Are Briefs Copyrightable?

Our thanks to the Cleveland Law Library, the Law Librarian Blog, and the Volokh Conspiracy for this one.

"Briefs filed in court are part of the proceeding's official record, but distribution of them by Lexis, Westlaw and other commercial online service providers may infringe on the copyright of their authors," the Law Librarian Blog reported back on July 24th..

"The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer," Eugene Volokh had reported the day before.

"I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations."