White et al v. West Publishing Corporation et al

Filing 56

MEMORANDUM OF LAW in Support re: 45 MOTION for Summary Judgment.. Document filed by Reed Elsevier Inc.. (Hough, James)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDWARD L. WHITE, P.C.,
Plaintiff,
v.
WEST PUBLISHING CORPORATION
d/b/a “West,” and REED ELSEVIER INC.
d/b/a LexisNexis,

ECF CASE

Civil Action No. 12-CV-1340 (JSR)

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT REED ELSEVIER INC.’S MOTION FOR SUMMARY JUDGMENT

James E. Hough
Craig B. Whitney
Cindy P. Abramson
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, New York 10104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
James F. McCabe (admitted pro hac vice)
Paul Goldstein (admitted pro hac vice)
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
LexisNexis, a div. of REED ELSEVIER INC.

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
LEGAL STANDARD ..................................................................................................................... 8
ARGUMENT .................................................................................................................................. 9
I.

LEXIS’S USE OF THE BRIEFS IS PERMISSABLE UNDER
THE FAIR USE DOCTRINE. ............................................................................................ 9
A.

Lexis’s Use Serves the Purpose of Copyright Law and Fair Use. .......................... 9

B.

Lexis’s Use of the Briefs is Fair. .......................................................................... 10
1.

Lexis’s use of the Briefs does not supersede the Briefs'
original purpose. ....................................................................................... 10
a.

Lexis transformed the Briefs by making enhancements and
incorporating the documents into a searchable database. ............. 11

b.

Lexis’s commercial motivation does not militate against a finding
of fair use. ..................................................................................... 13

2.

The nature of the Briefs weighs in favor of fair use. ................................ 14

3.

Lexis took what was reasonably necessary from the Briefs
in order to integrate the Briefs into the searchable
online database. ......................................................................................... 15

4.

Lexis’s use of the Briefs has no negative effect on any
cognizable market for the Briefs. .............................................................. 17
a.

Lexis’s product is not a substitute for the original Briefs and does
not harm the value of, or the market for, the Briefs. ..................... 17

b.

There is no market for sale or licensing of the Briefs. .................. 18

5.
6.

The public’s right to access and copy court documents also supports a
finding of fair use. ..................................................................................... 21

7.

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Lexis’s BPM product creates a significant public benefit. ....................... 21

Lexis satisfies the standards for fair use under the Copyright Act. .......... 23

TABLE OF CONTENTS
(Cont.)
Page
II.

LEXIS HAD AN IMPLIED LICENSE TO USE PLAINTIFF’S BRIEFS. ..................... 23

CONCLUSION ............................................................................................................................. 25

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TABLE OF AUTHORITIES
CASES

Page(s)

Am. Geophysical Union v. Texaco Inc.,
60 F.3d 913 (2d Cir. 1994).................................................................................................18, 19
Am. Geophysical Union v. Texaco Inc.,
802 F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913 ................................................................19
Arica Inst., Inc. v. Palmer,
970 F.2d 1067 (2d Cir. 1992)...................................................................................................15
Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006)............................................................................................. passim
Blanch v. Koons,
467 F.3d 244 (2d Cir. 2006)............................................................................................. passim
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ......................................................................................................... passim
Carano v. Vina Concha y Toro, S.A.,
288 F. Supp. 2d 397 (S.D.N.Y. 2003)........................................................................................9
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp.,
150 F.3d 132 (2d Cir. 1998).........................................................................................14, 18, 20
EMI Latin v. Bautista,
No. 03 Civ. 0947, 2003 U.S. Dist. LEXIS 2612 (S.D.N.Y. Feb. 24, 2003) ......................23, 24
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) .............................................................................................................9, 15
Field v. Google Inc.,
412 F. Supp. 2d 1106 (D. Nev. 2006) ......................................................................................24
Foltz v. State Farm Mut. Auto. Ins. Co.,
331 F.3d 1122 (9th Cir. 2003) .................................................................................................22
Gambale v. Deutsche Bank AG,
377 F.3d 133 (2d Cir. 2004).....................................................................................................21

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TABLE OF AUTHORITIES
(Cont.)
CASES

Page(s)

Golan v. Holder,
132 S. Ct. 873 (2012) .................................................................................................................9
Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) .................................................................................................................15
Hartford Courant Co. v. Pellegrino,
380 F.3d 83 (2d Cir. 2004).......................................................................................................22
In re Application of Nat’l Broad. Co.,
635 F.2d 945 (2d Cir. 1980).....................................................................................................22
Keane Dealer Servs. v. Harts,
968 F. Supp. 944 (S.D.N.Y. 1997) ......................................................................................9, 24
Kelly v. Ariba Soft Corp.,
336 F.3d 811 (9th Cir. 2003) .............................................................................................12, 13
Lugosch v. Pyramid Co.,
435 F.3d 110 (2d Cir. 2006).....................................................................................................22
Nixon v. Warner Commc’ns,
435 U.S. 589 (1978) .................................................................................................................22
NXIVM Corp. v. Ross Inst.,
364 F.3d 471 (2d Cir. 2004).....................................................................................................14
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007), cert. denied, 132 S. Ct. 1713 (2012) ................................12, 13
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) .....................................................................................................14, 16, 17
Stewart v. Abend,
495 U.S. 207 (1990) .................................................................................................................14
The Swatch Grp. Mgmt. Servs. LTD. v. Bloomberg L.P.,
No. 11 Civ. 1006, 2012 U.S. Dist. LEXIS 70045 (S.D.N.Y. May 17, 2012) .................. passim
Time, Inc. v. Bernard Geis Assocs.,
293 F. Supp. 130 (S.D.N.Y. 1968) ..........................................................................................21

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TABLE OF AUTHORITIES
(Cont.)
CASES

Page(s)

Unclaimed Prop. Recovery Serv. v. Kaplan,
11-cv-1799, 2012 U.S. Dist. LEXIS 135094 (E.D.N.Y. Sept. 19, 2012) ................................20
Vanderhye v. iParadigms,
562 F.3d 630 (4th Cir. 2009) ...................................................................................................11
STATUTES
17 U.S.C. § 107 ..................................................................................................................10, 13, 14
Fed R. Civ. P. 56(a) .........................................................................................................................8
OTHER AUTHORITIES
3 MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT § 10.03[A]
(Matthew Bender, Rev. Ed.) ....................................................................................................23

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Defendant LexisNexis, a division of Reed Elsevier Inc. (“Lexis”), hereby submits this
Memorandum of Law in Support of its Motion for Summary Judgment dismissing all claims
asserted by Plaintiff Edward L. White, P.C. (“White P.C.”). The facts underlying this motion are
fully set forth in Lexis’s Rule 56.1 Statement of Undisputed Facts (“St.”).
PRELIMINARY STATEMENT
Plaintiff White P.C. asserts that Lexis infringed its copyrights by copying two legal
documents (the “Briefs”) that Plaintiff filed in federal district court in Oklahoma. Knowing from
the start that these documents would be publicly available for anyone to view and copy, Plaintiff
nevertheless claims that Lexis’s inclusion of enhanced versions of the Briefs in a database—
which serves a purpose entirely different from that of the original documents—constitutes
copyright infringement. The doctrines of fair use and implied license defeat such a claim and
support entry of summary judgment in Lexis’s favor.
The material facts are undisputed. Lexis acquired a copy of the Briefs through the court’s
Public Access to Court Electronic Records (PACER) system. Lexis then enhanced the Briefs
and integrated them into a searchable database product with more than one million other legal
documents, with links to and from court opinions, statutes and related case materials, among
other documents. These enhancements and integration into a searchable, interconnected
database transformed the Briefs into a research tool that in no way superseded the Briefs’
original purpose.
Plaintiff admits that the Briefs were created to advocate on behalf of its clients, and that
its motivation to create similar advocacy documents is unaffected by Lexis’s use of the Briefs.
Plaintiff did not create the Briefs for the purpose of licensing or selling them and has never
attempted to license or sell them, nor has anyone ever offered to license or buy them. Plaintiff’s
advocacy service—on behalf of its clients—is entirely different from the research database
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service provided by Lexis to its users, a fact that is indisputable even though both services use
the Briefs. Lexis’s use of the Briefs has not harmed any market for, or the value of, the Briefs, a
fact that is supported by Plaintiff’s testimony and unrebutted expert testimony. Lexis’s
integration of the enhanced Briefs to its database in fact provides a public benefit by furthering
the public’s well-established right to access and copy judicial documents. On these facts, any
reasonable fact finder must conclude that Lexis’s use of the Briefs is fair under the Copyright
Act.
Plaintiff also impliedly licensed Lexis to use the Briefs by filing them with the
understanding that any member of the public, including Lexis, would be permitted to copy them.
Plaintiff did not attempt to limit or restrict Lexis’s copying and use of the Briefs in any way.
Even after learning that Lexis included the Briefs in its database offering, Plaintiff did nothing to
prevent or object to such use. As a result, any reasonable fact finder must conclude that Plaintiff
had impliedly licensed Lexis’s use of the Briefs.
Plaintiff has no viable claim against Lexis for copyright infringement because the
undisputed facts compel the conclusions that Lexis’s use is fair and impliedly licensed. Lexis is
entitled to summary judgment as a matter of law. 1
STATEMENT OF FACTS
The following material facts are uncontroverted:
Public Access to Court-Filed Documents
In 1998, the federal judiciary created the Case Management/Electronic Case Files
(“CM/ECF”) system, which “allows attorneys to file documents directly with [a federal] court

1

Lexis also hereby incorporates by reference the arguments set forth in the Memorandum of
Law in Support of Defendant West Publishing Corporation’s Motion for Summary Judgment,
dated October 5, 2012, to the extent applicable to Lexis.
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over the Internet and allows courts to file, store, and manage their case files in an easy-to-access,
transparent way.” (St. 12, 13.) “CM/ECF provides courts the ability to make their documents
available to the public over the Internet.” (St. 14.)
Only those who register for a CM/ECF login and password, and agree to have read the
most recent version of the Court’s ECF Policy Manual, are permitted to file court documents
electronically. (St. 15, 16.) Once a document has been filed through CM/ECF, that document is
publicly accessible via the United States Courts Public Access to Electronic Records (PACER)
system. (St. 17.) PACER is an “electronic public access service that allows users to obtain case
and docket information from federal appellate, district and bankruptcy courts.” (St. 11.)
When a document is filed via CM/ECF, an email containing a link to one free copy of the
document and a note advising recipients to make a copy of the document to avoid payment for
future copies is sent to CM/ECF users associated with the case file. (St. 18, 19.) The general
public can also view or download copies of the document via PACER at a rate of $.10 per page
(formerly $.08 per page), with the maximum cost per document of $3.00 (formerly $2.40).
(St. 20.) In lieu of using PACER, individuals can view legal filings at a federal courthouse at no
cost and make copies for $.50 per document. (St. 21.)
The Lexis BPM Product
Lexis provides numerous products and services designed for legal practitioners, law
students and other business customers, including electronic databases that contain case law, news
and business information, public records and other content. (St. 1.) Since approximately 2005,
Lexis has made available electronic databases that contain selected attorney-authored legal

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documents that were filed, without seal, in state and federal courts. 2 (St. 2, 3.) Lexis makes
these materials available through its Briefs, Pleadings and Motions (“BPM”) product offering.
(St. 2.) The BPM product is intended to provide attorneys and other Lexis users with research
materials in targeted practice areas. (St. 4.) A key component of the BPM product is therefore
the selectivity and relevance of the legal documents in the database, as well as the ability to
search all legal documents in the BPM database. (St. 4, 35.) To this end, the BPM database
consists of over one million legal documents that have been enhanced to make the database
searchable by text and category. (St. 5, 33.)
Lexis acquires legal documents from various sources. For legal documents filed in
federal district courts—the type of legal documents at issue here—Lexis obtains those
documents primarily via the PACER system. (St. 10.) Lexis pays the same rate as other private
users to obtain documents from PACER. (St. 26.) Lexis also has relationships with certain
courts that send legal documents directly to Lexis. (St. 7.)
Lexis’s BPM product provides more than just the text of the documents. Before any legal
document is added to the BPM database, Lexis determines whether a particular document
pertains to a priority topic area or is from a priority jurisdiction, and is therefore of value to the
BPM product. (St. 27.) After Lexis decides that a particular legal document should be added to
the BPM product, the document, if it was filed in federal district court, is typically downloaded
from PACER. (St. 10, 28.) The Lexis editor then determines if the document should be split
into multiple documents (for instance, if a brief includes an attachment) or if previously split
documents should be combined. (St. 29.) Lexis also reviews the document for sensitive
information, such as social security numbers, and makes any necessary redactions. (St. 30.)
2

The term “legal documents” is used throughout this brief to refer to attorney-authored legal
documents that have been filed with a court.
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Lexis then enhances the document through a detailed process that includes capturing
certain “metadata” about the document, such as the case name, the court, the type of document,
any expert witnesses involved and the court opinion with which the legal document is associated.
(St. 31.) Ultimately, the metadata is used to enhance the searchability of the document. (St. 32.)
The legal document is also converted into Lexis’s proprietary data file format to become text and
segment searchable. (St. 33.) Following this conversion, Lexis runs a cite recognition program
to identify statutes, codes, regulations and court opinions cited in the legal document and adds
hyperlinks to those related materials. (St. 36.) Lexis will also identify practice areas relevant to
the document. (St. 37.) Lexis then links the legal document to and from related case materials,
such as expert witness reports and jury instructions, and includes a link to the legal document
from the case law opinion(s) to which the document is related. (St. 38.) A link to the image of
the legal document as it is available in court files, such as on PACER, is also added to the
converted document. (St. 39.) Finally, Lexis adds a unique Lexis citation to enable users to
identify and cite to each document. (St. 41.) The document is then incorporated into the BPM
product along with over one million other legal documents and organized into relevant menus
and files within the BPM product. (St. 5, 42.)
The Briefs at Issue
Plaintiff White P.C. is a law firm located in Oklahoma City, Oklahoma, founded by
Edward White in 1997. (St. 47.) White estimated that White P.C. has likely filed thousands of
legal documents with state and federal courts. (St. 48.) In approximately 2003, White began
working with Martin High, who is currently of counsel to White P.C. (St. 49, 50.)

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White P.C. claims that Lexis has infringed its copyrights in the Briefs. 3 Plaintiff alleges
that it “is the owner of the [Briefs], which [Lexis has] copied, digitized, transformed, and
packaged into databases that are sold for profit.” (Am. Compl. ¶ 23.) The Briefs were filed in a
case captioned Beer et al. v. XTO Energy, Inc., Case No CIV-07-798-L in the Western District of
Oklahoma (the “Beer Litigation”). (St. 22, 23.) Plaintiff filed the Summary Judgment Motion
via CM/ECF on May 20, 2009 and the Motion In Limine via CM/ECF on March 15, 2010. (St.
22, 23.) Upon filing, the Briefs were publicly available to be copied via both PACER and the
Western District of Oklahoma Court Clerk’s Office. (St. 24, 25.) The Briefs contain no stated
limitation on copying or any other future use. (St. 56, 57.)
White and High are both listed on the cover pages and signature blocks of the Briefs, and
are the only attorneys listed. (St. 51.) Nevertheless, White claims that High is not an author of
the Briefs, and that he merely made “editorial comments.” (St. 52, 53.) High, on the other hand,
testified that he is a co-author and drafted a significant portion of the substantive content of the
Briefs. 4 (St. 54, 55.) It is undisputed, however, that the Briefs were created for the sole purpose
of advocating on behalf of White P.C.’s clients in the Beer Litigation. (St. 67.) White and High
did not create the Briefs in order to license or sell them to other lawyers, and have never
attempted to license or sell them. (St. 68, 71.) Nor has anyone ever offered to license or
purchase the Briefs or any of Plaintiff’s legal documents. (St. 72.)

3

The Briefs consist of two legal documents: Plaintiffs’ Combined Motion For Summary
Judgment For Plaintiffs, Beer And Ramsey, And Brief In Support (“the Summary Judgment
Motion”); and Plaintiffs’ Motion In Limine (“the Motion In Limine”). (See Am. Compl. ¶ 4.)
4

Whether High is a co-author of the Briefs is immaterial for the purposes of Lexis’s motion for
summary judgment. The fact that there is a dispute regarding authorship between the only two
individuals named on the documents, however, is relevant to the fair use analysis, as discussed
below at page 19.
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Plaintiff registered copyrights in the Briefs only after the district court in the Beer
Litigation decertified the class and removed White P.C. as class counsel because the court had
“lost its confidence in [White P.C.’s] ability to represent the class.” (St. 58, 60, 61.) On April 26
and 30, 2010, another firm sought to intervene as counsel for new proposed class representatives
and sought to have the district court reconsider class decertification. (St. 59.) This caused
Plaintiff to register the Briefs with the Copyright Office, on May 20 and May 21, 2010. (St. 60,
61.) As White admitted, he registered the Briefs to prevent copying of his work product by
successor class counsel in the Beer Litigation. (St. 62.)
Lexis’s Use of the Briefs
Lexis obtained copies of the Briefs via PACER. (St. 10, 28.) Lexis made enhancements
to the Briefs as described above prior to including them in the BPM product. (St. 29-42.) On
August 4, 2010, Lexis made these enhanced versions of the Briefs available to Lexis users as part
of its BPM database of over one million legal documents. (St. 5, 43.)
Despite its availability on the BPM product for well over a year, the Summary Judgment
Motion was never accessed by a Lexis user prior to the filing of the original complaint in this
action. (St. 43, 73.) The Motion In Limine was accessed by only three users, one of whom was
a law student at White’s alma mater who accessed the document seven times in less than fifteen
minutes. (St. 74, 75.) Notwithstanding White’s awareness that the Briefs were available on
Lexis, Plaintiff never requested that the Briefs be removed from the Lexis databases prior to
filing this lawsuit. (St. 77, 79.) After service of the complaint in this action, Lexis removed the
Briefs from the BPM product. (St. 80.)

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Market for the Briefs
David Blackburn, an applied microeconomist, has assessed various economic factors
relevant to Lexis’s use of the Briefs and any effect of that use on the actual or potential market
for the Briefs. (St. 84.) Blackburn’s expert conclusions are uncontroverted. According to
Blackburn, the BPM product offered by Lexis represents a distinct product that does not compete
with or supersede the Briefs. (St. 86.) The BPM product has no impact on the market for the
Briefs because the BPM product is not a substitute for the Briefs and, as White admits, Lexis’s
use of the Briefs does not affect the creation or quality of Plaintiff’s legal documents. (St. 85,
86, 92-94.)
With its database of enhanced legal documents, Lexis created a new product for a
different market that does not compete with or supersede the product or the market for which
Plaintiff created the Briefs. (St. 86, 89.) The BPM product has no effect on Plaintiff’s Briefs—
no secondary market exists in which Plaintiff licenses the Briefs to other attorneys. (St. 85, 90.)
Plaintiff is also unable to license the Briefs to Lexis: there is no value to Lexis for any individual
legal document and transaction costs would be prohibitively high if Lexis were required to
license individual legal documents from all attorneys. (St. 87, 88, 91.)
Blackburn concludes that Lexis’s compilation and enhancement of publicly available
legal documents has no economic impact on Plaintiff or the market for Plaintiff’s Briefs. (St. 85,
92.)
LEGAL STANDARD
Summary judgment should be granted if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). Where, as
here, the facts underlying the affirmative defenses of fair use and implied license are not in
dispute, summary judgment is appropriate. See Blanch v. Koons, 467 F.3d 244, 250 (2d Cir.
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2006) (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)) (fair
use); Carano v. Vina Concha y Toro, S.A., 288 F. Supp. 2d 397, 403 (S.D.N.Y. 2003) (implied
license); Keane Dealer Servs. v. Harts, 968 F. Supp. 944, 947 (S.D.N.Y. 1997) (implied license).
ARGUMENT
I.

LEXIS’S USE OF THE BRIEFS IS PERMISSABLE UNDER THE FAIR USE
DOCTRINE.
A.

Lexis’s Use Serves the Purpose of Copyright Law and Fair Use.

“Fair use” exists as a necessary tool to further the goals of copyright law. See Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (“From the infancy of copyright protection,
some opportunity for fair use of copyrighted materials has been thought necessary to fulfill
copyright’s very purpose, ‘to promote the Progress of Science and useful Arts.’” (quoting U.S.
Const., Art. I, § 8, cl. 8)). Recently, the Supreme Court reinforced that copyright law’s
constitutional purpose to “promote the Progress of Science . . . refers broadly to the creation and
spread of knowledge and learning.” Golan v. Holder, 132 S. Ct. 873, 888 (2012) (internal
quotation marks omitted). Copyright protection serves to encourage the creation of works,
sometimes by borrowing or building upon previous works, for the benefit of the public. Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991) (“copyright assures authors
the right to their original expression, but encourages others to build freely upon the ideas and
information conveyed by a work”). By offering a vast, searchable library of enhanced versions
of publicly filed legal documents, Lexis has created a public benefit that disseminates
information, encourages the development of individual knowledge and legal skills, and assists in
the creation of new works.

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B.

Lexis’s Use of the Briefs is Fair.

Lexis’s use of the Briefs constitutes fair use. A use is fair when the purposes of the
Copyright Act would be advanced more by allowing the use than by prohibiting it. Blanch, 467
F.3d at 251. The non-exclusive statutory factors to be considered in determining fair use are:
(1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount
and substantiality of the portion used; and (4) the effect of the use upon the potential market for
or value of the copyrighted work. 17 U.S.C. § 107. No one factor is dispositive; instead, “[a]ll
are to be explored, and the results weighed together, in light of the purpose of copyright.”
Campbell, 510 U.S. at 578.
Each statutory fair use factor weighs in Lexis’s favor, and additional factors, such as the
common law right to access and copy court records, also favor a finding of fair use.
1.

Lexis’s use of the Briefs does not supersede the Briefs’ original
purpose.

The first factor of the fair use analysis looks at “the purpose and character of the use.”
17 U.S.C. § 107(1). The “central purpose of this investigation is to see . . . whether the new
work merely ‘supersedes[s] the objects’ of the original creation or . . . instead adds something
new, with a further purpose or different character . . . . [I]t asks, in other words, whether and to
what extent the new work is ‘transformative.’” Campbell, 510 U.S. at 579. “Most important to
the court’s analysis of the first factor is the ‘transformative’ nature of the work.” Bill Graham
Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006). The more transformative
the work, the less important other elements—such as the commercial nature of the work—are to
the analysis under the first factor. Campbell, 510 U.S. at 579.

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a.

Lexis transformed the Briefs by making enhancements and
incorporating the documents into a searchable database.

Lexis’s use of the Briefs by enhancing them and including them in a large searchable
database is transformative. Lexis’s use of the Briefs is not the same as the original use and thus
does not “‘supersede the objects’ of the original.” Campbell, 510 U.S. at 579 (internal citations
omitted). Attorneys create and file legal documents with one specific goal: to advocate on behalf
of their clients. Legal documents have been created for that purpose at least as long as the
federal courts have existed, and will continue to be created for that purpose. White admitted that
the Briefs were created to advocate for his clients, and for no other purpose. (St. 67.) Lexis’s
use does not in any way impede or supersede that purpose. Lexis has instead created a fully
searchable database comprised of select legal documents in order to offer an interactive research
tool that provides legal information to users to assist, for example, in the creation of new legal
documents. Such a use—distinct from that for which the Briefs were created—is transformative.
See Blanch, 467 F.3d at 252 (“The sharply different objectives that Koons had in using, and
Blanch had in creating, [Blanch’s work] confirms the transformative nature of the use.”).
Were Lexis’s BPM product merely an online repository of publicly filed court
documents, it would be sufficiently transformative of Plaintiff’s Briefs to constitute fair use.
“The use of a copyrighted work need not alter or augment the work to be transformative in
nature. Rather, it can be transformative in function or purpose without altering or actually
adding to the original work.” Vanderhye v. iParadigms, 562 F.3d 630, 639 (4th Cir. 2009)
(database of unaltered student papers used to check for plagiarism held transformative); see also
Bill Graham Archives, 448 F.3d at 611 (“[defendant’s] use of the disputed images is
transformative both when accompanied by referencing commentary and when standing alone”).

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But the BPM product is more than a mere online repository of legal documents: it is a
research tool that gathers individual legal documents and weaves them together with other
documents, creating an interconnected database of litigation materials that are easily searchable
by topic as well as other user-generated search parameters. 5 (St. 27-42.) In creating this online
database, Lexis selectively evaluates and chooses certain legal documents that are predetermined to have editorial value, often based on their relationship to a particular jurisdiction or
practice area. (St. 27.) As outlined in the Statement of Facts, Lexis enhances the legal
documents by, among other things, making them text and segment searchable, capturing and
inputting metadata, adding links to and from case opinions, jury instructions, expert witness
filings, deposition transcripts, the original image version of the documents and other related case
materials, and creating and adding a unique Lexis citation. (St. 28-42.) Lexis’s BPM product is
thus plainly “something new, with a further purpose [and] different character” than the Briefs,
and is therefore transformative. Campbell, 510 U.S. at 579.
Lexis’s transformation of the Briefs in its searchable BPM database goes beyond similar
uses found to be transformative in Kelly v. Ariba Soft Corporation, 336 F.3d 811 (9th Cir. 2003)
and Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), cert. denied, 132 S. Ct.
1713 (2012). In Kelly, the court held that the use of thumbnail images of works to facilitate
searches is transformative because it improves access to information, rather than satisfying a
demand for artistic expression. 336 F.3d at 819. Lexis’s use of the Briefs similarly improved
access to information and assisted users with legal research, and did not fulfill a demand for
obtaining a particular legal outcome in a particular case—thus serving “an entirely different

5

White testified that his primary objection to Lexis’s use of the Briefs is that its transformation
of the Briefs makes it easier for other lawyers to locate the publicly filed documents. (St. 83.)
Ironically, this very transformative quality compels a finding of fair use.
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function” than the original Briefs. Id. In Perfect 10, the court held that using thumbnail images
in a search engine “transforms the image into a pointer directing a user to a source of
information.” 508 F.3d at 1165. Lexis’s BPM database likewise uses the Briefs to point users
toward new sources of legal information and therefore puts the Briefs “in a different context such
that [they are] transformed into a new creation.” Id. Lexis’s use of the Briefs, however, presents
a more compelling case than in Kelly and Perfect 10 because, unlike the thumbnail images at
issue in those cases, Lexis significantly enhanced the Briefs themselves in furtherance of its
transformative use.
Accordingly, Lexis’s transformative use qualifies as fair use.
b.

Lexis’s commercial motivation does not militate against a finding
of fair use.

Lexis’s commercial motivation is of limited significance in the first factor analysis.
“[T]he more transformative the new work, the less will be the significance of other factors, like
commercialism, that may weigh against a finding of fair use.” Campbell, 510 U.S. at 579. As
the Supreme Court observed, if the commercial nature of a work carried a presumptive force
against a finding of fair use, then “the presumption would swallow nearly all of the illustrative
uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism,
teaching, scholarship, and research, since these activities ‘are generally conducted for profit in
this country.’” Id. at 584 (citation omitted). Further, “the presence or absence of a profit-making
motive is not dispositive as to this factor or the overall fair use analysis.” The Swatch Grp.
Mgmt. Servs. LTD. v. Bloomberg L.P., No. 11 Civ. 1006, 2012 U.S. Dist. LEXIS 70045, at *8
(S.D.N.Y. May 17, 2012) (citing Campbell, 510 U.S. at 584).
The Second Circuit has frequently found fair use in cases where the defendant benefited
commercially by selling the plaintiff’s works. See, e.g. Blanch, 467 F.3d at 253 (fair use despite

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“substantial profit from the sale” of the allegedly infringing work); Bill Graham Archives, 448
F.3d at 612 (defendant’s publication of book containing copyrighted images was “a commercial
venture” but nonetheless fair); Swatch, 2012 U.S. Dist. LEXIS 70045, at *8, *16 (finding fair use
despite defendant’s status as a for-profit corporation whose subscribers pay for access to its
online business newscasting service); see also Castle Rock Entm’t, Inc. v. Carol Publ’g Grp.,
150 F.3d 132, 141 (2d Cir. 1998) (the Second Circuit does “not give much weight to the fact that
the secondary use was for commercial gain”); NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477-78
(2d Cir. 2004) (same).
Notably, the BPM product is often used for educational and non-commercial purposes by
students, who are given access to the service at no cost. (St. 44.) A 2007 study, in fact,
concluded that the vast majority of legal documents were accessed by law students. (St. 45.)
Not surprisingly, all but two accesses to the Briefs prior to the filing of the complaint were made
by a law student. (St. 73, 74.)
Because Lexis’s use is highly transformative and does not supersede the original Briefs,
despite its commercial nature, the first factor strongly weighs in favor of Lexis’s fair use defense.
2.

The nature of the Briefs weighs in favor of fair use.

The second fair use factor considers “the nature of the copyrighted work” and posits that
“some works are closer to the core of intended copyright protection than others.” 17 U.S.C.
§ 107(2); Campbell, 510 U.S. at 586. Here, two aspects relevant to the nature of the Briefs

support the conclusion that Lexis’s use is fair.
First, the Briefs are factual, not fictional. See Stewart v. Abend, 495 U.S. 207, 237
(1990) (“fair use is more likely to be found in factual works than in fictional works”). Copyright
law does not generally create incentives for the development of factual works, as those works do
not require protection of any creative expression. See Sony Corp. of Am. v. Universal City
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Studios, Inc., 464 U.S. 417, 450 (1984) (a main purpose of copyright protection is to “create
incentives for creative effort”). The Briefs at issue are replete with case law citations, personal
facts, and other factual information including lengthy verbatim quotations from deposition
transcripts that, at best, create a “‘thin’ copyright.” See Swatch, 2012 U.S. Dist. LEXIS 70045,
at *11 (quoting Feist Publ’ns, Inc., 499 U.S. at 349).
Attorneys routinely create factually based legal documents with the goal of facilitating
client needs and securing favorable judicial rulings, and there is no doubt that such works will
continue to be created regardless of the protections of copyright law. White readily admitted that
the Briefs were not created with the intention of seeking a future license and would have been
created regardless of Lexis’s use. (St. 68, 69.) White also conceded that many elements of the
Briefs are not copyrightable. (St. 76.)
Second, the Briefs are otherwise publicly available. Plaintiff intentionally and knowingly
made the Briefs available to the general public by filing them with the court. (St. 63, 64.) As
court-filed documents, public availability is inherent in their nature. This is not a case where the
author is seeking to protect the right to control how and when to disclose a work to the public.
See, e.g., Harper & Row, Publishers, Inc., 471 U.S. at 551 (finding no fair use in part because
infringement usurped “the author’s right to decide when and whether it will be made public”).
As a result, the second fair use factor weighs in Lexis’s favor. See Arica Inst., Inc. v.
Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992) (finding fair use where plaintiff’s work was
“available to the general public”).
3.

Lexis took what was reasonably necessary from the Briefs in order to
integrate the Briefs into the searchable online database.

The third fair use factor requires an inquiry as to whether the amount copied “[is]
reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586. “[T]he extent

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of permissible copying varies with the purpose and character of the use.” Id. at 586-87. The
Supreme Court and the Second Circuit have both held that copying an entire work may be
deemed fair use in cases where full copying is necessary to fulfill the purpose of the fair use. See
Sony, 464 U.S. at 449-50; Bill Graham Archives, 448 F.3d at 613 (“copying the entirety of a
work is sometimes necessary to make a fair use of the image”). Further, “insomuch as a public
interest is served by Defendant’s dissemination of the information contained in the Copyrighted
Work, that interest is better served by the dissemination of that information in its entirety.”
Swatch, 2012 U.S. Dist. LEXIS 70045, at *13-14 (emphasis added) (finding fair use where
defendant used the entire copyrighted work—earnings reports—to serve “an important public
interest in disseminating business-related information promptly and fully”).
Here, it was necessary for Lexis to copy the entirety of the Briefs in order to create a new
use—the BPM database. 6 The BPM product offers users access to complete and accurate legal
documents, which enables users to compare certain forms and arguments with others, as well as
to evaluate the effectiveness of those forms and arguments. It was also necessary for Lexis to
copy the entirety of the Briefs for the database to be comprehensively text searchable—an
integral component of the BPM product. (St. 34, 35.) Lexis included a link to the PACER
version of the Briefs as well for convenience, and for verification and archival purposes. (St.
39.) A user could only access this link by first accessing the enhanced version of the Briefs
through the database. (St. 40.)
Because Lexis copied what was reasonably necessary for its transformative use, the third
factor weighs in Lexis’s favor.

6

PACER also does not allow a user to download a partial copy of a document.

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4.

Lexis’s use of the Briefs has no negative effect on any cognizable
market for the Briefs.

The fourth fair use factor inquires whether the defendant’s use negatively affects a
potential market for the work or the value of the work. Campbell, 510 U.S. at 590. The analysis
“requires a balancing of ‘the benefit the public will derive if the use is permitted and the personal
gain the copyright owner will receive if the use is denied.’” Bill Graham Archives, 448 F.3d at
613 (quoting MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981)). Here, the public receives a
significant benefit from Lexis’s use of legal documents and the Plaintiff will gain nothing if the
use is denied. Lexis’s use does not harm the value of Plaintiff’s Briefs or inhibit any incentive to
create future legal documents. (St. 92-94.) “[A] use that has no demonstrable effect upon the
potential market for, or the value of, the copyrighted work need not be prohibited in order to
protect the author’s incentive to create.” Sony, 464 U.S. at 450.
a.

Lexis’s product is not a substitute for the original Briefs and does
not harm the value of, or the market for, the Briefs.

The “fourth factor disfavors a finding of fair use only when the market is impaired
because the . . . material serves the consumer as a substitute, or, . . . supersedes the use of the
original.” Bill Graham Archives, 448 F.3d at 614. Here, the original market for the Briefs is one
in which attorneys create legal documents to provide legal advocacy for their clients. Lexis’s use
of the Briefs is in no way a substitute for the use of the Briefs in this market. (St. 85, 86.)
Clients hire attorneys to represent them; they do not hire Lexis. Attorneys, not Lexis, file legal
documents in court. Lexis’s inclusion of the Briefs in the BPM product does not supersede the
Briefs’ use in the original market or harm the original value of the Briefs. (St. 85, 86, 92.)
The BPM product is not any one specific work, but is instead comprised of over one
million legal documents. (St. 5, 88.) The enhancements made to the Briefs to render them
suitable for inclusion in the BPM product provide value that does not exist in the original Briefs
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and serve a different purpose: research. By White’s own admission, the motivation in creating
the Briefs was wholly different from Lexis’s purpose. White created the Briefs to advocate on
behalf of Plaintiff’s clients. (St. 67.) White did not create the Briefs in order to license them.
(St. 68.) In fact, White admits that the possibility of copying or distributing the Briefs did not
and would not affect the creation or quality of the Briefs. (St. 69, 70.) Plaintiff’s professional
reputation or ability to represent clients has not been compromised, and Plaintiff did not lose any
clients due to the availability of the Briefs on Lexis. (St. 81, 82.)
Finally, there is no evidence in the record that anyone would stop writing legal briefs due
to the possibility that Lexis might include them in the BPM product without compensating the
authors. The record supports only one conclusion: Lexis’s use of the Briefs causes no harm to
the value of the Briefs. See, e.g., Swatch, 2012 U.S. Dist. LEXIS 70045, at *15 (finding no
market harm where defendant’s use “was not at odds with [plaintiff] maximizing [its] value.”).
b.

There is no market for sale or licensing of the Briefs.

A “potential market” is comprised of markets in which the plaintiff could license his
works or license others to develop his works. Castle Rock Entm’t, 150 F.3d at 145 (citing
Campbell, 510 U.S. at 590). There are no such potential markets here, because there are no
“traditional, reasonable, or likely to be developed markets” for the sale or licensing of legal
documents by individual attorneys. Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d
Cir. 1994). Similar to the Second Circuit’s holding in Blanch, “nothing in the record here
suggests that there was a derivative market for [Plaintiff] to tap into that is in any way related to
[Defendant’s] use of [Plaintiff’s] work, even if [Plaintiff] wanted to.” 467 F.3d at 258 n.9.
Plaintiff does not point to any market in which it can sell or license the Briefs because no
such market exists. White has been a practicing attorney for seventeen years and White P.C. has
likely prepared thousands of court filings. (St. 46, 48.) Plaintiff, however, has never attempted
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to sell or license the Briefs or any other legal document. (St. 71.) Nor has anyone ever asked
Plaintiff to license the Briefs or any legal documents created by Plaintiff. (St. 72.) Further,
Plaintiff is not aware of any person ever licensing a legal document for any purpose. (St. 95-97.)
The absence of any potential for Plaintiff to exploit a secondary market for its Briefs weighs
heavily on the side of fair use. See Am. Geophysical Union, 60 F.3d at 930 (“the fourth factor
will favor the secondary user when the only possible adverse effect occasioned by the secondary
use would be to a potential market or value that the copyright holder has not typically sought to,
or reasonably been able to, obtain or capture”) (citing Twin Peaks Prods. v. Publ’ns Int’l, Ltd.,
996 F.2d 1366, 1377 (2d Cir. 1993)).
In addition, the transaction costs in any hypothetical market for attorneys to sell or
license works would be prohibitively high. In American Geophysical Union v. Texaco Inc., 802
F. Supp. 1 (S.D.N.Y. 1992), aff’d, 60 F.3d 913, the court found that a potential market existed
for individual journal articles because there was a pre-established organization through which an
author could set a price for and license his works. Id. at 24-25. The court recognized that,
without that mechanism in place, “[a]n honest user, who would be happy to pay a reasonable
royalty, faces the problem of the enormous administrative difficulty and expense of making an
agreement with the copyright owner for a license to make a single copy. . . . Because of the
outlandishly wasteful delay, expense, and inconvenience involved in negotiating such a
transaction, virtually no user has been willing to do it.” Id. at 23-24.
Unlike in American Geophysical, there is no existing mechanism by which attorneys
could sell or license legal documents. Instead, were Lexis to license legal documents, it would
have to locate and negotiate with numerous possible owners of each work. This would be
difficult, if not impossible, given that many legal documents list multiple attorneys and give no

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clear indication as to authorship, much less as to copyright ownership. The Briefs at issue here
provide a good illustration of this problem. Both White and High are listed on the Briefs, and
they disagree as to who is a co-author of the Briefs. (St. 51, 52, 55.) Any licensing effort would
also have to consider the possibility that clients might claim ownership of legal documents they
paid attorneys to create or created themselves. See, e.g., Unclaimed Prop. Recovery Serv. v.
Kaplan, 11-cv-1799, 2012 U.S. Dist. LEXIS 135094, at *3 (E.D.N.Y. Sept. 19, 2012) (client
claiming copyright ownership over complaint filed by his attorney).
The expense required to overcome these numerous hurdles for the more than one million
documents currently in the BPM database would be prohibitive, and could not be justified by any
potential benefit to Lexis. This is particularly true because no individual work has value to
Lexis’s users. (St. 87.) Rather, it is the collection of a large number of legal documents that are
searchable and interconnected that gives the BPM product value to Lexis and its users. (St. 88.)
Lexis already spends considerable time and expense selectively collecting and enhancing the
documents. Even if a determination of copyright ownership were possible for all legal
documents, any additional significant transaction costs would likely cause the BPM product to be
economically unfeasible. (St. 91.)
Moreover, as discussed above, Lexis’s use of the Briefs is transformative and, under the
fair use analysis, Plaintiff does not suffer market harm “due to the loss of license fees” in a
“transformative market.” Bill Graham Archives, 448 F.3d at 615; see also Castle Rock Entm’t,
150 F.3d at 146 n.11 (“copyright owners may not preempt exploitation of transformative
markets”).

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Based on these considerations, any reasonable fact finder would be compelled to
conclude that Lexis’s use of the Briefs has no demonstrable effect on the potential market for, or
the value of, the Briefs. The fourth factor therefore weighs in Lexis’s favor.
5.

Lexis’s BPM product creates a significant public benefit.

“[C]ourts are more willing to find a secondary use fair when it produces a value that
benefits the broader public interest.” Blanch, 467 F.3d at 253 (citing Am. Geophysical Union, 60
F.3d at 922). Lexis’s BPM product provides a public benefit by allowing attorneys and students
the opportunity to search among selected content for relevant material. Further, the
enhancements made to legal documents allow a user to access related content and verify citations
in a time-efficient manner. By offering a vast library of easily searchable legal documents, Lexis
provides the opportunity to learn about new areas of law, analyze successful and unsuccessful
legal arguments, and research specific jurisdictional formats and related issues. Lexis’s service
also allows practitioners to make strategic decisions in a more timely and efficient manner, and
allows students to research legal issues without cost. The public benefits provided by Lexis thus
outweigh any hypothetical harm to the Plaintiff and favors a finding of fair use. See, e.g., Time,
Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 146 (S.D.N.Y. 1968) (fair use where “[t]here is a
public interest in having the fullest information available” and where “[t]here seems little, if any,
injury to plaintiff, the copyright owner”).
6.

The public’s right to access and copy court documents also supports a
finding of fair use.

A finding that Lexis’s use of the Briefs is fair is also supported by the well-established
right of public access to judicial records. “The public has a common law presumptive right of
access to judicial documents.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir.
2004). The underlying purpose behind the right of access is to promote openness while also

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“provid[ing] the public with a more complete understanding of the judicial system and a better
perception of its fairness.” Id. (internal citations omitted). The Briefs at issue here are judicial
records subject to this presumption of access. See Lugosch v. Pyramid Co., 435 F.3d 110, 119
(2d Cir. 2006) (judicial records are those “relevant to the performance of the judicial function
and useful in the judicial process”); see also Gambale, 377 F.3d at 140 (“In part because they
relate to a court’s adjudication process, ‘documents used by parties moving for, or opposing,
summary judgment should not remain under seal absent the most compelling reasons.’”).
Lexis’s use of the Briefs is consistent with the underlying purpose of the right of access—
creating a broader audience for legal documents.
The common law right to inspect and copy judicial records, a right encompassed by the
right of public access, also supports a finding of fair use here. 7 See Nixon v. Warner Commc’ns,
435 U.S. 589, 597 (1978); In re Application of Nat’l Broad. Co., 635 F.2d 945, 951 (2d Cir.
1980). This right extends “to pretrial documents filed in civil cases, including materials
submitted in connection with motions for summary judgment.” Foltz v. State Farm Mut. Auto.
Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003); see also Hartford Courant Co., 380 F.3d at 94
(protecting the public right to access, inspect and copy docket sheets). Plaintiff admits that
Lexis’s copying promotes wide public access of legal documents. (St. 83.) Lexis also takes care
to remove any confidential or sensitive information. (St. 30.) Because Plaintiff has no
compelling reason that would overcome the strong presumption favoring public access, Lexis
has a clear right to inspect and copy publicly accessible court-filed documents, which in turn
supports a finding of fair use.
7

The right to copy and inspect is similarly protected by the First Amendment. See Hartford
Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004) (explaining that the media’s and
public’s First Amendment right to inspect documents is derived from the public nature of
tribunals).

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7.

Lexis satisfies the standards for fair use under the Copyright Act.

An analysis of the fair use factors makes clear that Lexis’s use of the Briefs was fair.
Lexis acquired the Briefs—publicly filed, factually based legal documents—and transformed
them into part of a searchable database used as a research tool by law students and legal
practitioners. Lexis copied the entirety of the Briefs because doing so was necessary to maintain
accuracy and ensure the database was fully searchable. Lexis’s use created a distinct market that
did not supersede the object of the Briefs or affect any market in which Plaintiff could sell the
Briefs. Finally, Lexis’s use benefitted the public and caused no harm to Plaintiff, and comported
with the public’s right to access and copy judicial documents. As these facts are not in dispute,
this Court should grant Lexis’s motion for summary judgment on the grounds of fair use.
II.

LEXIS HAD AN IMPLIED LICENSE TO USE PLAINTIFF’S BRIEFS.
The undisputed record compels the conclusion that Plaintiff authorized Lexis’s use of the

Briefs through an implied license. Non-exclusive licenses may be implied through the parties’
conduct. See EMI Latin v. Bautista, No. 03 Civ. 0947, 2003 U.S. Dist. LEXIS 2612, at *36
(S.D.N.Y. Feb. 24, 2003) (citing Graham v. James, 144 F.3d 229, 235 (2d Cir. 1998)); see also 3
MELVILLE B. NIMMER AND DAVID NIMMER, NIMMER ON COPYRIGHT § 10.03[A] (Matthew
Bender, Rev. Ed.) (“When the totality of the parties’ conduct indicates an intent to grant such
permission, the result is a nonexclusive license.”).
For at least seven years, Lexis has made legal documents available through its BPM
product in reliance on the fact that attorneys who publicly file their legal documents know that
those documents can be accessed and copied by anyone. In fact, Lexis receives requests directly
from attorneys and legal organizations to make their legal documents available as part of the
BPM product. (St. 8.) At least one public agency requires that Lexis include the agency’s legal
documents on Lexis’s service as a condition to signing an exclusive subscription agreement.
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(St. 9.) Plaintiff was aware that filing briefs in federal court rendered the Briefs publicly
available. (St. 64.) Plaintiff also knew that PACER permitted and indeed encouraged copying of
the Briefs. (St. 66.) Plaintiff, however, made no attempt to limit Lexis’s copying. (St. 56, 57,
79.)
Lexis made no secret of its BPM product. Lexis marketed the product directly to
practicing attorneys, such as Plaintiff, who author legal documents. (St. 6.) White testified that
he became aware that Lexis included Plaintiff’s legal documents in its databases perhaps two
years ago, yet White never contacted Lexis to object to its use of the Briefs prior to filing the
complaint. (St. 77, 79.)
Given Plaintiff’s knowledge of Lexis’s use of the Briefs and its decision not to object to
that use—particularly where Plaintiff publicly filed the Briefs knowing that Lexis was permitted
to access and copy those Briefs—Plaintiff’s conduct is sufficient to grant Lexis an implied
license for its use of the Briefs. See EMI Latin, 2003 U.S. Dist. LEXIS 2612, at *36 (record
company likely to succeed on implied license defense because singer did not object to
company’s use of his songs or advise anyone that the songs could not be used); Keane Dealer
Servs., 968 F. Supp. at 947 (plaintiff’s knowledge of a use, coupled with “silence in the face of
[that] use,” could constitute an implied license); Field v. Google Inc., 412 F. Supp. 2d 1106,
1116 (D. Nev. 2006) (“An implied license can be found where the copyright holder engages in
conduct ‘from which [the] other [party] may properly infer that the owner consents to his use.’”)
(internal citations omitted).

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CONCLUSION
For the reasons set forth above, as well as in the Memorandum of Law in Support of
Defendant West Publishing Corporation’s Motion for Summary Judgment, incorporated herein
by reference, Lexis respectfully requests that this Court grant Lexis’s motion for summary
judgment dismissing all claims against Lexis.
Dated: October 5, 2012
New York, New York

MORRISON & FOERSTER LLP
/s/ James E. Hough
James E. Hough
Craig B. Whitney
Cindy P. Abramson
1290 Avenue of the Americas
New York, NY 10104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
James F. McCabe (admitted pro hac vice)
Paul Goldstein (admitted pro hac vice)
425 Market Street
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant
LexisNexis, a div. of REED ELSEVIER INC.

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