Clients spend a great deal of money in the prosecution and defense of their claims. In doing so, lawyers prepare briefs outlining their client’s legal positions. Who owns the brief? Under copyright law, absent an assignment of the work, the lawyer owns it. (Yes, the client can use it). Yet, for years online legal research services have offered the crafted briefs for “sale” in the sense that you can search an issue and download the briefs in a given case. Fair use?

When it is filed with the court, it is hard to argue that the brief is not a public record. But because it is in the public sphere, does that make it free game? Obviously, I cannot record a television show and sell it. But I can DVR it and watch it later.

Whether the use of the briefs constuitutes a fair use requires an examination of the following non-exclusive factors...