May 04, 2006
Copyright and Deal Documents
Posted by Gordon Smith

Last week, at the Harvard Conference on Case Studies, John Coates offered a fascinating and harsh critique of the lawyering in the Oracle-PeopleSoft takeover battle (described expertly in a case study by David Millstone and Guhan Subramanian). One of John's big-picture points was that deals lawyering generally suffers from the fact that quality is difficult to evaluate, even after the fact, and firms are not rewarded for innovation.

With respect to this last point, we all know (don't we?) that contracts can be copied freely in subsequent transactions, without fear of liability under copyright. The usual justification for such appropriations is "fair use," and an alert reader -- former student Chris Phillips -- noticed that the W$J Law Blog is blogging about the fair use of litigation documents and quoting from this article by Davida Isaacs, a professor at the Salmon P. Chase College of Law. From the abstract:

[C]ourts should permit attorneys’ unauthorized adaptation of copyrighted litigation documents as “fair use” for two reasons. First, penalizing attorneys would not advance copyright’s goal of providing incentives to create additional works, because subsequent unauthorized use does not diminish their market value. Second, because of the presence of market failures, the copyright owners do not license their documents, as one might otherwise expect: unfortunately, both a substantial number of hold-outs as well as transaction costs thwart frequent licensing; moreover, the marketplace is ill-equipped to permit the authors to capture the cumulative increase in value caused by the benefit to the public welfare from the dissemination of the documents.

Are you convinced?

P.S The article actually begins with a vignette about copyrighting contracts, not litigation documents.

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