White v. West Publishing Corp.
29 F. Supp. 3d 396
S.D.N.Y.2014Background
- Putative class action for copyright infringement based on inclusion of White briefs in Westlaw Litigator and Lexis BPM databases.
- White registered copyrights for Beer v. XTO briefs after Beer litigation began and after class decertification.
- Beer's court filings were accessed via PACER, making them publicly available.
- Databases transform and index documents, including redaction, linking, and archival PDF inclusion.
- Court held defendants' use of briefs was fair use under §107; entered final judgment dismissing claims with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants' use of White's briefs is fair use. | White claims use was infringement, not fair use. | West/Lexis contend use is fair use due to transformative, informational access. | Yes; use constitutes fair use. |
| Transformation of the original work weighs on fair-use analysis. | Transformation insufficient to negate infringement. | Use is transformative, adding new value as an interactive research tool. | Transformation weighs in favor of fair use. |
| Nature of the copyrighted work affects fair use. | Briefs are unpublished works; should weigh against fair use. | Briefs publicly filed and functional; weighs in favor of fair use. | Favors fair use; nature weighs in favor. |
| Effect of use on potential licensing market for the briefs. | Use harms market for licensing/alternative licensing. | No workable licensing market; usage does not substitute for original. | Market impact does not negate fair use; weighs in favor of fair use. |
Key Cases Cited
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (Supreme Court, 1994) (transformativeness central to fair use; more transformative reduces impact of other factors)
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (transformation and purpose influence fair use analysis)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (copying entire work not necessarily against fair use when necessary for transformation; market impact considered)
- Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (Supreme Court, 1985) (unpublished status weighs against fair use, but public filing undermines that factor here)
- Stewart v. Abend, 495 U.S. 207 (Supreme Court, 1990) (nature of factual works vs. fictional works; affects fair use)