Does "publishing" include mimeographed reports, memos, and leaflets that are distributed to group or organization members?
The concept of publication has much less import today than it did under the 1909 Copyright Act, the previous statute. Today, if a work is published, even widely, without a notice of copyright, the copyright is not lost. Under the 1909 Act, however, the author could lose rights through failure to place a copyright notice on a published work.
Because of the harshness of this law, courts developed the concept of limited publication (not relevant for works published since 1978). For works published in 1977 or earlier, however, limited publication was an important concept. If only a few copies were distributed, and/ or those that were distributed had restrictions on use and distribution, then failure to include a copyright notice on these copies did not result in loss of copyright to the author. These restrictions on use typically were printed on the copies themselves. Whether the mimeographed reports, memos, or leaflets were published under the 1909 Act depends on the number of copies actually distributed and whether there were restrictions on further use and distribution.
What is the copyright status of state court briefs?
An attorney believes that briefs are copyrightable and that Lexis and West-law infringe when they include briefs in their databases without permission. The library maintains that state court briefs are public information and not subject to copyright. Is there a difference in U.S. government works and state government documents?
Section 105 of the Copyright Act says that works produced by the federal government are not copyrightable. Because the Act is a federal statute, it is silent as to the status of state documents. Many states claim copyright in their documents or at least in some of them. The Compendium II of Copyright Office Practices, available at copyrightcompendium.com/, says that state statutes and court reports are not copyrightable. The question, of course, is whether briefs filed in a state court are government documents.
If the brief is for the state as a party to the litigation, and the brief is prepared by attorneys who are state employees, the brief is likely to be a government document, so the answer as to whether it is copyrighted or not will depend on whether the state claims copyright in its documents. If, however, the brief is one written by a private attorney for a private party to the litigation, then the brief may well be copyrighted. Some attorneys and law firms do claim copyright in their briefs and are particularly unhappy with services such as Lexis and Westlaw that sell copies of their briefs.
Legal authorities seem to say only that there may be copyright in briefs. Another possibility, of course, is that in filing the brief with a court, that brief becomes public domain as a part of the court record. Public domain is certainly the best argument from an open government-type of argument, however. But consider the following: A songwriter has not published a particular song, but it is introduced into evidence in a court case concerning the ownership of the copyright.
Clearly, introducing the song into evidence in court is not copyright infringement and is excused; however, this does not put the song into the public domain. Analogizing to briefs would mean that they do not become public domain just because they are filed in court. Unfortunately, this is one area in which currently there is no clear answer, but there soon may be. In 2012 two lawyers sued Lexis and West for including their briefs in their databases (see title17.net/2012/02/lawyers-sue-west-and-lexis-for-selling-lawyers-briefs-without-permission/).