Comments on: The Contract Drafter as Copyright Violator

By: Claiming Copyright in a Legal Document « 37 Thoughts

Claiming Copyright in a Legal Document « 37 Thoughts — Thu, 28 Jan 2010 22:53:52 +0000

[...] sure what Stephen concludes, but he does link to a nice explanation and discussion of the issues at AdamsDrafting. Ken Adams appears to reach the same conclusion I did, which is that there’s possible [...]

By: Ken Adams

Ken Adams — Mon, 10 Jul 2006 02:06:56 +0000

Michael: I might quibble with a couple of the points you make. For example, you draw a distinction between functionality and prose that you might be hard-pressed to justify.

But more generally, as I say in my post, I’m not suggesting that lawyers should as a general matter stop copying contracts. Instead, I’m saying that if a given law firm devotes resources to producing contracts that are original and creative, it’s clear that those contracts would be entitled to copyright protection. Sure, it would be nice to be able to copy them with impunity, but that’s the case with any work protected by copyright.

And as regards encouraging sharing and learning, that could be used as an argument for vitiating copyright across the board. That one can secure copyright protection suggests that a more compelling policy argument is that one wants to encourage those who devote resources to creating original and creative works.

By: Michael Fleming

Michael Fleming — Fri, 07 Jul 2006 18:01:15 +0000

Need we add yet another group of things that have in the past been deemed to be public resources and turned into property? I won’t argue with Nimmer or the law in general (although, just to take back my own promise, one wonders about the copyrightability of certain contract phrasing that really couldn’t be said in any appreciably different manner — contracts are functional more than they are prose). But, at least on policy reasons, is this where we want to take the practice of law? We learn from our history. Sometimes that’s to the bad (as Ken frequently points out when we carry forward anachronisms like ‘represent and warrant’). But, on the whole, I think this is for the good. If I had needed to worry about copyright when I was beginning my long journey of learning how to draft (which will continue until this ticker stops ticking), I would have been severely undermined. My personal ‘form book’ of today is a conglomeration of things I’ve done, that I copied from others, and that my previous employers may well ‘own’ from a copyright perspective. If I were tasked with analyzing the copyrights in such I would probably go get a new career first.

Even if we can claim these things as property, shouldn’t we be encouraging the profession as a whole by encouraging sharing and learning? That concept works well within the common law (whose jurists are not claiming copyright in their opinions to my knowledge, even those state judges who conceivably could do so) — And it should carry through to much of the rest of the practice as well.

(I’m willing to concede that we shouldn’t be copying each other’s firm marketing Web sites, although you’d think that every firm has copied every other firm’s site from the looks of their things…)

(And, I fully realize that the above almost parrots the arguments of the open-source community in software — So be it.)