Elsevier-69.pdf - Google Drive -- DEFENDANT REED ELSEVIER INC.’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
abernard102@gmail.com 2013-06-20
Summary:
Use the link to access the full text document. "Defendant LexisNexis, a division of Reed Elsevier Inc. ('Lexis'), hereby submits this Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment. The facts underlying this opposition are fully set forth in Lexis’s previously filed Rule 56.1 Statement of Undisputed Facts in Support of Its Motion for Summary Judgment, dated October 5, 2012 (Dkt. No. 57) ('St.'), and Lexis’s Rule 56.1 Counter-Statement ('Ctr. St.') and Declaration of James Hough in Support of Reed Elsevier Inc.’s Opposition to Plaintiff’s Motion for Summary Judgment ('Hough Opp. Decl.') filed concurrently herewith. PRELIMINARY STATEMENT ... The parties agree that the material facts relating to fair use are not in dispute, but disagree on the legal import of those facts. Lexis obtained two of Plaintiff’s court-filed legal briefs (the 'Briefs')—which any member of the public may obtain and copy—and transformed them into part of a sophisticated research tool that serves an entirely different purpose and market from that of the original Briefs. Despite Plaintiff’s rhetoric, Lexis’s actions cannot be equated to those of a copyright pirate. Lexis purchased (not stole, as Plaintiff suggests) the Briefs from PACER after Plaintiff publicly filed them, without seal, in the Western District of Oklahoma. Lexis then enhanced the Briefs and incorporated them into the Briefs, Pleadings and Motions ('BPM') legal research database product. As Lexis explained in its motion for summary judgment, its use of the Briefs is fair, as supported by the four statutory fair use factors as well as additional factors such as the public benefit provided by Lexis’s use and the public’s right to access and copy legal documents. Plaintiff’s arguments against fair use are wrong, and its effort to equate Lexis’s use of the Briefs with copying and selling 'the latest John Grisham novel' available at a public library highlights the flaws in Plaintiff’s argument. (Pl.’s Mot. at 1.) from a public library, the borrower is not permitted to copy and sell the entire novel because that would supersede the author’s purpose for writing the novel in the first place—to sell books. Here, Plaintiff did not create the Briefs to sell or license them; they were created to advocate on behalf of clients in a court, and Lexis transformed the Briefs to use them for an entirely different purpose. Further, in the John Grisham analogy, the market for the sale of Mr. Grisham’s books would clearly be harmed by a borrower 'making innumerable copies' of the book and selling those copies. But there is no existing bookstore or other marketplace where Plaintiff could sell or license the Briefs, which are already available on PACER, and therefore there has been no harm to any market for the Briefs. Simply stated, the difference between copying and selling a best-selling novel that was borrowed from the public library and Lexis’s use of Plaintiff’s court filed legal documents to incorporate into a searchable research database that causes no harm to the value of the original works is the difference between copyright infringement and fair use.Lexis’s use also differs from that of a copyright pirate because Plaintiff impliedly licensed Lexis’s use by filing the Briefs knowing that the public, including Lexis, has the right to access and copy them, while assuming that Lexis made enhanced versions of all court-filed legal documents, including the Briefs, available in its BPM product. this knowledge and assumption is sufficient to establish the existence of an implied license ..."