I'm as guilty of this lazy thought process as the next lawyer. I've always assumed, perhaps incorrectly, that when a brief was filed with a court, it was some sort of public commodity, available for any use. Not so fast. The July 23, 2009 Daily Journal ran a story about Irvine attorney Edmond Connor, who wrote to the California Supreme Court to express concern about the the practice of providing all appellate briefs filed in California to Westlaw and Lexis, free of charge. Paul Lomio, LexisNexis and Weslaw violating copyright? (July 23, 2009) legalresearchplus.com.
The Volokh Conspiracy stepped into the discussion:
The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
Eugene Volokh, Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? (July 23, 2009) volokh.com. Legal Research Plus followed up with a link to the actual letter by Mr. Connor (in which he suggests that a class action could be one way to resolve the issue). The letter is rather persuasive in describing the current system as unfairly favoring two commercial actors at the expense of the copyright holders. I'm going to go out on a limb and say that it sounds like a federal class action waiting to happen if a corrective measure isn't implemented.
Via: @richards1000 (twitter page)