if it were illegal, very few (if anyone) could consider such actions the least bit ethical.

As most of you know apparently there was some disagreement as to legality and a few folks at HP were charged. Then I read this recent story about how HP was ending its special ties to Larry Sonsini, of the California powerhouse firm of Wilson Sonsini:

Sonsini – famous for decades in these parts – gained national fame in September during HP’s spy scandal hearings in front of Congress. Emails between the lawyer, HP executives and former director Tom Perkins raised serious questions about how sound Sonsini’s advice was around the practice of pretexting. He seemed to indicate that phone record fraud sounded like fair game, after being nudged in that direction by HP’s internal lawyers.

My emphasis. Its unfortunate to hear of something like this. I don’t doubt that he took the time and effort to research the law to come to a reasonable opinion on the matter before advising his client – obviously it was a very grey area of the law. In those circumstances its unfortunate that he didn’t perhaps suggest, notwithstanding the black letter of the law, that it would be unwise do take the course of action they were contemplating. That as good corporate citizens with a significant public profile, that such a practice is not something they should even consider. But then again, maybe he did and they didn’t listen (and of course he would surely have the good sense never to say that in public and embarrass a major client) or maybe he thought that such comments were not for legal counsel to make. Who knows.

The situation is not unfamiliar to many lawyers – particularly when it comes to giving opinions – lawyers are sometimes subjected to pressure to deliver the opinion that a client wants to hear rather than the one they should probably be delivering. By this I’m certainly not suggesting lawyers are delivering bad or incorrect opinions. What I am saying is that there are often grey areas of the law (which tend to be the areas on which legal expertise are sought) and in respect of which opinions can go one of two or more ways. And sometimes, the client will want to hear a certain outcome – for example, in the case of HP, I’m sure they would have liked the comfort to hear from their external counsel that their actions were legal – it would serve as some evidence that they took some degree of diligence and could serve to mitigate consequences if it turned out governmental authorities differed. If he, on the other hand, refused, or proffered a legal opinion that it was fine but qualified with a recommendation not to take such actions, HP likely would have not been very happy with him. And everyone knows what happens when clients aren’t happy.

Its an unfortunate situation to be in. Particuarly in this case, where, at the end of the day, HP still, obviously, isn’t happy with him.