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White v. West Publishing Corp.

United States District Court, S.D. New York

July 3, 2014

EDWARD L. WHITE, EDWARD L. WHITE, P.C., and KENNETH ELAN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
WEST PUBLISHING CORPORATION d/b/a " West," and REED ELSEVIER INC., d/b/a " LexisNexis," Defendants

For Edward L. White, on behalf of themselves and all others similarly situated, Edward L. White, P.C., on behalf of themselves and all others similarly situated, Plaintiffs: Gregory A. Blue, Dilworth Paxson LLP (NY), New York, NY; Raymond A. Bragar, Brager, Wexler Eagel & Squires, P.C., New York, NY.

For West Publishing Corporation, doing business as West, Defendant: Benjamin Ely Marks, Robert Bruce Rich, LEAD ATTORNEYS, John Ryan Gerba, Weil, Gotshal & Manges LLP (NYC), New York, NY; Jonathan Bloom, Weil, Gotshal & Manges, LLP, New York, NY.

For Reed Elsevier Inc., doing business as LexisNexis, Defendant: James Edward Hough, LEAD ATTORNEY, Cindy Paige Abramson, Craig Brian Whitney, Morrison & Foerster LLP (NYC), New York, NY; James Francis McCabe, PRO HAC VICE, Morrison & Foerster LLP(San Francisco), San Francisco, CA; Paul Goldstein, PRO HAC VICE, Morrison & Foerster LLP, San Francisco, CA.

Page 397

MEMORANDUM AND ORDER

JED S. RAKOFF, U.S.D.J.

On February 22, 2012, plaintiffs Edward L. White, Edward L. White, P.C., and Kenneth Elan filed a putative class action alleging copyright infringement against defendants West Publishing Corp. (" West" ) and Reed Elsevier, Inc. (" Lexis" ). On June 26, 2012, after the Court had dismissed Elan's claims and those of the proposed subclass of plaintiffs who had not registered any copyrights, White filed an amended, non-class action complaint, asserting claims of copyright infringement based on the inclusion of White's copyrighted briefs in West's " Litigator" and Lexis's " Briefs, Pleading and Motions" databases. On September 28, 2012 and October 5, 2012, defendants and White, respectively, filed cross-motions for summary judgment on White's copyright infringement claims. The Court heard oral argument on these motions on November 20, 2012 and in a " bottom-line" Order dated February 11, 2013, granted defendants' motion for summary judgment and denied plaintiff's motion. This Memorandum and Order explains the reasons for that decision and directs the entry of final judgment.

Plaintiffs sue West and Lexis for copyright infringement based on the inclusion of two of White's copyrighted briefs in the Westlaw " Litigator" and Lexis " Briefs, Pleading and Motions" (BPM) databases. The briefs at issue are " Plaintiffs' Combined Motion for Summary Judgment, Beer and Ramsey, and Brief in Support" (" Summary Judgment Motion" ), filed May 20, 2009, and " Plaintiffs' Motion in Limine" (" Motion in Limine" ), filed March 15, 2010, both of which White filed while serving as class counsel in Beer v. XTO Energy, Inc., No. Civ-07-798-L, in the Western District of Oklahoma. Defendant West Publ'g

Page 398

Copr.'s Statement of Uncontested Material Facts Pursuant to Local Rule 56.1 (" West 56.1" ) ¶ ¶ 16-19.

On April 13, 2010, mid-way through the litigation, the Beer Court removed White as class counsel in Beer and decertified the class. Id. ¶ 22. Two individuals filed a motion to intervene as new named plaintiffs in Beer with new class counsel. Id. ¶ ¶ 23-24. Because White was concerned that the newly proposed class counsel or other lawyers would use his work product, White registered copyrights on the Beer Summary Judgment Motion and Motion in Limine briefs on May 20, 2010, and May 21, 2010, respectively. Id. ¶ 25.

Prior to registering copyrights on the Summary Judgment Motion and Motion in Limine briefs, White filed the motions with the court using the electronic CM/ECF (PACER) service, from which West and Lexis retrieved the documents. West 56.1 ¶ ¶ 26, 27; Def. Reed Elsevier Inc.'s Rule 56.1 Statement of Undisputed Facts in Support of Its Motion for Summary Judgment (" Lexis 56.1" ) ¶ ¶ 10, 23-24. Filing a document on PACER makes that document publicly available online as well as in the court's clerk's office and allows members of the public to retrieve and download a copy of the document from PACER for $0.10 per page, up to $3.00 per document. Lexis 56.1 ¶ ¶ 17, 20, 24-25.

West's Litigator and Lexis's BPM products offer users access to select legal documents that were filed, without seal, in state and federal courts. West 56.1 ¶ ¶ 3-5, 7; Lexis 56.1 ¶ ¶ 2-4. Once West or Lexis selects a particular legal document for inclusion into Litigator or BPM, the document is converted into a text-serchable electronic file and saved in each database's proprietary format. West 56.1 ¶ 9; Lexis 56.1 ¶ 33. The document is further modified as follows: an editor reviews the document to redact sensitive and private information, West 56.1 ¶ 11; Lexis 56.1 ¶ 30; the editor codes and/or extracts from the document key characteristics like jurisdiction and practice area in order to allow users to find and retrieve documents more easily, West 56.1 ¶ 10; Lexis 56.1 ¶ ¶ 32, 36; the editor links the document to decisions and other filings in the same or related cases and creates links to authorities cited in the document, West 56.1 ¶ 10; Lexis 56.1 ¶ ¶ 32, 26; a unique identifier is created for each document for ease of locating and citing the document, West 56.1 ¶ ; Lexis 56.1 ¶ 41; and a link to a PDF of the as-filed version of the document is included in the database version of the document to maintain an archival copy, West 56.1 ¶ 14; Lexis 56.1 ¶ 39. BPM contains over one million legal documents, and Litigator approximately eleven million legal documents, obtained either from PACER or from courts directly. Lexis 56.1 ¶ ¶ 5, 7, 1; West 56.1 ¶ ¶ 5-6.

The Beer Summary Judgment Motion was loaded into Litigator on July 11, 2009, and accessed a total of five times between then and March 6, 2012; the Motion in Limine was loaded into Litigator on May 2, 2010, and accessed a total of seven times between then and March 5, 2012. West 56.1 ¶ ¶ 27-28. Both motions were available as part of BPM as of August 4, 2010; the Summary Judgment motion was never accessed, and the Motion in Limine was accessed by three users. Lexis 56.1 ¶ ¶ 43, 73-74.

Section 107 of the Copyright Act provides a defense to copyright infringement that allows for " fair use" of a copyrighted work without permission based on consideration of four non-exclusive statutory factors: " (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational ...


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