Thomson accused of breaching copyright

For the London Free Press - July 5, 2010 Read this on Canoe

Canadian lawyers are suing for $50 million, claiming the company is making legal documents available for a fee without the authors’ approval

A class action was filed on May 25 against Thomson Reuters Corp. and Thomson Reuters Canada Ltd. on behalf of a class of Canadian lawyers and law firms across Canada to the tune of $50 million.

The lawsuit alleges that Thomson breaches copyright laws by making lawyer-created legal documents available for a fee and subscription without permission from, or compensation to, the authors of the documents.

How do they do this? It is alleged that Thomson copies publicly available court filings. That includes legal documents such as facta, pleadings, affidavits and notices of motion, prepared by lawyers. It then makes them available for download via its "Litigator" service.

The user subscribes to the service and pays a fee, then is permitted to copy and edit the documents. At no time are the authors of these documents informed that their documents are copied, sold, or reproduced.

Of notable offence to the plaintiffs is the fact that the copies available for download are branded with a statement that asserts Thomson's copyright over the documents: "[copy] Thomson Reuters Canada Limited or its Licensors. All rights reserved."

Lawyers are perhaps the original mash-up artists when it comes to legal documents of all kinds. All lawyers copy parts from similar documents other lawyers create and use - whether they are contracts or court documents. It is one way lawyers have always learned and documents have been improved. Lawyers have not for the most part considered copyright issues when it comes to their own documents.

The question is whether the service Thomson provides is different and whether it crosses a copyright line.

The statement of claim issued by the plaintiffs pleads that the lawyers are the owners of copyright in these legal materials and that Thomson has infringed the Copyright Act by its actions.

More specifically, the claim states:

"The defendants took more than 50,000 legal documents created by members of the proposed class, removed them from court files and copied them, scanned them into a downloadable format, posted them in their database, and then made them available to subscribers for a fee."

Counsel for the plaintiffs are seeking to have the lawsuit certified as a class action.

If the case is certified by the court, all persons who fit the class definition will automatically be included in the class unless they choose to opt out.

Among the many claims made, the plaintiffs have asked for $50 million in general damages for the class, disgorgement of profits made by Thomson from the infringement, $1 million in punitive damages, litigation costs, and a permanent injunction from using the documents.

Thomson of course has a different viewpoint, and will defend the action.

The case will be decided on the subtleties of copyright law. But it boils down to this.

Though the sharing of legal documents has always been an accepted and necessary way of practising law, does doing it in a commercial way such as Thomson does cross a legal line?