On February 22, 2012, attorneys Edward White and Kenneth Elan filed a lawsuit against West Publishing and Reed Elsevier, alleging among other things that the publishers had infringed their copyrights by downloading their legal briefs and motions from the federal PACER website, ingesting the briefs into their own Westlaw and Lexis databases, and making the documents available to subscribers.
The attorneys initially pursued a class action suit on behalf of all attorneys whose works were included in the databases, but the court refused to allow the case to proceed as a class action. In their defense, both West and Reed Elsevier invoke fair use, arguing that by adding metadata and collecting the work in a searchable research tool, they were engaged in a transformative fair use. The argument is similar in many respects to the arguments relied upon by the Hathitrust in defense of its corpus of digitized works. Consequently, the publishers’ arguments in this case are in tension with the position of the Association of American Publishers in the Hathitrust case. Similarly, there are tensions between Reed Elsevier’s expansive vision of fair use in this case and the narrow view argued for in a brief the publisher financed in the Georgia State University e-reserves case.
In February 2013, the court issued a brief notice that it had decided the case in the publishers’ favor, with a full decision explaining the court’s reasoning to come later.
In July 2014, the district court issued its full memorandum and order, explaining that three of four fair use factors weighed in favor of a finding of fair use while the remaining factor was neutral. The district court focused heavily on the transformative use of the briefs in an interactive legal research tool that was significantly different from the original purpose of the briefs. The district court also noted that the use of the briefs in the databases were "in no way economically a substitute for the use of the briefs in their original market" and therefore did not find any market harm.