IP Tech Knowledgy

Sharing written materials on a website or in a group forum requires permission of each author, unless an exception under copyright law applies.  Affinity groups like to share information to help educate group members. The internet makes reposting articles, regulations, and practice tips convenient and informative. Even for lawyers, posting sample discovery questions or transcripts can be a good resource for the group.  But be careful not to infringe on the original author’s copyright.

There are “safe harbors” for circumstances under which a website can post or make available material from others:

Providing a link to an article that resides on another website is acceptable, because it is not making a copy of the other website.

Obtaining a license from the owner of the original work also avoids infringing. Be sure the license allows the types of usage intended on your site and by your readers. If the source site posts a license, be sure the terms fit the way your group will share and use the material from the source.

Use only material in the public domain. Government works are not protectable by copyright, such as regulations and court opinions.

Only use a minimal amount of the original, and only use this exception infrequently. Copyright law allows certain usage as a “fair use,” but only under certain parameters that measure the purpose of the use, the nature of the original used, the amount of the original, and the effect on the potential market of the original.

Using a work for your group’s educational purposes can be a fair use, but at some point, taking too much becomes unfair, and infringing. Similarly, a non-profit might have a marginally better claim that its use is a fair use, but at some point, the excessive use becomes unfair, and infringing.

Some groups have unique purposes or use materials that require deeper consideration. As one example, lawyers may want to pass around cases, case summaries, or even court and deposition transcripts.  Cases are written by governmental employees – judges – and are available for anyone’s use. Case summaries or articles are creative synopses and are protected by copyright, and thus require a license for use.  

Transcripts need a special analysis. Transcripts of court proceedings or that are introduced into evidence become part of the case that is a public record and are available to be copied. For transcripts not introduced, there is no clear rule or precedent. Some cases have found that the transcriber does not own a copyright in the work because there is no added creativity to making a verbatim transcript. Some case found that like all client work papers, the client owns deposition transcripts. Private deposition transcripts may contain confidential information that could create liability if shared. Unless the transcript is introduced into the court proceeding, or the client, and perhaps each party to the dispute, approves the usage, lawyers sharing transcripts in a group have a potential risk.

Any sharing of materials with a group requires close analysis of relevant copyright principles.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com