Let’s say you’ve just signed a magnificent brief, one that marshals case law and presents your client’s position in the most compelling and articulate fashion. You file it with the court, and then what? Do you register your brief with the U.S. Copyright Office? Most attorneys do not. But if you don’t register your work, can you enforce a copyright on it?
Those are the kinds of questions U.S. Senior District Judge Jed Rakoff will face Wednesday, when he hears oral arguments on a partial motion to dismiss a class action against the legal research giants Lexis and West. (Lexis is a unit of Reed Elsevier, and West is part of Thomson Reuters, my employer.) A class of lawyers, represented by Raymond Bragar of Bragar Wexler Eagel & Squire and co-counsel Gregory Blue of the firm Gregory A. Blue, claims that Lexis and West are infringing copyrights by including legal briefs in the databases they offer their subscribers.
Lexis and West have all kinds of defenses to those claims, but, as an initial matter, they’re arguing that unless lawyers have actually taken the trouble to register their briefs at the Copyright Office, they can’t sue to enforce their rights. Here’s a brief for Lexis on the issue, filed by Morrison & Foerster, and here’s West’s, by Weil, Gotshal & Manges.
Lexis and West argue it’s a well established principle of copyright law that you have to register with the Copyright Office to enforce your rights. They’ve moved to toss the claims of any lawyers who didn’t register their briefs, which, of course, is the vast majority of the purported class since most lawyers are too busy to bother and, until now, there was little need.
But according to class counsel Bragar and Blue, lawyers who haven’t registered their briefs with the Copyright Office can still sue for an injunction and declaratory judgment, even though the Copyright Act requires rights holders to register in order to sue for infringement. Bragar and Blue argued in a brief on Apr. 26 that under the U.S. Supreme Court’s 2010 opinion in Reed Elsevier v. Muchnick, U.S. district judges have jurisdiction over suits involving unregistered copyrights. And since, in their view, the Copyright Act only requires registration for infringement suits, unregistered rights holders can ask district courts for other sorts of relief – such as an injunction against future use of their work or a declaratory judgment that the work is protected. In other words, I’m not risking copyright infringement damages by linking to Bragar and Blue’s unregistered brief, but under their theory I could face a declaratory judgment suit.